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State Bar prosecutor Alan Konig lost heavy artillery in his ongoing battle with his bosses. But his lawyer thinks he’s retained enough ammunition to win the day. On Thursday, a federal judge in San Francisco dismissed the State Bar as a defendant in a retaliation suit filed by Konig and threw out all but one whistle-blower charge and his First Amendment claims against four of his superiors as individuals. U.S. District Judge Martin Jenkins held in his 13-page ruling that Konig, a five-year State Bar employee, had pleaded sufficient facts to allege that his bosses had retaliated against him after he complained about possible improprieties by them and a State Bar Court judge. “This type of speech, regarding illegal activity within a government agency, is protected by the First Amendment,” Jenkins wrote. “Moreover, [Konig] alleged that in response to these complaints, defendants subjected [him] to harassment, threats, disparate and unfair treatment, and permitted a hostile work environment.” Kerr & Wagstaffe partner James Wagstaffe, who represents the State Bar, hailed the ruling. “It narrows the case substantially, and preserves the State Bar’s overall immunity,” he said Friday. “We think it puts the case in a context that will lead to its ultimate dismissal.” Mayo & Rogers partner Richard Rogers, who represents Konig, disagreed. “The case isn’t gutted at all,” he said. “The claims for relief are viable. There’re just some theories that are knocked out. Basically, the court case is fully intact.” Konig couldn’t be reached for comment, and Rogers said he is on leave from the State Bar until Oct. 4. “He’s been taking time off for stress,” Rogers said. Konig, who has handled some fairly prominent cases for the State Bar, sued his employers in June, claiming that he had been subjected to a hostile work environment and denied his free-speech rights after complaining about actions by his own bosses and State Bar Court Judge JoAnn Remke. He had criticized the State Bar’s supposedly overly cautious prosecutorial tactics and accused Remke of disregarding precedent and issuing orders that violated the constitutional rights of the State Bar and courtroom witnesses. Konig claimed retaliation after months of run-ins with his employers, which culminated in his being placed on a five-month “performance improvement program” in May and relieved of all trial duties. In his suit, Konig named not only the State Bar but also State Bar Assistant Chief Trial Counsel Lawrence Dal Cerro, Deputy Chief Trial Counsel Russell Weiner, Supervising Deputy Trial Counsel Allen Blumenthal and Deputy Executive Director Robert Hawley. Judge Jenkins dismissed the State Bar from the suit altogether, holding that it has sovereign immunity under the Eleventh Amendment, which bars suits seeking damages or injunctive relief from “a state, an ‘arm of the state,’ its instrumentalities or its agencies.” Jenkins noted that Rogers made “an interesting argument” that some federal cases insinuate that the State Bar might not be a true state agency. Nonetheless, the judge said he was bound by prevailing precedents from the Ninth Circuit U.S. Court of Appeals. Jenkins likewise tossed Konig’s Fourteenth Amendment claims and his Tameny claim of a violation to public policy. Konig’s lawyer expressed his intention to replead some of the dismissed claims. Jenkins threw out Konig’s state law retaliation claims, saying they didn’t comply with the California Tort Claims Act, which requires that no suit can be filed against a public entity until a complaint against it has been presented and rejected. Rogers said Konig is in the process of complying with that requirement. In its request for dismissal, the State Bar had argued that Konig was an insubordinate employee who “began a campaign of inappropriate and defiant comments” toward State Bar Court judges and “only turned up the volume” when his bosses tried to correct his alleged misconduct. “Our view,” Wagstaffe said Friday, “continues to be that the evidence will show that Mr. Konig was legitimately under supervision for having demonstrated an inability to perform his trial duties. The essence is that he was disrespectful in court, and the State Bar appropriately responded. “There is no constitutional right to be insubordinate.” The case is Konig v. State Bar of California, 04-02210. Associate Editor Mike McKee’s e-mail address is [email protected].

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