I write to address matters relating to the involvement by you and your firm in the circumstances surrounding the appointment, and subsequent actions, of Jerome Falk as Special Deputy Trial Counsel for purposes of examining attorney misconduct in the litigation against Dole.
As explained below, I request that you forward to me various data and information.
Because Mr. Miller served as President of the State Bar during the imposition of discipline by the Ninth Circuit, the State Bar properly disqualified itself. Mr. Falk of Howard Rice — a firm in which you are both members — was appointed to serve as Special Deputy Trial Counsel. Mr. Falk's recommendations shocked many including, most recently, Mr. David Cameron Carr, President of the Association of Discipline Defense Counsel.
My position is that because Mr. Falk should never have been assigned the task of serving as Special Deputy Trial Counsel, his decision is void, as it was procured as a result of factors inconsistent with the proper administration of justice.
Accordingly, a few weeks ago I asked the Board of Governors to independently examine the circumstances and reassign the case to a wholly new independent and neutral Special Deputy Trial Counsel. I have also advanced an ethics complaint against Messrs. Falk, Winthrop, Miller, and Towery for improperly assigning the case to the firm of Howard Rice, and against Mr. Falk for prosecutorial misconduct. Additionally, if necessary, I plan to approach the California Supreme Court for redress.
When Jerome Falk was notified that he was selected to serve as Special Deputy Trial Counsel, alarms, bells, whistles, and red flags should have been raised and sounded at the offices of Howard Rice Nemerovski Canady Falk & Rabkin. The appointment should have been immediately overruled by the managing partner of Howard Rice (Mr. Douglas Winthrop) during the conflict check process as he himself served (and continues to serve) as an officer of the State Bar of California.
Also, the appointment should have been immediately overruled because of the close personal relationship between Mr. Winthrop and Mr. Miller (who, in addition to serving as president of the State Bar and a partner with Girardi & Keese, was one of the attorneys Jerome Falk should have investigated because he was one of the attorneys of record in the case against Dole).
Moreover, during the initial conflict check, both of you (as well as Mr. Noah Rosenthal) had a duty to speak up and point out that, due to the nature of your practice (i.e. defending attorneys and law-firms in ethics-related proceedings) doubts would be raised as to Howard Rice's impartiality, in that Jerome Falk would arguably be influenced by financial considerations and would compromise his duties of loyalty and zealousness as a special prosecutor by failing to prosecute with vigor. After all, a firm known as "the lawyers for lawyers” would not want to cross to the other side given the potential damage to its reputation in that arena. Mr. SeLegue's and Mr. Rosenthal's membership in the specialized Bar known as the "Association of Discipline Defense Counsel” further bolsters this rational.
As a side note, and as referenced above, even the President of that organization expressed dismay at the result of Mr. Falk's decision in an article he wrote entitled, "It is good to be a king.” The fact that Mr. Girardi's other attorney in the matter of In Re Girardi, Ms. Diane Karpman, is also a member of the association (who also, conveniently, chose to remain silent) further raises doubts.
Notwithstanding Sean SeLegue's role as the main actor, both of you had a duty to speak up again around October 12, 2010, when the First District Court of Appeal published its decision in Benjamin, Weill & Mazer v. Kors, 189 Cal.App.4th 126 (2010) concerning Sean SeLegue's appearance of partiality; the rationale of that decision alone should have alerted all of you that doubts would be raised as to the impartiality of Jerome Falk and firm that specializes in defending attorneys and law firms when it is selected to prosecute attorney misconduct.
As such, in addition to Jerome Falk and Douglas Winthrop, doubts exist as to the impartiality and the fulfillment of duties by both of you, as well as whether all of you compromised your professional obligations in favor of economic considerations in order to maintain a future stream of clients in general, and from the firm of Skadden Arps in particular.
