The legal careers of two Orange County supervisors and whether they intersect with their public duties are raising questions among good government and ethics experts.
Supervisors Todd Spitzer and Shawn Nelson are both prominent local attorneys, and each report substantial income from their law firms on state-mandated disclosure forms. Spitzer has reported receiving up to $100,000 annually since he took office in January 2013, and Nelson more than $100,000 in each year since he become supervisor in 2010.
But beyond that, very little is publicly known about who their clients are, or more specifically, how their income is generated.
In large measure, these unknowns are due to the scope of the state's disclosure requirements. Elected officials in California who are also attorneys are generally required to list clients who paid their law practice at least $10,000 per year, if they’re the sole owner of the practice. The dollar threshold is higher if they just have a partial ownership stake in the firm.
Neither Spitzer nor Nelson have any clients who've paid above the threshold, according to their filings, known as form 700s. And both provide explanations.
But there are additional aspects of Nelson's and Spitzer's situations that raise questions.
Nelson, for example, claims he divested himself from his personal injury firm, Rizio & Nelson, the day he took office and has done no legal work since then, other than miscellaneous “close-out" activities for his former clients.
“I don’t practice law, I haven’t in five years. I don’t own any interest in the firm anymore,” said Nelson. Under state disclosure laws, that appears to exempt Nelson from having to reveal any clients of the firm.
However, Nelson’s claims appear to contradict his own disclosures, which say he kept an ownership stake in the firm, as well as a recent advertisement by the firm that described him as being “of counsel.”
In addition to his income from the law firm, Nelson reported that he has a significant investment in the firm.
His disclosure forms for 2011 through 2014, in particular, state that he owned at least 10 percent of the firm, with his ownership stake valued at between $100,000 and $1 million.
In an interview, Nelson insisted his ownership ended when he took office in 2010, which could mean that he filled out the forms inaccurately. But he did not return a follow-up call seeking clarification.
(Click here to download both supervisors' form 700 filings. It's a large, compressed ZIP file.)
If the forms are accurate, they could trigger disclosure requirements for clients who paid the firm above a certain threshold.
The "of Counsel" Question
There are concerns that go beyond specific questions of reported income and/or ownership.
In Nelson’s case, a recent advertisement for Rizio & Nelson featured Nelson prominently, listing him as “of counsel” to the firm and his title as a county supervisor.
In the December ad, which appeared in the Riverside County Bar
Association’s magazine, Nelson is pictured with the title “Orange County Supervisor Of Counsel,” alongside his longtime colleague Greg Rizio.
(Click the image for the full, un-cropped version.)
Under State Bar rules, “of counsel” can only be used in a law firm advertisement when the attorney has a “close, personal, continuous, and regular” relationship with the firm.
Asked about his “of counsel” title, Nelson reiterated that he does no legal work, but is available if the firm needs him.
“I don’t work, nor do they ask me. I think for Greg’s benefit, he’s welcome to use my face in any way,” Nelson said. “‘Of counsel’ is a very polite way of putting it. I’m available if they need me; phone hasn’t been ringing.”
A leading government ethics expert says that while elected officials shouldn’t be penalized for “maximizing their honest income,” the ad doesn’t seem to pass the “sniff test.”
“At a certain point it’s just a matter of good form, or good taste,” said James Abruzzo, co-director of the Institute of Ethical Leadership at Rutgers Business School. “There are certain things that just don’t pass the sniff test, and I think that this just might be one of them.”
Asked about Abruzzo’s take, Nelson said “he’s welcome to his opinion. Remember, I’m not soliciting the business.”
Additionally, ethics expert Tracy Westen said the ad’s use of Nelson’s elected office title “raises the implication that if you hire me as a lawyer, I’ll use my political contacts to further your case.”
While Nelson’s disclosure forms reveal that he receives more than $100,000 annually from Rizio & Nelson, he declined to elaborate when asked about the terms under which he divested from the firm.
