Tuesday, April 12, 2016
State Bar Misrepresents Extent of Its Victory in Dunn Case
Hong Feted; LACBA Nominating Committee Member Ousted
By ROGER M. GRACE
The State Bar of California on Friday dispatched a press release bearing the heading, “ARBITRATOR DISMISSES DUNN LAWSUIT.”
There is a problem with that. It didn’t happen. There was no “dismissal.”
Here’s what the State Bar represented:
SAN FRANCISCO, April 8, 2016 – An arbitrator today dismissed all claims in a lawsuit brought against the State Bar of California by its former executive director, Joseph Dunn, after he was terminated in November 2014.
Retired United States Chief Magistrate Judge Edward A. Infante agreed with the State Bar that there was no legal basis for the lawsuit. Judge Infante also dismissed the claims brought against former State Bar President Craig Holden and Chief Justice Tani Cantil-Sakauye’s former principal attorney Beth Jay.
“We are pleased that the arbitrator recognized the significant deficiencies in this lawsuit and hope this brings an end to this disruptive litigation,” State Bar President David Pasternak said. “The bar’s new leadership looks forward to continue to focus all of its energies on the bar’s important public service work.”
The State Bar has maintained that the lawsuit lacked either factual or legal merit. If Dunn chooses to amend his complaint, the bar will again challenge it, bar officials said.
John Hueston of Hueston Hennigan, who represented the State Bar and Holden, said, “After engaging substantively with all of the issues and the law, Judge Infante’s thorough order dismissed every claim asserted. We have expressed all along our confidence that a neutral fact-finder would agree with the bar’s position.”
The State Bar of California is represented by John C. Hueston, Moez M. Kaba, Joe Reiter and Stanley Chen of Hueston Hennigan, LLP.
In truth, an arbitrator sustained a demurrer to each of Dunn’s three causes of action against the State Bar—and all of the demurrers were sustained with leave to amend.
(There were five causes of action, in all. Leave to amend was granted as to one of the four causes of action against 2014-15 State Bar President Craig Holden, and as to the sole cause of action against Beth Jay, former principal counsel to the chief justice. The demurrer by the 2014-15 Board of Trustees as to the two causes of action against it were sustained without leave to amend.)
The press release does quote State Bar President David Pasternak as expressing the “hope” that the litigation is over and it says, in the fourth paragraph, that “[i]f Dunn chooses to amend the complaint, the bar will again challenge it, bar officials said.” However, in the fifth paragraph, it quotes a lawyer for the State Bar as declaring that the order “dismissed every claim asserted.”
Other points might be raised as to accuracy. Without getting into nuances, the State Bar’s press release is one calculated to spawn an erroneous impression that Dunn’s lawsuit is dead.
It is obviously to the discredit of the State Bar that such misinformation was issued and (as of this writing) remains posted on the State Bar website, though the headline now reads, “ARBITRATOR SUSTAINS BAR’S DEMURRER TO DUNN COMPLAINT.”
Dunn, a former state senator, is contending that the State Bar wrongfully fired him on Nov. 7, 2014, based on his submitting an anonymous “whistleblower complaint” to the Board of Trustees in which he bared “the serious malfeasance, illegal conduct, and financial improprieties” which he alleged were taking place within the organization. He filed his action on Nov. 18, 2014, and on June 12, 2015, a judge ordered that the case be submitted to binding arbitration, pursuant to Dunn’s employment contract.
CONGRATULATIONS, NOWLAND HONG—On Friday night, at the re-opened Empress Pavillion in Chinatown, the Southern California Chinese Lawyers Association held its always jam-packed, noisy, and spirited annual installation—its 41st—and paid tribute, fittingly, to one of its founders, Nowland C. Hong. He received the Lifetime Achievement Award.
It has been a lifetime crammed with attainment. As a lawyer, he has scored notable victories in complex cases that few would have had the capacity to handle. In volunteer activities, he was not only a founder of SCCLA, but a two-time president of it.
Too, Hong was national grand president of the Chinese American Citizens Alliance, founded in 1895. It was through that organization that his father, the late Y.C. Hong, performed as one of the leaders of the successful effort in 1943 to gain repeal of the 1882 Chinese Exclusion Act, surely one of the most despicable congressional enactments in our nation’s history.
Hong is president-elect of the Senior Lawyers Section of the Los Angeles County Bar Association and is a driving force behind the Council of Sections.
Among three others receiving awards Friday night was Los Angeles Los Angeles Superior Court Judge Elaine Lu, a past president of SCCLA. She was given the Delbert Earl Wong Public Service Award, named after the late Los Angeles Superior Court judge. It was Wong who suggested the formation of SCCLA (just as the late Los Angeles Superior Court Judge Mario Clinco had set five lawyers, including the legendary Paul Caruso, since deceased, upon the course of founding the Italian American Lawyers Association).
The Distinguished Service Award went to Edward W. Lew, a past president of the Asian Pacific American Bar Association of Los Angeles, and the Impact Award was bestowed on retired U.S. District Judge Margaret Morrow of the Central District of California, now president and CEO of Public Counsel.
COMMITTEE MEMBER ‘FIRED’—Glendale bankruptcy attorney David A. Tilem raises some intriguing questions as to the Los Angeles County Bar Association’s nominating process for officer and trustee positions.
