Ethical lapses blamed on Tourism Marketing District

Looking to avoid a $2.6 million payout to opposing attorney Cory Briggs, legal counsel for San Diego's Tourism Marketing District is asking that a judge disqualify Briggs and his firm and wipe out any opportunity for him to collect attorney fees.

Late last year, a judge dismissed the lawsuit filed by San Diegans for Open Government, the group Briggs represents, after the Tourism Marketing District amended the district so as not to include hotels with fewer than 70 rooms. That decision rendered the lawsuit moot, however, setting the stage for another legal fight over attorney fees.

Briggs’s disqualification, argue the hotelier's attorneys (who themselves collected more than $3 million in tourism marketing dollars from the district) is needed because of his refusal to turn over a confidential email from the district attorneys that mentioned their legal strategy and their acknowledgement that the law was not on their side. District attorneys say they mistakenly gave Briggs the email in a public records request and Briggs should have known it was confidential and returned the document.

"The bell cannot be un-rung; case law is clear the only remedy available to protect the integrity of the judicial process is to disqualify [Briggs]," reads a heavily redacted January 27 court motion filed by Pasadena-based law firm Colantuono, Highsmith, and Whatley.

"[Briggs’s] refusal to return the documents or even to meaningfully discuss what to do about his receipt of privileged information, or, the facts surrounding his receipt of that information invites inquiry as to what other privileged materials counsel might have, how he might use those documents in future challenges to the Tourism Marketing District assessment, or, whether he might disclose those documents to counsel representing new challengers to the assessment or to the press."

In regard to "new challengers to the assessment,” while the case filed by San Diegans for Open Government is officially over and has been for several months, two new lawsuits have been filed that also challenge the legality of the hotel tax.

In opposition papers, Briggs accuses the district of looking to get out from having to pay the $2.6 million in fees that his firm is owed for fighting the five-year-long legal battle. He said the Tourism Marketing District knew what they were handing over. That much was seen in a letter from the district's executive director, Brian Hughes, when fulfilling the public records request.

"Ironically, though, the 'ethical lapses' here are by [the Tourism Marketing District] for failing to disclose that the document in question was voluntarily provided to Briggs under cover of a letter from [Hughes], assuring Briggs that: 'In consultation with counsel, I have removed certain responsive documents from those we are making available to you, including those protected by the attorney-client privilege and the attorney work product doctrine.'”

Briggs said he also had evidence that the district had already shared the same email with a member of the public, thus making groundless any claim of attorney-client privilege.

“[The Tourism Marketing District's] motives are transparent, and obviously malign. [It] does not really care about the document (since it has no present bearing on anything), and it does not really care about whether [San Diegans for Open Government] is disqualified (since, again, the case is over). Indeed, the very concept of moving to disqualify Briggs as a means to preventing his claim to attorneys’ fees is misguided, since [its] fees were already earned before any supposedly 'unethical' conduct even took place…. Rather, [the district's] only goal appears to be to sway this court’s view of [San Diegans for Open Government's] legitimate claim for more than $2 million in attorneys' fees."

The motion will be heard by judge Joel Wohlfeil on April 6.