Monday, February 9, 2009
Page 7
PERSPECTIVES (Column)
State Bar Governor Hasn’t Dropped Moot Suit Against State Bar
By ROGER M. GRACE
Michael A. Tenenbaum, a member of the State Bar Board of Governors, is maintaining an action against the State Bar to compel it to do something it’s already done. The respondent’s motion for judgment on the pleadings is slated to be heard Feb. 27 and, as that date approaches, and with the granting of the motion a near-certainty, Tenenbaum is predicting that the case will soon be settled.
As you
probably recall, after Tenenbaum outpolled two rivals last year in the
contest
for District 6’s seat on Board of Governors, there was a 49-day delay in
certifying him as the winner based on a concern that his principal law office
might actually be here in District 7. An investigation was undertaken by a
three-person committee appointed by then-State Bar President Jeff Bleich. He
was found to be eligible.
On Aug. 28—one day before the State Bar’s Board Committee on Operations was scheduled to decide the winner of the District 6 seat—Tenenbaum impatiently brought an action in mandate to compel his certification. Now, more than five months after he was officially declared the victor and more than four months after he assumed office, he is still maintaining his legal action despite its mootness. And Tenenbaum has been making settlement demands on the very organization on whose governing board he sits.
While one might well criticize Tenenbaum’s precipitousness in filing an action before a determination had been made as to which candidate would be seated and his intransigence in refusing to dismiss a plainly moot action, the State Bar might also be faulted for its foot-dragging in looking into the facts.
Tenenbaum filed to run for the board on April 1 of last year. Bells were set off because the address the State Bar had on file for him was one on Pacific Coast Highway in Malibu, which is in Los Angeles County—that is, in District 7.
Business & Professions Code §6015 provides:
“No person is eligible for attorney membership on the board unless he or she is an active member of the State Bar and unless he or she maintains his or her principal office for the practice of law within the State Bar district from which he or she is elected.”
Tenenbaum tells me he assured the State Bar employee who questioned him in a telephone conversation the day after he filed that he had moved his law office in January to a new home, a house in Ventura County’s Thousand Oaks. Ventura County is in District 6, as are the counties of Riverside, San Bernardino, San Luis Obispo, and Santa Barbara. That, he says, should have lain the matter to rest.
He had not changed his State Bar listing when he moved, he explains, because the statute and the rule requiring an attorney to supply an address merely mandates that a current address be provided, not necessarily that of the principal office.
For purposes of the requirement of informing the State Bar of where mail can be sent, Tenenbaum remarks, the Malibu address was “a perfectly valid address” because “I still had a current home in a Malibu office” (in an ocean-front duplex).
He was eligible to run for the District 6 seat, he explains, because “[m]y principal office is in my home in Ventura County.”
After the issue of his eligibility was raised, Tenenbaum changed the State Bar listing to that of 2219 E. Thousand Oaks Blvd. No. 301, Thousand Oaks, CA, 91362—the same address he used on his nominating petition. “No. 301” is a private mail box rented to Tenenbaum by The Mail Stop. He also used that address last year in connection with his second unsuccessful campaign for the Republican nomination for the 24th Congressional District seat, quixotically challenging a 20-year incumbent, Elton Gallegly…as he had two years earlier. The district covers portions of Ventura and Santa Barbara counties.
(It went unnoticed by the press that at the time Tenenbaum commenced his quest for a seat on the State Bar Board of Governors, he was also involved in the congressional campaign.)
Tenenbaum says he used a box number because “I didn’t want to give them a home address.” Yet, the Malibu address that he had given the State Bar, which was posted on the Internet, was also a home address for him. That, the lawyer says, was different; Pacific Coast Highway is a “major thoroughfare.”
Anyway, the State Bar did, it would seem, have good cause to investigate...though Tenenbaum disputes that. In his writ petition, he points to a State Bar rule that, at the time, said: “Following the canvassing board’s certification of the election results, the secretary, or his or her designee, shall publicly announce and notify each candidate of the results.”
From that, he draws the conclusion that the secretary, Executive Director Judy Johnson, was “required to publicly announce that Petitioner had been elected to the Board of Governors of the State Bar,” and that the State Bar and Johnson were “required to certify and publicly announce his election.”
The requirement was that Johnson or her designee “publicly announce” the results of the balloting. The results were announced in a July 10 press release put out by a designee. It was also announced in that press release that Tenenbaum’s “eligibility is under review by the State Bar.”
The lawyer also takes umbrage at the State Bar not having simply accepted his word that his principle office is in Ventura.
“It was perfectly reasonable for them to make an inquiry of me,” he says, but adds: “I answered that question for them early.”
Instead of his explanation sufficing, he complains, he received two communications in writing from the State Bar inquiring as to the situs of his practice and, after a probe was launched, “they hired a private investigation firm and followed me around.”
An obvious question is whether Tenenbaum meets with clients in his home/office in Malibu or his home/office in Thousand Oaks. If he confers with them in one place or the other, that would be a strong indication of where it is his shingle actually hangs.
However, Tenenbaum is not a fulltime attorney. He was listed on the ballot last year, in his race for Congress, as “Business Attorney/Entrepreneur”…and in 2006 as “Businessman/Law Professor.” He tells me that he is a “management consultant.” That role and his role in giving legal advice to businesses appear to be inseparable. Where does he meet with clients? He responds: “At their offices.”
Tenenbaum has maintained Malibu phone numbers. He also has Thousand Oaks phone numbers.
It’s understandable that the State Bar concluded that it could not be determined with certainty where Tenenbaum’s “principal office for the practice of law” is, and that it would be pointless to deny him certification as the duly elected representative of District 6.
