Judges, Lawyers Under Scrutiny

While former Chapman University School of Law Dean John C. Eastman appeals the May 1 decision by State Bar Court Judge Yvette Roland recommending his disbarment, the State Bar is cross-appealing from Roland’s determination that Eastman’s remarks at the “Save America Rally” in the District of Columbia on Jan. 6, 2021, were not geared to incite the storming of the Capitol.

In briefs filed Nov. 15, the Office of Chief Trial Counsel (“OCTC”) asserted that “Eastman conspired with his client, then incumbent candidate Donald Trump, to unlawfully obstruct the counting of electoral votes…with a singular result-driven objective—disrupting the peaceful transfer of power to President-elect Biden” while Eastman’s lawyers insisted that their client’s purpose was simply “to identify problems with the conduct of the election and to try to have them investigated.”

Following the rally at the Ellipse—officially named “President's Park South,” just south of the White House—protesters stormed the Capitol in hopes of dissuading then-Vice President Mike Pence from proceeding with the electoral count pending investigations into alleged instances of voting fraud. Eastman had argued that Pence possessed that power.

The OCTC asserted in its rebuttal brief:

“Eastman's false statements at the Ellipse were made in furtherance of this conspiracy and intended to cause the crowd to believe the election had been stolen and that the electoral count must be stopped. These conspiratorial acts are not protected under the First Amendment. Moreover. Eastman is responsible for the natural and foreseeable consequences of his and his coconspirators' acts in furtherance of the conspiracy.”

The brief says that Eastman played a “central role in sowing doubt about the legitimacy of the 2020 presidential election and convincing the crowd at the Ellipse that Pence alone could stop the election from being ‘stolen’ ” It declares that while Eastman “seeks to deflect responsibility” by portraying Trump’s then-lawyer, Rudy Giuliani, as well as Trump, himself, as “the ones who motivated the crowd to storm the Capitol,” he ignores “the role he played in seeding the crowd's rage through false claims of outcome-determinative fraud, backed by his legal credentials and purported expertise—the reason his conspirators. Giuliani and Trump, brought him on stage.”

The OCTC commented that Eastman “was no mere cheerleader” but, as Roland found in connection with a count she sustained, “was a coconspirator who engaged in multiple overt acts in furtherance of the conspiracy.”

It added:

“Eastman's illegal, deceitful and intentional acts are unprecedented misconduct of the highest magnitude, including demonstrably contributing to the gravest threat to our democracy in modem history—the violent attack on the Capitol on January 6.”

Eastman’s lawyers said in their reply brief:

“…Dr. Eastman's activities in raising concerns about illegalities in the conduct of the 2020 election, both in his own capacity as a citizen and in his representative capacity on behalf of clients, including the former and now re-elected President of the United States, is speech and the right to petition the government for redress of grievances protected by the First Amendment.”

Eastman has placed reliance on the U.S. Supreme Court’s 1969 decision in Brandenburg v. Ohio in which it was held that inflammatory speech is protected by the First Amendment unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

The Dec. 20 brief says:

“[I]n OCTC's telling. Dr. Eastman incited a crowd of a half million people to engage in insurrection (forget about the Supreme Court's controlling case of Brandenberg v. Ohio, or that the crowd remained at the White House Ellipse long after Dr. Eastman's brief remarks to hear from President Trump) and caused untold millions to rationally suspect there were problems with the election (despite that the election irregularities, boarded-up canvassing rooms, late-night ballot dumps, etc., were available to anyone with eyes to see). Apparently, like comic book character Lex Luthor. Dr. Eastman possessed omnipotent power to coax millions into a frenzy—never mind that the election outcome was debated and questioned in every comer of media and public discourse for 64 days before January 6th, and still is to this day. OCTC's notion of Dr. Eastman's role in ‘incitement’ is, itself, comical.”

In her 128-page decision, Roland said:

“As counsel for President Trump during a disputed presidential election, Eastman made multiple patently false and misleading statements in court filings, in public remarks heard by countless Americans and to others regarding the conduct of the 2020 presidential election and Vice President Pence's authority to refuse to count or delay counting properly certified slates of electoral votes on January 6. 2021. These statements, made with varying degrees of intent, were improperly aimed at casting doubt on the legitimate election results and support for the baseless claim that the presidency was stolen from his client—all while relying on his credentials as an attorney and constitutional scholar to lend credibility to his unfounded claims.”

She went on to say:

“Most of his misconduct occurred squarely within the course and scope of Eastman's representation of President Trump and culminated with a shared plan to obstruct the lawful function of the government.

“While attorneys have a duty to advocate zealously for their clients, they must do so within the bounds of ethical and legal constraints. Eastman's actions transgressed those ethical limits by advocating, participating in and pursuing a strategy to challenge the results of the 2020 presidential election that lacked evidentiary or legal support. Vigorous advocacy does not absolve Eastman of his professional responsibilities around honesty and upholding the rule of law. While his actions are mitigated by his many years of discipline-free practice, cooperation, and prior good character, his wrongdoing is substantially aggravated by his multiple offenses, lack of candor and indifference. Given the serious and extensive nature of Eastman's unethical actions, the most severe available professional sanction is warranted to protect the public and preserve the public confidence in the legal system.”