Therefore, in order to complete my inquiry into these matters, I ask you to forward me the following information, which I plan to use when amending the ethics complaint and when approaching the California Supreme Court:
1. The extent of Howard Rice's involvement in the case of Slesinger v. Walt Disney. At one point or another, Girardi & Keese, Eric M. George of Browne Woods George, and Steven Mayer of Howard Rice were involved in this matter as plaintiffs' counsel. As such, I need as much information as possible. I ask that you specifically advise me whether Howard Rice took the case on a contingency basis, and whether Girardi & Keese and Eric George's firm maintain liens on any potential recovery.
2. The extent of Mr. Winthrop's and Ms. Phillips' involvement as a members of a State Bar of California Foundation event committee in an event sponsored, in part, by Engstrom, Lipscomb and Lack. It is interesting to note that prior to this event, Engstrom, Lipscomb and Lack never made any contribution to the Foundation.
3. Thomas Nolan, the West Coast chair of Skadden Arps, represented Mr. Girardi in the matter of In Re Girardi. The relationship between Messrs. Nolan and Girardi extends beyond the average attorney-client relationship. Their close friendship and loyalty to each other is well known and well established. As such, I ask that you also provide a list of all cases in which Howard Rice and Skadden Arps both represented parties in the past 5 years.
In addition to the matters of Mattel v. MGA and City of Hope v. Genentech, I ask that you provide information about transactions which may not generally be accessed by the public, as well as all proceedings involving arbitration, mediation, securities, etc. Please include proceedings venued outside of California, such as Mary Morgan v. Berry Cash, if they exist.
As questions exist as to the motives of Skadden Arps in asking the Ninth Circuit to remove its name from the published decision in the matter of In Re Girardi at around the time Mr. Girardi was acting as plaintiffs' lead counsel in Fogel v. Farmers Group (a case in which Raoul Kennedy of Skadden Arps was part of the defense team), I ask that you briefly delineate the relationship between Raoul Kennedy and Howard Rice in matters other than Strauss v. Horton.
4. Prior to assuming the role of Chief Trial Counsel, James Towery served as the attorney for ConnectU — a company established by Howard Rice's clients, Messrs. Winklevoss. While the case was litigated, there were back and forth communications between Sean SeLegue and James Towery. As ConnectU eventually was subsumed by Facebook and as a result of other complicated transactions, I ask that you briefly delineate the role and the extent of involvement of Jerome Falk, Sean SeLegue, and James Towery in those matters, and whether or not their interests were adverse to one another.
5. The extent, if at all, of the relationship between Howard Rice and Girardi & Keese and Engstrom, Lipscomb and Lack. Was Howard Rice ever assisted by or did it obtain assistance, either formally or informally, from either of those firms such as, for example, in the case Howard Rice prosecuted against Ford Motor Company? At first glance, it appears fortuitous that all three firms engaged in litigation against Ford around the same time.
6. Due to the enmeshment of Girardi & Keese and Howard Rice with the State Bar of California, I request a detailed list of all monetary contributions by Howard Rice to the State Bar of California in the past 5 years.
In addition to the Foundation of the State Bar of California, the State Bar also encourages members to donate money to various other programs, such as the "Justice Gap Funds” and the "California Equal Access Fund.” While donations made to the Foundation are easily ascertained and are otherwise freely available for public inspection, there is much secrecy about the amounts contributed and how the funds are distributed (including amounts) with respect to the Justice Gap Funds and the California Equal Access Funds.
7. Any and all other factors or facts that would cause a reasonable person to entertain doubts as to the impartiality of Howard Rice and its members in the proceedings at issue, including the disclosure of relationships between members of the firm and others (ie, former Chief Justice Ronald George). If, for example, Jerome Falk or Stephen Mayer are friends of the former Chief Justice, this should be disclosed.
Serious concerns exist as to the relationship and friendship between Mr. Girardi and Ronald George. Similarly, concerns exist regarding a class action in which Walter Lack, Thomas Girardi, and Eric George prosecuted on behalf of various plaintiffs in the Hawaiian Ocean Shipping antitrust litigation, as well as the Horizon Lines matter in which Walter Lack and Eric George were part of a team of plaintiffs' counsel.
Thank you for your cooperation regrading these matters. I look forward to your response.
For important updates, including communication from Jerome Falk, please see @: