Suspension Proposed For California Bar Former Executive Director

The California State Bar Court Review Department has recommended a 30-day suspension of the Bar’s former Executive Director

This case stems from misconduct allegations against Joseph Lawrence Dunn while he served as Executive Director of the State Bar of California (State Bar) between 2010 and 2014. Dunn was charged with three counts of misconduct involving moral turpitude in violation of Business and Professions Code section 6106 based on alleged misrepresentations he made to the State Bar Board of Trustees (Board). Prior to the disciplinary trial, Dunn moved to dismiss this proceeding arguing that it was time barred pursuant to rule 5.21 of the Rules of Procedure of the State Bar. The hearing judge granted Dunn’s motion in part, dismissing count one and certain related allegations in count three. The State Bar’ filed a petition for interlocutory review of the judge’s order, which we denied, finding no error of law or abuse of discretion. After trial in the Hearing Department, the judge found Dunn culpable of two counts of moral turpitude. She determined that Dunn made a misrepresentation to the Board regarding the funding of a trip to Mongolia in January 2014, and thus, breached his fiduciary duties to the Board as Executive Director. She found four mitigating circumstances and no aggravation and recommended a one year stayed suspension.

Both Dunn and the State Bar appeal. Dunn seeks a dismissal of all charges and raises a due process challenge. The State Bar argues the dismissed counts should be reinstated, requests us to affirm the hearing judge’s culpability findings, and seeks a 60-day actual suspension.

Upon independent review of the record (Cal. Rules of Court, rule 9.12), we affirm the hearing judge’s findings of culpability, aggravation, and mitigation. However, we determine that a 30-day actual suspension is the appropriate discipline in this matter.

Travel to Mongolia 

From January 24 through 29, 2014, Dunn traveled to Mongolia, and he was accompanied by then State Bar employee Tom Layton and former State Bar President Howard Miller, who was working as an attorney with the law firm, Girardi & Keese. Justin Ewert, Finance Director of the State Bar, was employed in 2014 as a budget analyst for the State Bar, and he testified at the disciplinary trial about the use of State Bar funds for the trip. He identified airfare and cell phone usage charges for Dunn and Layton totaling $6,041.72 that were billed to and paid by the State Bar. On March 4, 2014, Dunn submitted a reimbursement request for $1,114.37, which he testified was for cell phone charges incurred on his personal line while traveling. Peggy Van Horne, Chief Financial Officer of the State Bar, approved the request. The State Bar issued Dunn a check for the requested amount on March 11, which he deposited on March 14.

In April 2014, the State Bar received a $5,000 check from the Girardi & Keese law firm, dated March 20, 2014, that was sent by Miller; the check was made payable to the State Bar Access & Education Foundation. According to Dunn, the purpose of the check was to cover the State Bar’s expenses related to the Mongolia trip. Miller testified during Dunn’s employment arbitration that the $5,000 check was “intended to cover all costs, all out-of-pocket State Bar travel costs to Mongolia . . . past or future.” However, during the disciplinary trial, Ewert testified that the $5,000 did not reimburse the State Bar for the Mongolia trip expenses.

Finding 

the hearing judge found that Dunn’s denials lacked credibility, especially given his prior inconsistent statements. During the arbitration hearing, Dunn testified that he knew he would use State Bar funds prior to going to Mongolia, and he made a presentation to the Board in November 2013, informing the Board that the State Bar would pay coach airfare, but that Miller had proposed raising funds for the trip and would reimburse the State Bar. He also testified differently in a September 2016 arbitration deposition where he said that he told Rodriguez that State Bar funds would be used to cover the cost of the Mongolia trip, but he did not inform the Board of this, because “it would not have been standard for me in describing a potential expenditure.” We agree that Dunn’s shifting and inconsistent testimony damages his credibility, and we see no reason to otherwise disturb the judge’s credibility determination. (See McKnight v. State Bar, supra, 53 Cal.3d at p. 1032.) Accordingly, we credit the testimonies of Colantuono, Mangers, and Krinsky over Dunn.

Misleading Board

Finally, that Dunn requested and received reimbursement from the State Bar for his cell phone expenses while in Mongolia yet failed to then clarify his prior statements to the Board regarding the lack of State Bar funds being used for travel further demonstrates concealment. (See Zitny v. State Bar, supra, 64 Cal.2d at p. 792.) In sum, we conclude that Dunn intentionally misled the Board in violation of section 6106.

Sanction

One of the most fundamental rules for attorneys is honesty. (Tomlinson v. State Bar (1975) 13 Cal.3d 567, 577.) We consider the absence of aggravation and the substantial mitigation but find a period of actual suspension is warranted here given the serious misconduct that occurred in Dunn’s position as Executive Director of the State Bar. Even in the absence of harm, “dishonest acts are grounds for suspension or disbarment.” (Levin v. State Bar (1989) 47 Cal.3d 1140, 1147.) Accordingly, we find a 30-day actual suspension is necessary to protect the public, the courts, and the legal profession.

Hat tip to ABA Journal. (Mike Frisch)