The Man With the Heavy Heart

Little has been heard from Senator Joe Dunn, the former Executive Director of the State Bar of California since he was fired and filed his wrongful termination lawsuit.   That changed this week with the filing of his first amended complaint.  It is fascinating document, both for the insight it gives into the man himself and for the small window it opens into the “tripartite relationship” between the State Bar, the Legislature and the Supreme Court.

First of all, Senator Joseph Dunn’s name is actually Senator Joseph Dunn.  I was always under the impression that use of these titles, especially after leaving office, was a matter of respect, what is called an honorific,  but apparently it has become part of his actual name, to judge from the caption.

Second, Senator (if I can call him by his first name) is sad.  In paragraph 10, he tells us that he has filed his first amended complaint “with a continued heavy heart.”   It is easy to see why.  Senator has been the victim of a cabal apparently orchestrated by the California Supreme Court to engineer his removal as ED (paragraph 4.)   That would make anyone sad.  Moreover, other members of the cabal have moved to retaliate against other State Bar employees to cover up the misconduct Senator blew the whistle on (alleged manipulation of backlog numbers), leaked a report that said bad things about Senator, and blocked the sale of the State Bar’s San Francisco building, a cause that is very dear to Senator’s heavy, heavy heart because he wants to do good things with all those millions.

 

Sad

Sad

Typically, we move from the sublime to the ridiculous, but here we will reverse order and discuss the really interesting issue underlying all this khazeray.   This is about much more than personalities.  It goes right to heart of the State Bar’s peculiar place serving two different masters (see Obrien v. Jones.)  Senator got his job because of his Sacramento political connections.  In the words of former State Bar President Bill Hebert, he was the “right man at the right time” to fix the State Bar’s poor relationship with the Legislature, in the wake of the State Auditor’s negative 2009 report on State Bar transparency, Gov. Schwarzenegger’s veto of the dues bill, the Governance Crisis (caps seem justified)   And so he did.

But the State Bar serves another master, one located in San Francisco, not Sacramento.  If the Senator is correct, someone there decided he was the wrong man at the wrong time..  Article VI, section 6  of the California Constitution, enacted by voter initiative, makes the Legislatively created State Bar a part of the judicial branch, reflecting the long standing relationship of State Bar as the administrative arm of the California Supreme Court (see e.g. In Re Attorney Discipline System, where the Court decided it could independently assess attorneys a fee to run the discipline system without Legislative involvement.)  While the levers of control that the Legislature exercises over the State Bar are relatively transparent,  the Supreme Court’s are virtually opaque. No one really knows what the Supreme Court says to the State Bar and who says it beyond everyone’s understanding that this is in Beth Jay’s wheelhouse.  Senator’s allegation that Beth Jay has been deeply involved in State Bar affairs in her capacity as principal attorney to the Chief Justice (paragraph 4) is correct but his legal conclusion this “interference” is “without constitutional, statutory or other authority”  is hard to square with Article VI, section 6, and Business and Professions Code section 6100 where the Legislature, at least obliquely, acknowledges the Supreme Court’s authority in this matter.

If true, what was the source of the Supreme Court’s disaffection with Senator?  The idea of moving the State Bar’s headquarters from San Francisco to Sacramento  seems especially important to him.  The consequences of such a move, including the probability of many  staff leaving the State Bar, creating an opportunity to recruit new staff under the Executive Director’s leadership.  It would also amount to literally moving the State Bar from the Supreme Court’s orbit to the Legislature’s turf.  The Supreme Court was not in favor of the scheme.  The California Supreme Court may also have been less than happy with Senator’s inclination to move discipline in a more punitive direction.

We can’t fully understand Senator’s pain.  As Pete Townshend reminded us, no one knows what its like to be the sad man behind blue eyes.

But if it is any consolation to Senator, he already has a place to land if his lawsuit doesn’t work out,  returning to the practice of law with his fellow Senators at The Senators Firm.   While it must be confusing to have several law partners with the same name, the Senators have the marketing advantage of invoking their government services in their very name, despite  Rule of Professional Conduct 1-400, Standard 6.  Senator Dunn is already touted on the website as “recognized as one of the country’s preeminent complex personal injury and consumer rights lawyers” before he dedicated himself to public service.   If Standard 6 gives them any trouble, they can afford to hire a good discipline defense lawyer and argue that it the discipline investigation was orchestrated by the cabal.

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