Designation On ‘Brady List’ Entitles Sheriff To Attorney

A California statute outlines the circumstances under which a county must provide independent counsel to a sheriff. Under the statute, the sheriff is entitled to counsel “in any case where the County counsel or the district attorney would have a conflict of interest in representing the assessor or the sheriff.”

Francisco Rivero is the Sheriff of Lake County. The local District Attorney announced intention to designate Rivero as a Brady officer, the consequence of which would be that if Rivero were called to testify in a criminal trial, the District Attorney would be required to disclose to the defense that Rivero had previously provided false information in an official investigation. Rivero sued the County, seeking the appointment of independent counsel for the purposes of potentially bringing a legal challenge to the District Attorney’s designation of the Sheriff as a Brady officer.

The California Court of Appeals agreed with Rivero, and ordered the County to provide an attorney to Rivero. The Court held that “we agree with Rivero that, once a trial court has made the necessary findings supporting the County’s duty to provide independent counsel for the Sheriff, the Court generally cannot place limitations on the manner in which independent counsel carries out its representation, except to define the issue or matter that is the subject of the representation. The plain language of the statute imposes a mandatory duty upon the board of supervisors to provide independent counsel for the Sheriff with respect to a dispute bearing upon the public official’s performance of his or her official duties. We discern nothing in the language of the statute that authorizes the board of supervisors or a court to limit legal tactics or actions that might be reasonably pursued by independent counsel where the requisites of the statute are otherwise satisfied.

“Here, the purpose for appointing independent counsel was to challenge the District Attorney’s announced intention and ultimate determination that Rivero was a Brady officer. It is unquestioned that the designation as a Brady officer would bear upon the performance of the Sheriff as long as Rivero remains in that office. Further, the dispute that gave rise to the duty to provide independent counsel did not end when the District Attorney designated Rivero as a Brady officer. Until Rivero is no longer sheriff or that decision is final – either because Rivero has chosen to accept it or because he has exhausted all reasonable and appropriate legal challenges to the decision – the predicate findings supporting the County’s duty to provide independent counsel to Rivero remain unchanged.

“The trial court restricted Rivero’s right to independent counsel to the period before the District Attorney made its determination to list Rivero as a Brady officer. The limitation imposed by the Court did more than simply define the dispute for which representation was to be provided; it restricted the legal options available to independent counsel in representing the Sheriff in that dispute.”

Rivero v. Lake County Board of Supervisors, 2014 WL 7475224 (Cal. App. 2014).