Sentencing of disbarred lawyer Thomas Vincent Girardi—who was convicted on four counts of wire fraud by a jury in the U.S. District Court for the Central District of California on Aug. 27, after a 13-day trial—had been scheduled for Dec. 20, but Judge Josephine Staton on Dec. 18 called off that hearing, saying she wants more information before deciding “whether defendant should be committed to a suitable facility in lieu of imprisonment.”

At present, he’s in a locked memory-care ward in an Orange County nursing facility and his lawyers are urging that he be alowed to stay there.

Girardi will be flown next week to North Carolina for observation.

The Office of United States Attorney for the Central District of California, in its Dec. 6 sentencing memorandum, called for a 14-year prison sentence, setting forth:

“Former attorney Thomas Vincent Girardi…devised and perpetrated a cunning fraud scheme against the injured clients he had a sworn duty to protect. His years-long theft of client funds from his law firm's trust accounts and the myriad lies he told to cover up his theft represent a calculated and devasting betrayal of the very people that turned to him for help in their darkest hour. As proved at trial, defendant stole millions of dollars in client settlement funds and failed to pay his clients the money that was due them. In carrying out this scheme, defendant provided a litany of false excuses for failing to pay clients and, with the assistance of co-defendant Christopher Kamon…, used his law firm's accounts like a personal piggy bank. Defendant also operated the law firm he founded, Girardi Keese, like a Ponzi scheme by using new victim client settlement money to pay previously defrauded clients, while he and Kamon also used the embezzled client funds to pay law firm expenses and to enrich themselves.

“Although complaints of misappropriated client funds had swirled around defendant for decades, his massive fraud was finally brought to light at the end of 2020 when Girardi Keese descended into bankruptcy and closed and defendant was referred to the Department of Justice for criminal prosecution. Defendant has now been convicted by a jury of felonies related to the theft of client funds in the four cases the government presented at trial. Defendant also faces criminal charges in Chicago for similar conduct in that jurisdiction. Although defendant is in his mid-80s and has some cognitive impairment, the gravity of defendant's wrongdoing and the serious and, in many cases, irreparable damage he has done to his clients and the legal profession in general warrant a significant custodial sentence.

“Therefore, for his role in devising, carrying out, and concealing his fraud scheme, and for the following reasons, the government submits that a sentence that includes 168 months imprisonment, a restitution order in the amount of $3,786,985.34, three years of supervised release, and a special assessment of $400 is justified and appropriate.”

The Dec. 6 defense sentencing memorandum provided by the Office of Federal Public Defender California says:

“Tom Girardi once ranked among the most successful and prominent lawyers in the country. That Tom Girardi no longer exists. Today, Tom Girardi is a broke, half- blind, incontinent, 85-year-old man with dementia. He has lost everything, from his possessions, to his reputation, to his mind. He spends his days in a lockdown memory- care facility where he occupies a shared room and requires round-the-clock assistance for basic tasks. He has to be tricked into taking a shower on the pretense of going to court, and spends his time writing pages of notes about imaginary legal cases and clients that do not exist. He does not recall the trial or the verdict in this matter. He often does not recall close family or his few remaining friends. Multiple doctors have diagnosed him with serious cognitive impairments, and his court-ordered conservator was recently granted major-neurocognitive-disorder powers. If Mr. Girardi receives a custodial term of any length, it will not only result in a hastened, costly, and lonely death in a BOP medical ward, but will result in a distinctly-punitive death-in-prison sentence that he will not meaningfully understand.”

It goes on to say:

“The inquiry in this case thus reduces to the following formulation: do the multifaceted commands of federal sentencing make it necessary to transport Mr. Girardi across the country to die in a [Board of Prisons] medical facility, without adequate care and at significant taxpayer expense, as part of a punishment that he will not durably understand, or would it be sufficient to leave Mr. Girardi in his current lockdown medical facility, paid for by untainted family funds, where he will never again experience freedom but can receive minimally-humane treatment at the end of his life?”

The memo argues:

“A sentence that balances justice with mercy, punishment with rehabilitation, and legal doctrine with compassion and common sense would do more to promote respect for the law at this point than one driven by retribution. Given the unique circumstances of this case, lifetime confinement to a medical facility would be sufficient, but not greater than necessary, to achieve all the goals of federal sentencing.”

At his trial, Girardi sought to place all blame on Christopher Kamon, who was chief financial officer for the now-defunct firm of Girardi|Keese. On Oct. 8. Kamon entered into a plea bargain under which he pled guilty on Oct. 11 to two counts of wire fraud, with other counts dropped, and will forfeit $3.1 million.

Once a monied and highly influential lawyer, Girardi is now disgraced and impecunious. A former superstar among California’s personal injury attorneys, Girardi resided in a Pasadena mansion with his trophy wife, “The Real Housewives of Beverly Hills” star Erika Jayne, who, although she filed for a dissolution of marriage, has said she won’t follow through with the divorce because she could wind up having to pay Girardi spousal support.

An indictment in the Northern District of Illinois stems from the former lawyer purportedly stealing about $3 million that was due family members of persons who were in the Lion Air Flight 610 crash in Indonesia on Oct. 29, 2018, killing all 189 who were aboard. Boeing had manufactured the aircraft, and agreed to pay $500 million to the survivors.

Also indicted there were Los Angeles attorney David Lira, Girardi’s son-in-law, and Kamon. The three face eight counts of wire fraud and four counts of criminal contempt of court.

Trial is scheduled for March 3. Prosecutors there have indicated they might drop charges against Girardi, depending on what the sentencing decision is here.