“It’s what I get. I mean, it’s not your business really,” Nelson said. “What I get is based on the circumstances that existed the day I left, and nothing that happened” since then.
When asked specifically whether he had plans to re-join Rizio & Nelson after he is termed out as supervisor in early 2019, he said no, but left the door open.
“I don’t have any expectation that I will ever work there or partner there again," Nelson said. But, he added, "Anything’s possible.”
Can a Supervisor Moonlight?
Spitzer, who is supervisors' chairman, acknowledges that he's still an attorney actively involved in representing clients, which has led to criticism from Nelson and others.
He declined to voluntarily say who his clients are, citing attorney ethics rules. “It’s unethical for me to do that,” Spitzer said. “As a lawyer you can be disciplined from the state bar for disclosing clients.”
No clients paid him more than $10,000 annually in 2013 and 2014, Spitzer added. He also declined to reveal the number of clients he has, again citing a prohibition on such disclosures.
There are also questions as to whether Spitzer’s law practice presents the appearance of a conflict, given that his website advertises that he meets on behalf of clients with law enforcement agencies that he oversees as a county supervisor.
Under his website’s “Services” section, Spitzer lists: “Meeting with various law enforcement agencies, including police, sheriff and district attorney to ensure that Marsy's Law Rights are being respected and followed.”
As a supervisor, Spitzer helps oversee the purse strings for the sheriff and DA, such as approving their budget and grant requests and negotiating labor agreements that set employee salaries.
Abruzzo said this also doesn’t pass the sniff test.
It presents “the appearance of a conflict of interest, and in order to avoid that or to mitigate it, there needs to be disclosure,” Abruzzo said.
Additionally, he added, if Spitzer is representing clients before the sheriff and DA, he should recuse himself from any matters involving those offices as a public official, including budget approvals.
Spitzer said he agrees with Abruzzo on this.
“I agree, and that’s correct,” said Spitzer, adding that it’s why he hasn’t taken on any new Orange County cases since taking office.
“I have no cases that involve Orange County, unless I already had that case before I was elected,” Spitzer said.
Spitzer said none of his cases involved him speaking with the sheriff, though in some cases he did speak with the DA and public defender’s offices on behalf of clients.
One of those cases is ongoing, in which he represents the family of murder victim Robbin Brandley, Spitzer said.
While a supervisor in April 2013, Spitzer also helped a domestic violence victim, Lori Galvin, write a legal claim against the county seeking restitution and billed her $3,400 for it, according to the Orange County Register.
Spitzer also didn’t mark his income on one of his disclosures.
On his filing for 2013, Spitzer didn’t mark how much money he made from his law firm, or declare whether or not there were any clients over $10,000. The boxes for those sections were left blank.
After Voice of OC brought it to his attention Wednesday, Spitzer said it was an oversight, and filed an amended disclosure Thursday filling out that section.
“That’s why I support an ethics commission, okay…It’s good that another set of eyes is looking at this,” said Spitzer. “We want education and compliance. And clearly I needed to clarify that in that document. I’m really, really glad you brought it to my attention.”
Additionally, after speaking with Voice of OC on Wednesday, Spitzer said he realized he had over-reported his law firm income. His original forms showed over $100,000 per year in law office income for the last two calendar years.
His amended disclosures on Thursday reduced his law office income to between $10,000 and $100,000.
“I was overstating the income,” Spitzer said, adding that he previously had been adding in non-law office income with his legal income, which led to the higher amount.
In addition, there’s the overall question of whether a supervisor with full-time pay of more than $150,000 per year should be moonlighting as an attorney.
Spitzer defended his outside legal work, saying he does it on his own time.
“I get up at 3 o'clock in the morning, okay. Everybody knows I don’t sleep,” Spitzer said.
As for what he does between 3 and 7 o’clock in the morning, he added, “I think I’m entitled to have that four hours to myself.”