An appellate court has ruled against a former San Diego Unified Port District commissioner who sued the district’s former attorney over faulty legal advice.

In May 2003, ex-Commissioner David Malcolm pleaded guilty to a felony conflict-of-interest charge. While he was on the Port board, Malcolm was being paid $20,000 per month plus incentives by Duke Energy, a port tenant. Port attorney David Chapman advised Malcolm and the Port board that Malcolm’s disclosure of the contract and recusal from matters involving Duke was enough to satisfy conflict of interest laws.

However, the district attorney undertook a criminal investigation of Malcolm, who eventually pleaded guilty to a conflict of interest. Malcolm then sued the Port and Chapman for damages. San Diego County Superior Court Judge John Meyer declined to grant summary judgment for the Port — but the Fourth District was willing to do so.

Malcolm pleaded guilty to willfully violating Government Code § 1090, the court stated, so “allegations that Chapman’s negligent advice caused Malcolm to commit a crime and plead guilty are immaterial.”

“Perhaps the wrongfulness of Malcolm’s conduct was not as apparent as lying under oath, but we believe the average person would readily regard it as improper notwithstanding Chapman’s inexplicable disclose and recuse advice,” the court ruled.

The case is Chapman v. Superior Court, No. D045374, 05 C.D.O.S. 5168, 2005 DJDAR 7040. It was filed June 15, 2005.