Under the bylaws, there are 14 persons on the Nominating Committee: the president, immediate past president, president-elect, two designees of the Barristers Section, and nine persons, picked by lot, who were chosen as trustees in the past four elections. Tilem, who served as a 2013-14 trustee, was randomly chosen this year but was barred from serving.
It seems he would sign a confidentiality agreement only if the County Bar would accept his proposed modifications—and it didn’t.
The agreement requires that committee members not disclose to anyone outside the committee any confidential information concerning candidates. It provides:
“I agree that LACBA shall have the right to investigate any alleged violation of any Committee member’s commitment to the Committee’s confidentiality, and in LACBA’s sole and absolute discretion (i) determine whether any violation of this commitment has occurred, and (ii) take action, through the Executive Committee of its Board of Trustees, as it deems necessary to enforce this commitment, including but not limited to removal from the Nominating Committee, any and all leadership positions at LACBA, including boards, sections and other committees, and/or removal from LACBA and section membership.
“In addition to the foregoing, I acknowledge and agree that due to the unique nature of the Confidential Information, there can be no adequate remedy at law for any breach of my obligations hereunder, and that any such breach may result in irreparable harm to LACBA and/or its members. Therefore, upon any such breach or any threat thereof, LACBA shall be entitled to appropriate equitable relief, without the necessity of any bond or other undertaking, and to be indemnified by me from and against any loss or harm including, without limitation, attorneys’ fees, in connection with any breach or enforcement of my obligations hereunder or my unauthorized use or release of any Confidential Information.”
(My wife, Jo-Ann, signed the agreement, as did the other members.)
Tilem, whether through over-lawyering or wise caution, added this language:
“ ‘Confidential Information’ does not include information which (i) is or becomes generally available to the public other than as a result of my disclosure, (ii) was within my possession prior to its being furnished to me, or (iii) is or becomes available to me on a non-confidential basis from another source other than pursuant to the terms of this Confidentiality & Non-Disclosure Agreement.”
He also inserted this verbiage:
“Notwithstanding anything herein to the contrary, if I am required to disclose any information obtained pursuant to the terms of this Confidentiality & Non-Disclosure Agreement pursuant to any applicable law, rule or regulation, or request by any self-regulatory organization, I shall promptly notify the Board of Trustees in writing of any such requirement and I shall be permitted/ without any further action, to disclose only that portion of the Confidential Information which, on the advice of counsel, I am legally required to so disclose. If, upon receiving notice, the Board of Trustees seeks to enforce this agreement and preclude disclosure, the Board shall thereafter defend, indemnify and hold me harmless from and against any damage or harm which I may suffer as a result thereof. If the Board does not timely seek to enforce this agreement, then any disclosure which I may make in good faith on the advice of counsel shall not be deemed a disclosure of Confidential Information.”
On the evening of March 29, the day before the 5:30 p.m. meeting of the Nominating Committee, Clark Brown, LACBA’s general counsel and chief administrative officer, advised Tilem that “we will have to decline your proposed changes, and request that you send an executed version of the original form that was sent to you from LACBA.”
Tilem included this in his response the following day:
“I tried to locate a current copy of the By-laws on line this morning. I found copies for virtually every Section, but not the Bylaws for LACBA itself. Perhaps, in the interests of transparency, that should be corrected.”
Good point. LACBA treats the bylaws as a secret document. About two years ago, I made a request of the staff liaison to the Senior Lawyers Section for a copy. She did not supply one. I tried to get a copy from Brown. No luck. I finally got a set from a LACBA past president. I assume he didn’t violate a confidentiality agreement in supplying it.
Anyway, Tilem, who is vice chair of the Commercial Law and Bankruptcy Section, managed to track down a copy and told Brown:
“I found nothing which requires a confidentiality agreement for members of the Nominating Committee,” adding:
“I was told that I was duly selected to serve on the Nominating Committee in accordance with the Bylaws, I plan to be at the meeting.”
Brown told him he couldn’t come. The requirement that Nominating Committee members sign a confidentiality agreement was decided upon by LACBA’s Executive Committee (that is, the officers), in closed session, at their Aug. 12, 2015 meeting,
That communique from Brown came at 4:06 p.m., less than an hour-and-a-half before the meeting. Tilem speculates that he wasn’t replaced, and questions the validity of any action that was taken given that a bylaw calls for 14 members on the committee.
Was he replaced? LACBA won’t say.
Joseph Mandel, the 1980-81 LACBA president, comments:
“This written confidentiality agreement is symptomatic of all that has seemingly gone wrong within the Association. In my years as a trustee, officer and president, it never occurred to anyone that it was necessary or desirable to extract written confidentiality agreements from any member, including any member of the Nominating Committee. To have required any such written agreement, I have no doubt, would have been viewed as an officious overreach, entirely incompatible with the familial feelings that prevailed at the time.
“I will leave to others, since I am no longer an active member of the bar, to comment on the particulars. I do note, however, that during my many years of practice a unilateral right of one party to determine a breach by the other party was uniformly viewed as unreasonable, unconscionable and unacceptable.”
Copyright 2016, Metropolitan News Company