(a)Upon request of the assessor, auditor-controller, sheriff, or elected treasurer-tax collector of the county, the board of supervisors shall contract with and employ legal counsel to assist the assessor, auditor-controller, sheriff, or elected treasurer-tax collector in the performance of their duties in any case where the county counsel or the district attorney would have a conflict of interest in representing the assessor, auditor-controller, sheriff, or elected treasurer-tax collector.
(b)In the event that the board of supervisors does not concur with the assessor, auditor-controller, sheriff, or elected treasurer-tax collector that a conflict of interest exists, the assessor, auditor-controller,
sheriff, or elected treasurer-tax collector, after giving notice to the county co
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(a)
Upon request of the assessor, auditor-controller, sheriff, or elected treasurer-tax collector of the county, the board of supervisors shall contract with and employ legal counsel to assist the assessor, auditor-controller, sheriff, or elected treasurer-tax collector in the performance of their duties in any case where the county counsel or the district attorney would have a conflict of interest in representing the assessor, auditor-controller, sheriff, or elected treasurer-tax collector.
(b)
In the event that the board of supervisors does not concur with the assessor, auditor-controller, sheriff, or elected treasurer-tax collector that a conflict of interest exists, the assessor, auditor-controller,
sheriff, or elected treasurer-tax collector, after giving notice to the county counsel or the district attorney, may initiate an ex parte proceeding before the presiding judge of the superior court. The county counsel or district attorney may file an affidavit in the proceeding in opposition to, or in support of, the assessor’s, auditor-controller’s, sheriff’s, or elected treasurer-tax collector’s position.
(c)
The presiding superior court judge that determines in any ex parte proceeding that a conflict actually exists, must, if requested by one of the parties, also rule whether representation by the county counsel or district attorney through the creation of an “ethical wall” is appropriate. The factors to be considered in this determination of whether an “ethical wall” should be created are: (1) equal representation, (2) level of support,
(3) access to resources, (4) zealous representation, or (5) any other consideration that relates to proper representation.
(d)
If a court determines that the action brought by the assessor, auditor-controller, sheriff, or elected treasurer-tax collector is frivolous and in bad faith, the assessor’s office, auditor-controller’s office, sheriff’s office, or elected treasurer-tax collector’s office shall pay their own legal costs and all costs incurred in the action by the opposing party. As used in this section, “bad faith” and “frivolous” have the meanings given in Section 128.5 of the Code of Civil Procedure.
(e)
If the presiding judge determines that a conflict of interest does exist, and that representation by the county counsel or district attorney through the creation of an
ethical wall is inappropriate,
the board of supervisors shall immediately employ legal counsel selected by the presiding judge to assist the assessor, the auditor-controller, sheriff, or elected treasurer-tax collector. The assessor, the auditor-controller, sheriff, or elected treasurer-tax collector may recommend specific legal counsel for selection by the presiding judge. The board of supervisors may also separately recommend specific legal counsel for selection by the presiding judge. When selecting counsel pursuant to this section, the presiding judge shall consider the counsel compensation rates prevailing in the county for similar work.
(f)
As used in this section, “conflict of interest” means a conflict of interest as defined in Rule 1.7 of the Rules of Professional Conduct of the State Bar of California, as construed for public attorneys.
(g)
This section shall also apply to any matter brought after an
assessor, auditor-controller, sheriff, or elected treasurer-tax collector leaves office if the matter giving rise to the need for independent legal counsel was within the scope of the duties of the assessor, auditor-controller, sheriff, or elected treasurer-tax collector while in office, and the assessor, auditor-controller, sheriff, or elected treasurer-tax collector would have been authorized under this section to request the appointment of independent legal counsel.