Dunn Undone

Ever have one of those nightmares where you wake up in sheer terror, breath a sign of relief that it is over, go back to sleep…..and plunge right back into it?

The news this week that the State Bar of California has filed discipline charges against its former executive director, Senator Joe Dunn, felt something like that to me. And probably to him too.

I thought we had come to the end of this nightmare in March 2017 when an arbitrator threw out the last of Dunn’s wrongful termination claims against the State Bar. Now, more than five years later, we get to re-live it all again. For those blessed enough to have forgotten, here is the capsule summary:

In September 2010, the State Bar of California chose Dunn as its new executive director to replace the long serving Judy Johnson, who went on to better things as Superior Court judge in Contra Costa County. Part of the reason for his selection was to repair the State Bar’s poor relationship with the Legislature, a perennial project that has been around since circa 1985. His appointment was nakedly political, something almost everyone acknowledged at the time. Dunn had been a political power in the Legislature, CEO and Executive Director of the California Medical Association, one of the most powerful lobbies in Sacramento. To say he was well-connected is probably the understatement of the century. Howard Miller, outgoing State Bar President and Girardi’s law partner before his fall from grace, praised his partner’s friend as “superbly qualified.” Incoming State Bar President Bill Herbert (as quoted in the Met News) praised Dunn as “an exceptional candidate” who “stood out” due to his political background, experience with the non-profit CMA, and “his personality and character.” Dunn is “incredibly thoughtful and considerate,” and inspires trust and confidence in his judgments, statements and decisions,” Hebert said. “He’s got a great reputation and he’s very well respected around the state on both sides of the aisle.” Hebert added that he was “looking forward to collaborating with Joe, the senior executive team and our legislative affairs team to improve our relationship with all our stakeholders” during his tenure as president.

One of the structural features of the discipline reforms was the remove the Executive Director from oversight of the discipline system, instead vesting that in an appointed Chief Trial Counsel subject to confirmation by the State Senate, who would be report directly to the Regulation and Discipline Committee of the Board of Governors (now known as the Board of Trustees.) The idea was to remove the discipline system from State Bar politics. Despite this, one of Dunn’s first actions as ED was to sabotage the pending appointment of Chief Trial Counsel Jim Towery by working behind the scenes to deny Towery the confirmation hearing he needed to keep the job. Swooping into the power vacuum, Dunn then fired the entire senior management in the Office of Chief Trial Counsel (OCTC). But contrary to Dunn’s attorney Mark Geragos, Dunn did not fire San Francisco’s Assistant Chief Trial Counsel Jeff Dal Cerro, who resigned some months later after experiencing the micro-management style of Jayne Kim. These manager-lawyers, who had dedicated more than a century of their collective experience to running OCTC, were unceremoniously escorted from the State Bar building by security. Dunn then engineered the appointment of a protege, Jayne Kim, as Chief Trial Counsel, implying that a new era of zealous disciplinary enforcement was at hand with his comment “there is new sheriff in town” (see Kafkaesq Meet the New Boss, posted, amazingly, way back on July 14, 2011.)

Dunn’s imperious reign continued until 2014. He would enter a room surrounded by his entourage, including the enigmatic Tom Layton, who seemed to be acting his bodyguard. During this time, the State Bar was roiled by the Legislatively created Governance in the Public Interest Taskforce (GITPIT) which was engaged in its multi-year mission of reforming the State Bar’s governance structure. Various reforms were proposed, including random trust accounts, which a proposal ultimately rejected by the Board of Governors. Dunn’s protege Jayne Kim brought her own imperious micro-management style to the Office of Chief Trial Counsel, dispensing with subordinate managers and essentially making every lawyer and investigator a direct report to her, leading to much unhappiness in OCTC. One Deputy Trial Counsel described to me Kim’s middle of night telephone calls chewing him over his actions on a case. That management style would ultimately prevent Kim from serving a second four-year term as Chief Trial Counsel, when her re-nomination was met with vociferous opposition from the State Bar’s unionized workforce. From the outside, Kim and Dunn appeared to be as thick as thieves, a perception that would be dramatically changed when things fell apart in 2014.

The investigation and report commissioned by the Board of Governors from the Munger Tolles and Olsen firm and issued in October 2014 describes how they fell apart. The report details the unraveling of the Dunn regime in Shakespearian terms, including the falling out between Dunn and his onetime protege Kim. The report, foreshadowing the even bigger fiasco to come, discussed the perceived undue influence of the Giardi Keese firm over the Executive Director at pages 20-21 but concludes that “….we have not uncovered instances of any sort of misconduct involving or untoward influence exerted by Tom Girardi or his firm, the closeness of the relationship between some senior managers and that firm does raise potentially troubling perceptions that the Board should take action to rectify going forward.”

Oh, Cassandra!

Now five years after it looked like we were done with Dunn, we are re-visiting events that seem like ancient history. The determination to file discipline charges was made by Special Deputy Trial Counsel, independent lawyers who represent the State Bar when the Office of Chief Trial Counsel has a conflict as provided in State Bar Rule of Procedure 2201:

(a) The Chief Trial Counsel shall recuse the Office of Chief Trial Counsel when:
(1) Any inquiry or complaint or other matter within the jurisdiction of the Office of Chief Trial Counsel is about:
i. The Chief Trial Counsel;
ii. An attorney employed by the State Bar;
iii. An attorney member of the Board of Trustees; or
iv. An attorney who within the past 12 months has had a personal, financial, or professional relationship to the Chief Trial Counsel; or,
(2) The Chief Trial Counsel believes the circumstances of any inquiry or complaint or other matter within the jurisdiction of the Office of Chief Trial Counsel creates an appearance that the office may not exercise its discretionary functions in an evenhanded manner and that those circumstances are so grave as to render it unlikely that an attorney will receive fair treatment or that the public will not be protected.
(b) The Chief Trial Counsel may recuse the Office of Chief Trial Counsel when:
(1) Any inquiry or complaint or other matter within the jurisdiction of the Office of Chief Trial Counsel is about:
i. An attorney, who within the past 12 months has had a personal, financial, or professional relationship to the State Bar, its employees, other than the Chief Trial Counsel, or a member of the Board of Trustees; or
ii. An attorney member of any State Bar committee or commission; or
(2) To avoid the appearance of any impropriety, when it appears that the attorney who is the subject of the inquiry or complaint or other matter will not receive fair

State Bar Rule of Procedure 2201

The long gestation of this rather small case has been explained as result of the slow operation of the Special Counsel process. Suspicion is inevitable that the timing has something to do with the Girardi scandal. But the caption on the Dunn matter bears an OCTC case number from 2017, indicating the investigation was probably opened soon after Dunn’s civil action was dismissed. This predates the eruption of the Girardi scandal in 2020. The Special Deputy Trial Counsel assigned to the matter are independent lawyers with impeccable reputations for integrity. The notice of discipline charges is not detailed, even by the notice pleading standard in State Bar Court, and precisely tracks the October 2014 MTO report, alleging three counts of moral turpitude in violation of Business and Professions Code section 6106, based on the alleged misrepresentations about opposition to AB 852 and the funds to be used for the Mongolia trip. None of this has any direct bearing on Dunn’s relationship with Girardi. Moreover, the narrow charging probably means that this proceeding is unlikely to provide any information on the burning question: did Girardi exercise undue influence on the State Bar to avoid scrutiny?

We may never know the answer to that question.

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