Muchnick Files Bar Association Attorney Misconduct Complaint Against University of California Senior Counsel, Who Lied Repeatedly to Courts in Public Records Act Case Over Withheld Documents in Ted Agu Football Death Cover-Up

ECW Press has announced the publication next year of Without Helmets or Shoulder Pads: The American Way of Death in Youth Football Conditioning. Three chapters of this book by Irvin Muchnick will chronicle, in order, the 2014 death of Ted Agu; UC Berkeley’s cover-up of the circumstances of that death; and the surrounding corruption, including the university’s scorched-earth legal tactics to try to keep the facts of the cover-up from emerging.

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by Irvin Muchnick

Last week I wrote here about how Michael R. Goldstein, senior counsel at the University of California Office of the President, egregiously and multiply lied to the court as part of the advocacy against my court petition, under the California Public Records Act, for internal documents in the cover-up of the circumstances of Cal-Berkeley football player Ted Agu’s death, from exertional sickling, in an extreme offseason conditioning drill in 2014.

This week I filed a formal complaint with the state bar association, requesting an investigation of Goldstein – member no. 129848 – for violations of Rule 8.4(c) (“conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation”) and/or Rule 8.4(d) (“conduct that is prejudicial to the administration of justice”).

I write in the complaint that it concerns Goldstein’s “advancement to the courts of a specific, serially stated, material, significant and impactful, and unquestionably willful misstatement of fact. This complaint is not based on the outcome of the case.”

(Last year I was ruled the “prevailing party” in Alameda County Superior Court, on the basis of having “catalyzed” the release of more than 700 pages of the university’s previously withheld internal documents pertaining to the management of Agu’s death and its aftermath. However, a state court appellate panel recently reversed that finding, canceling the completion of reimbursement of at least $125,000 of my attorney Roy Gordet’s legal fees for litigating the case for more than five years. At the bottom of this post are complete headline links to our coverage last week of the 1st District Court of Appeal ruling.)

Calling a series of Goldstein’s court statements “textbook perjury” from my layperson’s perspective, I state in the complaint that he lied “non-trivially, proactively, repeatedly. In order to establish as much, it is not necessary to hear disputed facts. This is because Mr. Goldstein, with bewildering audacity, himself opportunistically and cyclically asserted, under oath, direct contradictions of the same fact. For purposes of this complaint, it seems sufficient merely to review the self-evident and fundamental contradictions within Mr. Goldstein’s own emphatic words. What is before you is not ‘his word against mine’; it is ‘his word against his word.’”

Accompanying exhibits show Goldstein alternately asserting, in some examples, that UC had proposed seeking a privacy waiver from a third party, while in other examples he claimed that I was the one who had proposed the waiver. These assertions were made to support an argument that my lawsuit had not spurred new public records production.

The exhibits also show that Goldstein swore out one of the court documents containing his lies – a personal declaration – under explicit penalty of perjury. “CPRA’s policy objectives of transparency and accountability of public agencies simply have no chance of being achieved when the attorneys representing them are allowed to lie with impunity,” I write.

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In a February 16, 2018, case management statement, Goldstein said “the Regents proposed … that the Petitioner consider obtaining waivers.”

In his March 27, 2018, declaration, Goldstein said “I proposed to Mr. Gordet … that he and Mr. Muchnick consider obtaining waivers.”

In an August 20, 2020, brief, Goldstein said “the Regents proposed … that the Petitioner consider obtaining waivers.”

Yet in a September 10, 2020, brief, Goldstein:

● wrote that “Counsel for Petitioner came with up with the idea of seeking a waiver early in the case […]” (italics added);

● entitled the caption of a section of the brief “The Agu Family Waiver Was Petitioner’s Idea […]” (italics added);

● wrote “Petitioner is the one who first raised the idea of obtaining waivers […]” (italics added);

● while then pivoting back to writing “Petitioner never followed up on The Regents’ suggestion about obtaining waivers […]”; and then back again to

● “… the idea of obtaining a waiver came from Petitioner’s counsel …” (italics added);

● “The idea came from Petitioner, who offered it at the beginning of the case. It did not come from The Regents.” (italics added); and finally

● “It was Petitioner’s suggestion [of the waiver], not the Petition, that prompted The Regents to act.” (italics added)

My complaint adds that, as an aside, these “serial misstatements” were irrelevant to the argument before the Court, as well as “mystifying in their mendacity.” Both sides of the supposedly disputed fact were asserted by Goldstein during the period when, with scurrilous overreach, he also was attempting to have me sanctioned for allegedly having brought a “clearly frivolous” case. (Both the lower and appellate courts rejected this gambit by the university.)

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The full text of my State Bar complaint of attorney misconduct by Michael R. Goldstein, State Bar No. 129848, is viewable at http://muchnick.net/barcomplainttext.pdf. It quotes an essay entitled “Officer of the court,” by Curtis E.A. Karnow, a judge in San Francisco Superior Court.

Truth-telling by lawyers, Judge Karnow wrote in his article for the San Francisco Daily Journal, a legal industry publication, “is the basic rule. The rest is commentary.” He added that “like democracy itself,” preserving the safety of the courts from lies by their officers “needs constant attention.”

I conclude with the observation that the bar attorney misconduct disciplinary mechanism “is well positioned to apply, with clarity, this objective to my complaint.”

PREVIOUSLY:

“In Reversal, Appellate Court Rules UC ‘Prevailing Party’ in Public Records Case – Changing Nothing About Our Daylighting of Massive New Info in Cal’s Ted Agu Football Death Cover-Up,” November 7, https://concussioninc.net/?p=15070

“$125,000 Was a Small Price For Cal-Berkeley’s Already Successful Ted Agu Football Death Cover-Up. Fighting Even That Is Designed to Intimidate Anyone Daring to Use the Public Records Act to Investigate Cover-Ups,” November 8, https://concussioninc.net/?p=15073

“California Court of Appeal Is Setting a Harmful Precedent For Designating the ‘Prevailing Party’ in Public Records Act Cases Resulting in New Documents Exposing Public Agency Malfeasance,” November 9, https://concussioninc.net/?p=15079

“In the Public Records Act Case About the Ted Agu Football Death Cover-Up, the University of California Didn’t Even Stop Short of Outright Lying in Order to Get Its Way at the Court of Appeal,” November 10, https://concussioninc.net/?p=15095

“In Ted Agu Football Conditioning Death Cover-Up Public Records Act Case, Reporters Committee for Freedom of the Press and First Amendment Coalition Tell Appellate Court That University of California Seeks ‘to Chill Members of the Public, Including Journalists,’” March 24, https://concussioninc.net/?p=14970

“Flashback: Three Stories About the University of California’s Ted Agu Cover-Up That Were Specifically Enabled by Our Successful Public Records Act Lawsuit,” March 28, https://concussioninc.net/?p=14980