By the way, Tenenbaum notes that just this month, he has acquired space in a Thousand Oaks office building, and from there, he will conduct activities both as a businessman and a lawyer.
On Nov. 21, in closed session (and with Tenenbaum excluded), the Board of Governors considered the plaintiff’s settlement proposal—or “peace offering,” as he puts it. As he recounts, he wanted costs (which he said he offered to give to charity), disclosure of who had represented to the State Bar that he didn’t practice in Ventura County, and fixing the rules so that the same situation would not recur. The board voted “no.”
There was no need for him to file an action, thus no need to incur the expense of filing fees. Only if the State Bar had decided to seat the candidate with the second highest number of votes, Bryan Hartnell of Redlands, would Tenenbaum have needed to act (by filing, with permission of the attorney general, an action in quo warranto).
His writ petition did not seek disclosure of the names of the informants and did not seek to compel a change in rules.
The petition has a prayer for damages but sets forth no facts giving rise to damages.
While it would seem that Tenenbaum has no bargaining power, he sees it otherwise. He acknowledges that “the injunctive aspect is mooted,” but says that the court might consider his contentions anyway since “you’re going to have the exact same issue coming up” again.
The State Bar’s chief assistant general counsel, Lawrence C. Yee, disputes that, remarking that this was the first time the issue arose “in all the history of the State Bar” which was founded in 1927.
In any event, on rare occasion, appellate courts will decide an issue that is moot where that issue is of broad public interest and is “capable of repetition, yet evading review.” But the appellate decisions have precedential effect. (There would be no cause to decide a moot issue in an unpublished opinion.) Trial judges, whose decisions have no precedential effect, would have no incentive to decide a moot issue—even if they had jurisdiction to decide non-existing controversies, which is doubtful.
Tenenbaum says he could amend the petition “in a minute” to seek a change in State Bar rules. It is doubtful he would be granted leave for that purpose. Changing State Bar rules is an act of discretion—and writs may not be issued to control the exercise of discretion.
Tenenbaum has a hopeless case, and if he were not on the Board of Governors, the State Bar might be inclined to seek sanctions.
The State Bar filed an answer on Dec. 16 in which it raised the affirmative defenses of mootness, failure to file a governmental tort claim, and governmental immunity to damages. Its motion for judgment on the pleadings is predicated on those grounds.
Faced with the probability of a total loss, Tenenbaum has become somewhat more malleable.
In an interview late Thursday, he set forth new terms. Tenenbaum says:
“I’m considering other alternatives that involve the bar taking a modicum, an iota—because they want to accept zero—of responsibility for what’s gone on and undertaking to fix the problem. I want them to fix the problem in their own rules. So, whatever gets that done, whatever gets the bar to the right track.
“I’m not going to hold out for $400 in court costs. That’s ridiculous. I don’t want the bar to waste any more money....
“Maybe they’ll do a joint press release with me. Maybe they’ll issue a press release saying:
“Bar settles case, undertakes do all these things. Thanks, Mr. Tenenbaum, for bringing this issue to our attention.”
His reference to “all these things” does not include divulging who had challenged his eligibility to represent District 6. He now knows that. The motion for judgment on the pleadings discloses that:
•Ventura attorney Edwin Duncan had telephoned the State Bar in May to alert it that the Thousand Oaks address used by Tenenbaum was merely a box, and followed up with a July letter detailing his concerns after reading an article about Tenenbaum in the MetNews. The letter alleges that Tenenbaum does not have a business license in Thousand Oaks (which Tenenbaum acknowledges, saying he didn’t know he was required to have one); that Tenenbaum filed a Financial Disclosure Statement on June 2, 2008 saying he had earned no income as an attorney for nearly 18 months; and that records of the U.S. District Court showed him as a Malibu practitioner. (He filed a request for dismissal in a federal action using his Malibu address after becoming a District 6 candidate.) The letter also questions whether Tenenbaum has any associates; he bills his firm as “Tenenbaum & Associates.”
•Riverside attorney Ben Aames, a rival candidate for the District 6 seat; questioned the bona fides of Tenenbaum’s candidacy in a May communique.
•Former State Bar Governor Michael Case of Ventura did the same in July.
With Tenenbaum now willing to enter into a settlement that does not involve paying his costs, and with the identity of those complaining to the State Bar now having been divulged, it appears that the litigant’s only proviso is that the State Bar to “fix” its rules.
The problem there is that a statute, quoted above, requires that a Board of Governors candidate have “his or her principal office for the practice of law” in the district; and a statute, Business & Professions Code §6002.1 requires that a member supply the State Bar with “[t]he member’s current office address,” without requiring that the address be that of the “principal” office.
Tenenbaum suggests that the State Bar could promulgate a rule providing that if the address provided in compliance with §6002.1 is not that of the attorney’s “principal” office, that such address also be provided.
The statutes and the rules mirroring them would not have been a problem had there been solid objective evidence that Tenenbaum did have a law office in Ventura County. Circumstances created a reason for inquiring, though the 48-day probe was a bit laggardly.
Moreover, the State Bar is not apt to settle a case—especially a patently meritless one—on condition it make a rule change.
The best Tenenbaum could expect is an accord under which he dismisses his action and gets a waiver of costs.
He complains about the expense the State Bar has incurred by refusing to settle on his terms. It’s he who has caused that expense, and his terms have been unreasonable.
Tenenbaum has been a liability to the very organization that is, by virtue of his position, entitled to his fidelity.
Copyright 2009, Metropolitan News Company