Metropolitan News-Enterprise


Monday, October 1, 2007


Page 1


C.A. Revives Ex-Staff Lawyer’s Suit Against State Bar




A former State Bar staff lawyer who filed an unsuccessful civil rights/whistleblower suit against the organization in federal court is not barred from suing for defamation in state court, the First District Court of Appeal ruled Friday.

Div. One revived the claim by Alan Konig, who resigned his post at the State Bar’s San Francisco office in 2004 and claims he was forced out because of his complaints of misconduct by State Bar Court judges.

He says his superiors made a number of false statements about him and his work as part of what he called “a continuous course of defamation, harassment, intimidation, hostility, and retaliation against Plaintiff because of his continued complaints and reports.”

In an unpublished opinion by Justice Sandra Margulies, the Court of Appeal rejected Konig’s claims for wrongful constructive discharge, violation of the whistleblower provision in the Labor Code, and intentional infliction of emotional distress.

Those causes of action were so similar to his rejected federal civil rights claims that a San Francisco Superior Court judge correctly granted judgment on the pleadings based on res judicata and collateral estoppel, Margulies wrote.

The defamation claim, however, should not have been dismissed, the jurist explained, because “the legal elements of defamation are sufficiently different from those of the claims that were adjudicated in federal court that the doctrine of collateral estoppel does not bar litigation of this claim.”

In his federal complaint, Konig alleged that he was subjected to retaliation and harassment in violation of his First Amendment rights, asserting a claim under 42 U.S.C. Sec. 1983, which he joined with his state whistleblower claim.

The district judge, however, ruled that the State Bar was immune from suit in federal court under the Eleventh Amendment, that Konig failed to state a cause of action under Sec. 1983, and that his state causes of action were barred because he had not complied with the Tort Claims Act.

Leave to amend was granted as to those of Konig’s superiors named as individual defendants, and Konig refiled to allege only a Sec. 1983 claim against those individuals. In granting summary judgment to those defendants, the district judge found that the “generalities” sworn to by the plaintiff failed to establish a triable claim that the defendants had deprived him of freedom of speech.

The San Francisco Superior Court complaint, Margulies explained for the Court of Appeal, made essentially the same allegations. Collateral estoppel applies, the justice concluded, to the Labor Code, constructive discharge, and emotional distress claims, which essentially alleged the same conduct that formed the basis of the First Amendment claim in federal court, although the precise elements of the various causes of action differ.

Collateral estoppel does not bar the defamation claim, however, the justice concluded, since the truth or falsity of the defendants’ statements about Konig were not at issue in the federal case.

Margulies also concluded that Konig had, in submitting his claims to the State Bar prior to filing suit, adequately complied with the Tort Claims Act. “The Tort Claims Act does not require that submissions contain even the modest specificity required of a legal pleading,” the justice explained.

The case is Konig v. State Bar of California, A113742.


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