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California Bar Discovery Gaps Undermine Case Against Ex-Director

Dec. 15, 2022, 8:54 PM

The State Bar’s discovery deficiencies in its disciplinary case against former Executive Director Joseph Dunn could result in dismissal of the case and potentially sanctions, a State Bar Court judge said Thursday.

The bar on July 5 filed disciplinary charges against Dunn, alleging three counts of moral turpitude including breach of fiduciary duty for allegedly failing to accurately state the status of legislation and for using bar funds for a trip to Mongolia.

Counsel for Dunn accused the bar of stonewalling in the case filed nearly a decade after Dunn was fired.

“We keep getting these discovery responses that are internally completely inconsistent,” said Mark Geragos, Geragos & Geragos APC, co-counsel with Ellen Pansky, Pansky Markle Attorneys at Law.

Judge Yvette D. Roland during a status conference gave counsel for Dunn until Dec. 19 to serve the bar counsel with a request for documents and gave the bar until Jan. 9 to respond with the documents and file objections. Roland, who vacated the trial dates that were scheduled to start Thursday, said it’s important “for us to get a better handle on the discovery.”

Roland said the responsibility is squarely with the bar’s special deputy trial counsel to “communicate with whomever you need to communicate with in order to ensure that your client meets its discovery obligations.”

And whether that means going to the office of general counsel and to all the outside firms it had contracted with during the course of Dunn’s employment arbitration “or run to all of these firms to sort this out, that’s what you need to do to ensure that you do not put your client in the position of failing to comply with its discovery obligations and any potential sanctions that could result from that,” Roland said.

“Because if it is not a full and comprehensive set of responsive documents, then it will result in the likely dismissal for failure to comply with discovery obligations,” the judge added.

Dunn, a former state lawmaker, oversaw the agency for four years until his firing in 2014. Dunn sued the state in Los Angeles Superior Court alleging he was fired for being a whistleblower in a case that was sent to arbitration. An arbitrator in 2017 upheld his termination.

The bar hired several outside law firms during the course of investigating Dunn before his firing and for the filing of charges, including Hueston Hennigan and Munger, Tolles & Olson. Obtaining information from the outside counsel where hard drives and documents were sent and resurrecting old emails are among the issues the bar has raised.

Munger Tolles’ investigation is irrelevant to the charges, which were based on what Dunn told trustees, said Charles Berwanger, bar special deputy trial counsel. The firm said it would charge the bar $20,000 to interview and to look at its administrative documents and work product privilege.

“I understand that you’re saying that the state bar may have to lay out some money in order to effectively and fairly prosecute this case, but I’m assuming that the state bar considered all of that before bringing the charges,” the judge said.

The court Dec. 12 denied without prejudice Dunn’s motion to dismiss, and his counsel said another motion would be filed. A status conference is set for Jan. 24 with a status report due Jan. 17.

“And if that status report reflects that all the discovery has not been produced, I expect that status report to address the remaining discovery to be produced and the time frame for its production. And let me give you a hint, I’m not talking about 419 days out,” she said.

The case is In Re Joseph Lawrence Dunn, Cal. State Bar, No. 22-O-0365, 12/15/22.

To contact the reporter on this story: Joyce E. Cutler in San Francisco at jcutler@bloomberglaw.com

To contact the editors responsible for this story: Maya Earls at mearls@bloomberglaw.com; Rob Tricchinelli at rtricchinelli@bloomberglaw.com