The Commission on Judicial Performance announced April 20 that oral argument—postponed from March 18 in light of the pandemic—will be held May 7 in the Supreme Court’s San Francisco courtroom in the matter of Court of Appeal Justice Jeffrey W. Johnson of this district’s Div. One. The CJP said that in light of “social distancing requirements and seating limitations in the courtroom, the courtroom will not be open to the public.”
It added that there will, however, be “a live stream webcast.” The link to it was not provided; rather, the CJP advised, the link will be made available on the commission’s website—at https://cjp.ca.gov—15 minutes before the 1:30 session commences.
Three masters on Jan. 3 said, in a 315-page report to the commission, that Johnson, as alleged, engaged in a pattern of sexual harassment of females and other misconduct. It came to its conclusion after hearing more than 100 witnesses, listening to closing argument, and considering proposed findings by each side. Their report says:
“The proven allegations establish Justice Johnson lacked personal boundaries; engaged in unwanted touching of several women; attempted to use the prestige of the judicial office to create personal relationships with women; and engaged in ongoing improper touching and sexually related comments toward his colleague, Court of Appeal Justice Victoria Chaney.
“Justice Johnson’s pattern of conduct toward these women reflects ethical lapses that undermine the public’s trust in the judicial process and erodes the confidence we ask the public to place in our individual judges. These lapses are compounded by Justice Johnson’s failure to take responsibility for many of his actions and to manifest insight into his behavior. We find particularly concerning Justice Johnson’s actions towards women who had recently graduated from law school; were in the early stages of their legal careers; and welcomed the opportunity to establish professional contacts with a Court of Appeal justice. Additionally, the evidence established the most serious misconduct occurred when Justice Johnson was intoxicated, impairing both his judgment and his recollection of events.”
The masters—Court of Appeal Justice Judith L. Haller of the Fourth District’s Div. One, San Diego Superior Court Judge Louis R. Hanoian, and Imperial Superior Court Judge William D. Lehman—found that “most of the intoxication allegations” are “true.” The allegations include after-hours intoxication at the Ronald Reagan State Building where the court is headquartered and at events.
“By manifesting a state of intoxication and using the court facilities to socialize with others, he demeaned the judicial office and was discourteous and disrespectful to court staff working in the building after hours,” the masters said, adding:
“As to his alleged misconduct at two of the private events, we find Justice Johnson attended as a Court of Appeal justice and he engaged in undignified conduct toward others resulting from his intoxication. A judge must expect to be the subject of public scrutiny and abide by restrictions that might be viewed as burdensome by private citizens.”
If the commission accepts the findings of prejudicial misconduct, it could remove or censure Johnson, subject to discretionary review by the California Supreme Court, or could take lesser action.
No appellate court jurist since the commission came into existence in 1961 has faced the prospect of an ouster for misconduct. California Supreme Court Justice Marshall F. McComb, after a 50-year judicial career, was removed in 1977 by a makeshift Supreme Court panel—comprised of Court of Appeal justices, sitting pro tem—but not stemming from misconduct; the aged jurist displayed signs of senility.
The commission members who will act on the report include two judges—Court of Appeal Justice William S. Dato of the Fourth District’s Div. One and Trinity Superior Court Judge Michael B. Harper—one lawyer, former State Bar President Anthony P. Capozzi of Fresno, and five lay members. Los Angeles Superior Court Judge Lisa Lench and a lay member recused themselves.
Michael J. Avenatti
Attorney
Michael J. Avenetta, a one-time prominent Los Angeles attorney and prospective presidential candidate, was released from a federal correctional facility in New York last Friday—where he was being held following felony convictions—in light of the pandemic. He is on home confinement at a friend’s house in Los Angeles, with sentencing in New York slated for June 17.
The State Bar’s Office of Chief Trial Counsel on March 13 forwarded to the State Bar Court records of Avenatti’s Feb. 14 conviction in the U.S. District Court for the Southern District of New York on attempted extortion and wire fraud counts. This is expected to result in an interim suspension.
That expectation is so strong that the State Bar’s online “attorney licensee profile” on Avenatti already recites that an interim suspension took place on May 5—that is, next Monday.
In light of the adjudication in federal court that Avenatti did attempt to pry nearly $25 million from Nike by threatening to expose misconduct by the sportswear giant in the recruitment of college basketball players if it did not pay—and the prospect of a sentence of 40 years or more in prison—State Bar proceedings are relegated to little significance. It now looms as a virtual certainty that he will ultimately be disbarred in California.
State Bar disciplinary charges were filed July 29, 2019, but proceedings were abated on Sept. 17 of last year in light of pending criminal charges in the U.S. District Court for the Central District of California. Trial is slated to begin in that action on May 19.
It is contended by the Office of Trial Counsel that Avenatti “intentionally and dishonestly misappropriated nearly $840,000” of client Gregory Barela’s settlement funds, of which $710,000 is still owed.
Avenatti’s response says:
“Importantly, none of the allegations made by Gregory Barela, the complainant in the State Bar’s disciplinary proceeding, or the allegations in the pending criminal proceedings, has been proven to be true.”
He asserts that Barela received his agreed-upon share of the $1.9 million settlement in an intellectual property matter, and remarks:
“The evidence will show that Mr. Barela’s credibility is severely lacking, and that he has a lengthy negative history of fabrication of false ‘facts.’ ”
He is additionally being prosecuted in New York—apart from the now-completed attempted extortion case—for allegedly cheating clients, including pocketing $300,000 in an advance to porn star Stormy Daniels in connection with her book, “Full Disclosure.” Avenatti, who has handled a number of high-profile cases, represented Daniels—whose actual name is Stephanie Clifford—in her actions against President Donald Trump to skirt a 2016 nondisclosure agreement she signed in connection with a $130,000 pay-off for agreeing not to talk publicly of their affair in 2006. He also handled her action against the president for defamation.
Senior United States District Judge Deborah A. Batts of the Southern District of New York on Sept. 17 denied Avenatti’s motion for a transfer of the case involving Daniels to the Central District of California. She said:
“This case is a straightforward fraud case involving one victim, concerns a narrow course of conduct that lasted for approximately eight months, and was brought as a two-count Indictment,” adding:
“On the other hand, the California Prosecution involves five victims, concerns a wide array of alleged criminal conduct, including, but not limited to, tax, bank fraud, obstruction, and false statements offenses that lasted over a five year period, and was brought as a 36-count Indictment.”
June 1 marks 20 years since Avenatti was licensed to practice in California.
There has been one trial continuance after another in the federal prosecution of the disbarred Philip James Layfield, a former practitioner in Los Angeles, who has been released on a $100,000 bond and is presently residing in Delaware. He had been facing a June 16 trial in the U.S. District Court for the Central District of California on charges of mail fraud and money laundering, but on April 16, District Court Judge Michael W. Fitzgerald, acting pursuant to a stipulation of the parties, put off that trial to Dec. 1.
As federal investigators closed in on him, Layfield fled to Costa Rica in June of 2017, was in the United States for two days in October, 2017, returned to Costa Rica, and came back to the U.S. on Feb. 19, 2018. He was arrested in New Jersey on Feb. 26 and was indicted here on March 9, 2018.
The prosecution began in connection with Layfield pocketing settlement funds belonging to Josephine Nguyen, who was a client of the erstwhile law firm of Layfield & Barrett. She was to receive 60 percent of a $3.9 million settlement of her personal injury claim, amounting to $2.3 million.
A superseding indictment expanded the scope of the prosecution to include tax evasion and fraud for 2016 and 2017.
Attorney Anthony M. Solis, on Aug. 17, 2018, filed an emergency motion for an order modifying the terms of Layfield’s release to permit him to leave his residence to attend classes, paving the way for him to obtain a commercial driver’s license so he could seek employment as a truck driver. The motion was granted and he completed a seven-week course. On Oct. 16, 2018, Fitzgerald granted a motion permitting him to accept employment with a trucking company, and last week authorized him to become an independent trucker.
Layfield was suspended from law practice by the State Bar of California after he failed to show up for his Jan. 24, 2018 disciplinary hearing. The State Bar Office of Chief Trial Counsel filed disciplinary charges against him on Sept. 20, 2017, alleging that the attorney misappropriated more than $3.4 million from his clients. He was disbarred Oct. 27, 2018.
Layfield acknowledges moving funds from the attorney-client trust account to his erstwhile firm’s general fund, but insists that he thought there was enough money in the coffers to cover the clients’ shares of settlements. He ascribes blame to others, including the State Bar prosecutor.
A trustee in bankruptcy for Layfield & Barrett, APC, is seeking to recover more than $10 million from Layfield. Pending before the U.S. District Court for the Central District of California is an appeal from the Bankruptcy Court’s denial of Layfield’s motion for judgment on the pleadings. That matter is before Judge Stephen V. Wilson, and a hearing is scheduled for Monday.
Layfield on Saturday requested that he be allowed to appear by telephone at that hearing, explaining that he resides on the East Coast. That request was granted by Wilson yesterday.
The ex-lawyer contends that “because the entire complaint attempts to allege fraudulent conduct on the part of Appellant,” the trustee “has utterly failed to plead with the required specificity as the United States Supreme Court requires,” insisting:
“The complaint does not offer one allegation supported by actual facts as opposed to information and belief. Before suing somebody in fraud for over $10 million, you need to have more than information and belief."
