Times Backs Down in Bid to Pry Records From State Bar
Newspaper Will Drop Petition Before State Supreme Court in Tussle Over Girardi Files; Will, in Return, Learn
Identities of Two Attorneys Who Worked for State Bar—but Only If They Consent—and Will Receive $138,000
By a MetNews Staff Writer
The Los Angeles Times has largely given up its effort to pry more information from the State Bar as to facts surrounding its failure over a period of decades to follow up on a plethora of complaints as to misconduct by one-time celebrity lawyer Thomas V. Girardi, who is now disbarred and facing federal criminal charges.
Under a settlement agreement reached last week and released yesterday, the Times’s petition before the California Supreme Court for a writ of mandate/prohibition will be dropped and the newspaper will desist from seeking an unredacted copy of the 27-page document prepared by attorney Alyse Lazar that was made public on March 10—with large portions blotted out—titled “Report and Analysis of Audited Girardi Files.”
The Times will receive $138,000, under the private attorney general statute, to partially reimburse it for its attorney fees in seeking information, and will possibly be apprised of the identities of two former State Bar Office of Chief Trial Counsel (“OCTC”) lawyers, identified in another report released on May 10. They were denominated “OCTC Attorney 1” and “OCTC Attorney 2.”
Those lawyers will be queried and their names will be divulged if they so consent. It appears from a report that they were not implicated in any wrongdoing.
The State Bar in 2021 denied two requests by the Times for copies of complaints that had been filed against Girardi and information as to any investigations that were made. On June 17, 2021, the newspaper instituted an original proceeding in the California Supreme Court which on Sept. 1, 2021, issued an order to the State Bar to show cause why relief should not be granted.
It ordered briefing on these questions:
“1. Does the court have the authority to reverse a discretionary decision by the State Bar’s Interim Chief Trial Counsel not to waive the confidentiality of disciplinary investigations involving alleged professional misconduct by Thomas V. Girardi, and if so, was such a waiver of confidentiality in this matter ;warranted for protection of the public’ within the meaning of Business and Professions Code section 6086.1, subdivision (b)(2)?
“2. Are the State Bar of California’s Chief Trial Counsel and Chair of the Board of Trustees authorized under Business and Professions Code section 6086.1, subdivision (b)(2) to disclose information and records regarding confidential disciplinary investigations that were closed without charges filed?
“3. Is the scope of disclosures permitted under the confidentiality waiver in section 6086.1, subdivision (b)(2) limited to releases of information ‘confirming the fact of an investigation or proceeding, clarifying the procedural aspects and current status, and defending the right of the licensee to a fair hearing’?”
On Oct. 7, 2022, the State Bar—by then under intense public scrutiny over its dereliction in responding to complaints about the once-politically well connected Girardi who had a State Bar investigator as his errand boy—filed a supplemental brief saying it would “release information about past disciplinary investigations concerning Mr. Girardi” to the extent it determined it could do so lawfully.
It did publicly release some information on Nov. 3, 2022, and on March 10, posted online Lazar’s report and a more extensive one—also with numerous redactions—by the law firm of Halpern May.
While the settlement agreement recites that the Times will not seek an unredacted copy of the Lazar Report, it contains no such provision as to the Halpern May Report, but does say:
“The Parties intend that this Agreement shall be a complete resolution of all requests for records encompassed by the Petition and subsequent Briefing in the Action….In the event of a future request, through the California Public Records Act or otherwise, by the Times for information or records that the State Bar contends was resolved, in whole or in part, by this Agreement, the State Bar shall have the right to raise this Agreement as a defense and/or a bar to the request, and the Times reserves its right to contend that the new request is not encompassed by this release.”
From what can be discerned from the Halpern May Report, “OCTC Attorney 2” was among the OCTC lawyers who were displeased by the recommendation by an outside counsel—known from news reports to have been Jerome Falk, though designated in the report as “OUTSIDE COUNSEL C”—that Girardi not incur discipline based on misconduct the Ninth U.S. Circuit Court of Appeals saw as egregious.
Girardi and Walter Lack—with whom Girardi habitually teamed in trying cases though he was with a different firm—had attempted to collect a $489 million Nicaraguan judgment from an entity, Dole Food Company, which was other that the actual judgment debtor. A July 13, 2010 order by a three-judge Ninth Circuit panel says:
“In a high-stakes gamble to enforce a foreign Judgment of nearly a half billion dollars. Respondents initiated and directed years of litigation against Defendants. Respondents efforts went beyond the use of ‘questionable tactics’—they crossed the line to include the persistent use of known falsehoods….Respondents made…false representations knowingly, intentionally, and recklessly. Their actions vexatiously multiplied the proceedings at great expense to Defendants and required the Ninth Circuit to deal with a frivolous appeal.
“The court cannot and will not tolerate members of the bar employing the use of known falsehoods to further their objectives, no matter how appealing the underlying cause of their clients may be.”
The court said:
“We will… formally reprimand Girardi for his recklessness in determining whether statements or documents central to an action on which his name appears are false.”
“OCTC Attorney 2” apparently complained of Falk’s decision to the State Bar Board of Governors.
On July 6, 2011, he or she was fired, as was “OCTC Attorney 1” and others.
The reports says “there is reason to believe the terminations were based, at least in part, on Girardi’s influence at the State Bar.”
The reason for the termination of employment of “OCTC Attorney 1” is not clear, in light of redactions. It appears from the report that on June 7 2011, that lawyer “flagged” a complaint against Girardi as coming under State Bar Rule 2201 which requires that where the OCTC has a conflict, the matter be routed to outside counsel; at the time, a referral was made only if the OCTC determined that the matter was worth pursuing; the decision not to forward the case was apparently made by then-OCTC lawyer Murray Greenberg, a Girardi ally.
Girardi is facing wire-fraud charges in the U.S. District Courts for the Central District of California and in the Northern District of Illinois.
On Friday, the U.S. Attorneys office for the Central District of California filed a report by a neuropsychologist saying that Girardi, who has been diagnosed as suffering from Alzheimer’s disease, is fit to stand trial. He faces five counts of wire fraud here.
Girardi is under a conservatorship, is in bankruptcy, and lost his law license after failing to respond to State Bar charges as to numerous instances of cheating clients, pocketing millions of dollars.
Copyright 2023, Metropolitan News Company