Joe Dunn ()
LOS ANGELES — The State Bar of California and its former executive director slugged it out Wednesday in a JAMS courtroom over the legality of his termination from the agency two years ago.
Dunn’s attorneys from Geragos & Geragos told arbitrator Edward Infante that the bar cut him loose after he accused its Office of Chief Trial Counsel of manipulating statistics about its backlog of attorney discipline cases.
“That data gets sent to the board and the Legislature,” Geragos associate Ben Meiselas said during a 90-minute opening statement. “He did not want to lie to the Legislature.”
The Bar’s board of trustees responded by terminating Dunn without cause, denying him $192,000 in severance, and leaking findings from an internal investigation that the board never voted to accept. “You just don’t do someone dirty like that,” Meiselas said.
Hueston Hennigan partner John Hueston said Dunn was let go for “one simple reason” — that he could no longer lead the bar. It had nothing to do with “so-called whistleblower letters” that arrived at the bar after Dunn knew the ax was about to fall, Hueston said. Instead it was about ethical lapses and poor management, he said. Dunn’s first witness, State Bar President James Fox, accused Dunn of “lying” and “dishonesty,” but conceded under questioning by Mark Geragos that a week before the Nov. 7 termination, the board had voted only to draft a private reprimand.
Wednesday’s proceedings offered a rare inside glimpse at an arbitration that would normally be private. It had the feel of an informal bench trial, one that came with a sweeping view from high up a Los Angeles skyscraper. Infante, a former chief U.S. magistrate judge in San Jose, remained poker-faced throughout and mostly let the two sides try their cases. He overruled most objections while occasionally reminding both sides that he would decide later whether evidence was entitled to any weight.
Dunn is a former state senator who ran unsuccessfully last year for Loretta Sanchez’s congressional seat. He asked that the arbitration be open in an effort to clear his name, and the bar agreed. But both sides had to endure a lot of sullying as they made their pitches Wednesday.
Hueston quoted from each declaration of the 15 trustees who voted for Dunn’s ouster—“ineffective manager,” “serious misrepresentations” and on and on as Dunn flushed somewhat at counsel’s table.
Geragos and Meiselas, meanwhile, revealed that Fox had helped former Chief Trial Counsel Jayne Kim prepare a 2014 complaint against Dunn that led to the bar’s internal investigation. Geragos insinuated that Fox parlayed his work on the complaint into his appointment to the bar board in July 2014.
He questioned Fox repeatedly about why he didn’t reveal his role to other trustees or recuse himself from the votes on Dunn’s employment. “Anyone who picked up [Kim’s] report would not know that Jim Fox provided input into that report?” he asked. Fox agreed, but said trustees knew of his stance and that there was no ethical bar to his voting.
Dunn hired Fox and Kim in 2011—Kim as chief trial counsel, Fox as her special assistant —with a mandate to reduce the discipline backlog. There seems to be no dispute that at some point the bar temporarily underreported the number of backlogged discipline cases. Dunn and his attorneys say Kim was fudging the numbers; Hueston said Kim had made a simple data error when trying to align the bar’s internal and external reporting. “The trustees and Mr. Dunn all agreed it was a product of an innocent misunderstanding,” Hueston said.
Meanwhile, the California Supreme Court was privately urging the bar to oppose Assembly Bill 852, a measure that would authorize the bar to crack down on unauthorized practice of law. Beth Jay, then the principal counsel to Chief Justice Tani Cantil-Sakauye, had discussed the court’s position at a meeting with Dunn, Kim, Fox, bar General Counsel Thomas Miller and others. Dunn later advised the board of trustees that there was “no known opposition to the measure,” and the board signed on to become a bill sponsor.
“I was amazed he would lie to the board of trustees,” Fox testified. He later advised Kim to include in her report on the matter that Dunn had personally attended the meeting with Jay.
But Geragos said Dunn was under orders not to reveal publicly the Supreme Court’s positions on legislation. He played deposition testimony from trustee Joanna Mendoza, who said the bar was simply putting token support for AB 852 “on the books at that time and dealing with it later.”
In response to Kim’s complaint, the bar hired Munger, Tolles & Olson for its internal investigation into Dunn’s management. The firm found that Dunn misled the board and the public about AB 852 and the expenditure of funds on a bar trip to Mongolia, and recommended terminating Dunn or Miller.
Geragos and Meiselas ridiculed the report as a $350,000 boondoggle into only $5,000 in expenses, and said the only irregularities owed to coding for which Dunn and trustees alike relied on admin support.
Geragos also homed in on whether the Bar board had actually accepted the Munger report’s findings. Fox insisted that it did so at its Oct. 31, 2014, meeting. But Geragos said board minutes show the board only accepted the report so that Munger could get paid, not its actual findings. In fact, trustee Janet Brewer had made a motion to accept the findings, but it was not even seconded, let alone voted on, Geragos said.
Fox had also moved at the Oct. 31 meeting to terminate Dunn, but it also failed, by a 4-10 vote (Fox, David Pasternak, Miriam Krinsky and Terrance Flanagan were the four votes, according to Geragos). Instead the board voted to have Pasternak start working on a draft of a reprimand that could be delivered privately.
What happened between that meeting and the Nov. 7 meeting where the board voted to let Dunn go, Geragos pressed. What else could it have been but the letters from the Geragos law firm blowing the whistle on the underreporting of the discipline backlogs?
Fox said neither he nor other board members knew at that time that Geragos was representing Dunn. The board had simply needed more time to “digest” the Munger Tolles findings. He said the board also received “new data” from separate counsel Carol Stevens at Burke, Williams & Sorenson, but that he could not reveal it due to attorney-client privilege.
Hueston Hennigan partner Moez Kaba asked Fox to clarify if anything else had been put before the board other than Dunn’s conduct and honesty. That drew Geragos’s most stormy objection of the day. “That opens the door to everything Carol Stevens provided,” Geragos told Infante.
Infante overruled the objection.