Attorneys for the State Bar say two witnesses called to testify in connection with an internal investigation into whether its own employees may have assisted troubled former attorney Thomas Girardi in avoiding discipline over the years cannot escape their obligations by citing their previous settlements in cases against the organization.
Although the State Bar petitions refer to both individuals issued subpoenas as “confidential” witnesses, their attorneys in their court papers filed in Los Angeles Superior Court identify them as former state bar investigator Thomas Layton and his then-assistant, Sonja Oehler.
Layton and Oehler settled lawsuits against the State Bar for $400,000 and $150,000, respectively, according to the Layton-Oehler attorneys’ court papers. Layton was asked about Girardi during depositions in those previous lawsuits, according to his attorneys’ court papers.
The settlement release language in both cases prevents any inquiries about the employment of Layton and Oehler with the State Bar, including interactions with, or knowledge about, Girardi while they were working for the State Bar, according to their attorneys’ court papers.
But that assertion is challenged by court papers filed by State Bar lawyers on Wednesday. They say the settlement agreement releases apply only to obligations existing before or at the time of the accords and so therefore Layton and Oehler are bound by subsequent subpoenas for their testimony.
The Girardi investigation did not even start until more than two years after the settlement agreements went into effect, the State Bar lawyers further state in their court papers.
The State Bar lawyers also chastise in their court papers language by the Layton-Oehler attorneys stating that it is “shameful that State Bar, which is tasked with compelling attorneys to uphold their contracts with their clients, not only wants to abandon the clear contractual obligations it agreed to but further asks this court to aid them in breaching the settlement(s) they signed and evading the obligations clearly set forth therein.”
The State Bar attorneys respond in their court papers that while the Layton-Oehler lawyers “histrionically” make such an assertion, in reality it could “never be shameful for the State Bar to seek important information from a witness in pursuit of its statutory public protection mission.”
Girardi was disbarred earlier this year by the state Supreme Court and ordered to pay $2.28 million, plus 10% interest, for funds allegedly stolen from clients.
The State Bar on Jan. 10 recommended that Girardi’s law license be taken away, in large part for allegedly misappropriating nearly $2 million that belonged to the minor children of air crash victims.
The only other discipline Girardi received was a private reproval in 1999. The State Bar has hired the law firm of Halpern May Ybarra Gelberg LLP to find out why.
Because the investigation involves the handling of complaints by State Bar employees, including attorneys within the Office of Chief Trial Counsel, the chief trial counsel was recused from conducting the probe, according to the State Bar’s court papers.
During the investigation, Aaron M. May of Halpern May found that a “confidential witness” likely has relevant information and so he issued a subpoena on July 11 directing the person to appear for an Aug. 11 deposition and bring the requested documents, according to the petition involving Oehler.
The State Bar’s petition pertaining to Layton was filed under seal, but his attorneys’ response was not.
May cited authority for the subpoena power to an attorney for the witness, but the lawyer, without challenging the law given, argued it was barred on other grounds and the witness did not appear, according to the State Bar’s court papers.
“It is not disputed that confidential witness was served the subpoena or that he or she refused to comply with the subpoena,” State Bar attorneys state in their court papers regarding Oehler. “As such, confidential witness is in contempt of the State Bar pursuant to (the state California Business and Professions Code.)”
A hearing on the subpoenas is scheduled Nov. 23 before Judge Michael L. Stern.