Judges, Lawyers Under Scrutiny

Effort to Bar Rogers’s Testimony

The State Bar’s Office of Trial Counsel (“OCTC”) is asking that the State Bar Court exclude expert testimony by former California Supreme Court Justice Janice Rogers Brown in support of ex-Chapman University School of Law Dean John C. Eastman who is facing disbarment proceedings. He is being prosecuted over having told protesters in the District of Columbia on Jan. 6, 2021 that irregularities skewed the results of the 2020 presidential election and that then-Vice President Mike Pence should delay a certification of the results.

OCTC Supervising Attorney Duncan Carling said in a March 30 motion in limine to exclude testimony by Brown—who served from 2005-17 as a judge of the U.S. Circuit Court of Appeals for the D.C. Circuit after leaving the state high court—“is not relevant.”

In designating Brown on March 22 as an expert, Eastman’s attorneys, Randall A. Miller and Zachary Mayer, said:

“Judge Rogers Brown is expected to testify regarding her opinion that the California State Bar seems to be moving into unchartered territory with seeking to discipline an attorney on one side of a contentious legal fight.”

However, Carling maintained in his March 30 memorandum of points and authorities that an opinion that “attorneys who are involved in a ‘contentious legal fight’ should not be subject to discipline, is not relevant to the court's determination of whether respondent is culpable of the charges.” He added that “Judge Brown's opinion that the State Bar is ‘moving into unchartered territory’ with this case is factually incorrect,” pointing out that on May 3, 2021, Rudy Giuliani (a former New York mayor and Trump advisor) was suspended from law practice by the New York State Supreme Court Appellate Division based on conduct similar to Eastman’s.

He also noted that “[o]n March 8, 2023, the Colorado Supreme Court approved a disciplinary stipulation in which attorney Jenna Ellis stipulated that, while serving as a senior legal advisor to President Trump, she ‘repeatedly made misrepresentations on national television and on Twitter, undermining the American public's confidence in the 2020 presidential election.’ ”

In an April 10 response to the motion, Eastman’s lawyers said:

“The subject matter of Judge Brown opinions  is not a matter of common experience, her qualifications to render such opinion are unassailable, and the trier of fact should be allowed to consider how rarely attorneys are charged for engaging in  the type of conduct for which Respondent stands accused in this matter.”

They added that OCTC’s argument that others have been disciplined for claiming there were flaws on the 2020 election process “plainly goes to the weight of Judge Brown's opinion, not its admissibility,” asserting that the OCTC “should refrain from evaluating the merits of Judge Brown's opinion and let the trier of fact decide  what weight to give her testimony.”
Other Expert Testimony

Carling also seeks to bar testimony by New York Law School Professor Rebecca Roiphe, a contributing legal analyst at CBS News, saying that “her testimony is offered on matters which are within the province of the court to decide.”

Miller and Mayer explained, in designating her:

“Ms. Roiphe is expected to testify regarding a lawyer's First Amendment rights both in relation to a client and outside of any attorney-client relationship. Ms. Roiphe is also expected to testify regarding the circumstances in which a state bar may impose discipline against a lawyer for exercising a lawyer's First Amendment rights.”

They noted that Roiphe has been a professor at New York Law School since 2007, “focusing in legal ethics and professional responsibility.”

But Carling contended in his memorandum:

“The extent to which the First Amendment protects an attorney from professional discipline based on speech has been considered and discussed by the State Bar Court and the Supreme Court, and this court does not need an expert to explain the relevant law.”

He added that expert testimony is not appropriate on the matter of what resolution should be reached.

Eastman’s lawyers clarified in their response that “the focus of Professor Roiphe's testimony is the authority of the State Bar to discipline Respondent under the circumstances of this case.”

They remarked:

“As with any expert opinion testimony, an expert opinion that embraces the ultimate issue to  be decided by the trier of fact may be given whatever weight the jury deems appropriate, but it is  nonetheless admissible. Accordingly, there is no basis for preventing Professor Roiphe from  offering opinions that may touch on an ultimate issue to be decided at trial.”

Others designated by Eastman’s lawyers as expert witnesses are UC Berkeley law professor John C. Yoo, statistician S. Stanley Young, computer programmer John “Jay” Valentine, certified public accountant Joseph N. Fried, and attorney Kurt Olsen. The State Bar on March 20 disclosed that its expert witnesses will be District f Columbia attorney Matthew Seligman, a fellow at Stanford Law School” whose “legal scholarship primarily focuses on election law and disputed presidential elections” and Stanford political science Professor Justin Grimmer.
Charges, Denials

Chief Trial Counsel George Cardona announced on Jan. 26 that disbarment of Eastman is being sought based on his participation in an effort to block Joseph Biden from taking office as president of the United States through allegations of election fraud. The notice of charges cites his speech in the District of Columbia at the “Save America March” in which he asserted that Vice President Mike Pence had the legal authority to delay certification of the Electoral College results while alleged irregularities were probed. Eastman is blamed, in part for the Jan. 6, 2021 storming of the Capitol by throngs of supporters of then-President Donald Trump.

The notice of charges says:

“By telling the crowd of protestors, from a position of authority as a professor and purported ‘preeminent constitutional scholar,’ that fraud had occurred in the election, that dead people had voted, that electronic voting machines had been used to fraudulently alter the election results, that Pence had authority to delay the counting of votes, and that Pence did not deserve to be in office if he did not delay the counting of votes, respondent made false and misleading statements that contributed to provoking the crowd to assault and breach the Capitol in an effort to intimidate Pence and prevent the electoral count from proceeding, when such harm was foreseeable, and thereby committed an act of moral turpitude, dishonesty, and corruption in willful violation of Business and Professions Code section 6106.”

Miller and Mayer on Feb. 15 responded to the charges on Eastman’s behalf, asserting that the State Bar has misquoted their client and  is going after him based on an exercise of his First Amendment rights. The response says, in part:

“Respondent DENIES that he made any statement to the crowd about Vice President Pence's authority. Respondent DENIES that he told the assembled crowd that ‘Pence did not deserve to be in office if he did not delay the counting of votes.’ Rather, as the transcript of his remarks demonstrates, he stated that ‘anybody that is not willing to stand up to’ get to the bottom of whether acknowledged illegality and fraud in the conduct of the election had affected the election results ‘does not deserve to be in the office.’ ‘Anybody’ would include not just Vice President Pence, but other members of Congress as well as the members of the several state legislatures who were being asked to investigate the acknowledged illegality and fraud and to assess whether that affected the election results.”

The response continues:

“Respondent DENIES that his statements were false and misleading, or that he knew or was grossly negligent in not knowing at the time that they were false and misleading. Respondent DENIES that his statements provoked or ‘contributed to provoking the crowd to assault and breach the Capitol in an effort to intimidate Pence and prevent the electoral count from proceeding.’ On the contrary, Respondent made no statement provoking or inciting the crowd to violence of any kind, much less inciting it to ''imminent" violence as the Supreme Court has held to be required for speech to be unprotected under the First Amendment. See, e.g., Brandenburg v. Ohio, 395 U.S. 444 (1969)….Respondent DENIES that the assault and breach of the Capitol was a foreseeable response to his brief speech, particularly since the President himself, who spoke after Respondent.”

One affirmative defense is:

“The California Bar lacks jurisdiction over the conduct of the Respondent referred to in the Charges because the First Amendment and its California counterpart provide absolute protection for political speech and legal opinion given in good faith on a matter of public importance. Respondent also cannot be penalized for his political affiliations, associations, or speech.”

Another affirmative defense sets forth:

“Respondent lacks fair notice that the conduct alleged in the Charges constituted a violation of the California Bar Rules. Until the spate of complaints filed against lawyers involved in the 2020 election challenges, there was no case like these in the annals of ethical decisions in California or in any State in the Nation. No licensed lawyer in December 2020 to January 2021 could possibly have rationally expected that the local ethics rules would be deemed to be violated for bringing challenges to election irregularities of the sort that are commonplace in the wake of contested elections. As such, the Charges violate the Due Process Clause's requirement of fair notice.”

State Bar Court Judge Yvette D. Roland on April 12 set trial for June 20-23 and 27-30. She noted in her order:

“According to the parties, approximately 100,000 pages of documents and other media, including video and recordings, have been produced in discovery.”.

The State Bar on March 10 released a report prepared by an outside law firm detailing how staff members—including then-Executive Director Joe Dunn and then-Interim Executive Director Bob Hawley—acted to shield Tom Girardi from discipline. It tells of gifts to a then-State investigator, Tom Layton, and Layton’s wife exceeding $1 million.

Board of Trustees Chair Ruben Duran said in an email to State Bar licensees that the Zachary employees’ conduct was “frankly shocking.” He noted that the report indicates that “Girardi intentionally cultivated relationships at the State Bar and it spotlights nine individuals at all levels who accepted his largesse and failed to report it, creating conflicts of interest.”

He noted “none of the staff whose unethical…behavior is described in the…report are still at the State Bar, and most of the concerning conduct occurred before 2018.&rdquo

Girardi on Feb. 1 was indicted by federal grand juries in the Central District of California and the Northern District of Illinois on multiple felony counts arising from allegedly cheating clients out of millions of dollars in settlements.

However, a question looms as to whether the 83-year-old disbarred lawyer is competent to stand trial, having been diagnosed in March 2021 as being afflicted with dementia and Alzheimer’s Disease. District Court Magistrate Judge Karen L. Stevenson of the Central District of California on Feb. 6 entered a not-guilty plea on behalf of Girardi and ordered a mental evaluation of him

The indictment in Illinois stemmed from the former lawyer purportedly pocketing 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 family members.

Also indicted were Los Angeles attorney David Lira, Girardi’s son-in-law, and Christopher Kamon, who was head of accounting and finance for Girardi|Keese, the now-defunct firm Girardi founded and owned. The three face eight counts of wire fraud and four counts of criminal contempt of court.

The indictment in Los Angeles is against Girardi and Kamon. It alleges five counts of wire fraud.

According to the true bill, that five clients were cumulatively cheated out of “in excess of” $15 million.

Once a superstar among California’s personal injury attorneys, Girardi was monied and resided in a Pasadena mansion with his trophy wife, singer/TV personality Erika Jayne. He’s now disbarred and news accounts commonly precede his name with the adjective, “disgraced.” He’s in bankruptcy and is a conservatee.

Although Jayne filed for a dissolution of marriage, she recently said she won’t follow through because she could wind up having to pay the penniless Girardi spousal support.

Over the decades, complaints by clients to the State Bar of his perfidy, many complaints, went unheeded. He had connections at the State Bar—which included a then-investigator there, Tom Layton, who acted as his boy-Friday. Allegations against him in State Bar proceedings included the theft of “at least $1,985,615.15” in settlement proceeds that should have gone to children whose parents died in an air crash. He was disbarred after he failed to respond to the allegations.

Brian Kabatech, Mark Gerogos
Attorneys