Full Text of Appeal For State Bar Disciplinary Hearing in University of California Senior Counsel Michael R. Goldstein’s Alleged Lies to Courts in Public Records Act Case Concerning Ted Agu Football Death Cover-Up

PREVIOUSLY:

Full text of the attorney misconduct complaint against University of California Senior Counsel Michael R. Goldstein, State Bar No. 129848, https://concussioninc.net/?p=15105

“University of California Senior Counsel Michael R. Goldstein Was the Master of What the State Bar Calls Possible ‘Inadvertent Mistakes’ in the Public Records Act Case Over the Ted Agu Football Death Cover-Up,” https://concussioninc.net/?p=15168

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April 12, 2023

TO: Complaint Review Unit (CRU)
RE: Michael R. Goldstein, 22-O-14952

I respectfully submit that my complaint should be further reviewed for the following reasons.

The investigation was fatally flawed by virtue of being incomplete.

While [the dismissal letter from the Office of Chief Trial Counsel (OCTC)] describes various investigative steps, it does not include among them the sine non qua: an interview with and solicitation of information or documents from Mr. Goldstein. It is unclear if the investigator did, in fact, confront Mr. Goldstein with the complaint and its particular allegations, and simply failed to document such efforts; or if no such effort was even undertaken.

In either event, I am entitled to a record of the investigation and to confirmation that it was thorough. OCTC both should ask Mr. Goldstein for an accounting and should record that effort and its output. If Mr. Goldstein provided facts and/or arguments in rebuttal, those should be produced.

It is possible to imagine a complaint for which the investigator can evidently interject his own interpretations, without explicit support or evidence of investigation – for example, if the complaint was abusive or incoherent. That is not the case here. My complaint is carefully documented, and indeed I believe it would be accurate to characterize it as “prima facie” in terms of establishing a non-trivial pattern of fundamentally contradictory representations to courts by Mr. Goldstein. (Mr. Advincula seems to acknowledge this prima facie aspect with respect to at least the misstatements themselves, for which he proceeds to fall back on his own conclusion, unsupported by evidence of any investigative effort, that they “cannot be proven deceitful or as inadvertent mistakes.”)

I add that a record of respondent’s side of the story – in lieu of Mr. Advincula’s summary dismissal – is important beyond fairness to this complainant. It is also part of the State Bar’s demonstration that it takes seriously Trustee Chair Duran’s recent pledge, going forward, of “transparency and accountability and [restoring] public trust” in the wake of the Girardi scandals.

OCTC’s summary of the allegations is unfaithful.

I am perplexed by the context-free recitation in Mr. Advincula’s letter of a single example of when Mr. Goldstein stated one thing, then its diametric opposite. The complaint includes multiple such examples, establishing a pattern, and also notes that a particular example was in a personal declaration sworn on penalty of perjury. The investigation disposition letter simply does not evince thorough and thoughtful consideration of redundant allegations of deliberate untruthfulness by an officer of the court.

OCTC unfairly impeaches my complaint on the basis of supposed uncertainty with respect to motives for Mr. Goldstein’s serial lies – while failing to explore the patently obvious probable motives.

In our telephone interview, Mr. Advincula asked me why I believe Mr. Goldstein had so behaved. I replied that I preferred to stick with known facts instead of speculation. Those known facts are the mendacity and the pattern of mendacity. In their number, repetition, and self-contradiction, the erroneous statements reflected something grossly untoward in the defense of a public agency in a type of case – a California Public Records Act petition – that concerned public interest principles, not a commercial dispute.

I understand that the factor of pernicious intent is what escalates a mere misstatement to the level of significant malfeasance. However, I suggest that only anti-complainant bias could explain failure to recognize plausible theories of motive here. I shared with Mr. Advincula a passage of the amicus brief of the Reporters Committee for Freedom of the Press and the California First Amendment Coalition, which I now reproduce again: “By characterizing the Petition here as frivolous, the Regents seek to saddle ordinary requesters who would assert their rights under the CPRA with potentially devastating attorneys’ fees. The threat of such fees, alone, could chill the willingness of members of the public with legitimate claims to pursue litigation to enforce their right to access information—especially in cases presenting close questions of law.”

In their fundamentals, the lies of Mr. Goldstein, in a relentless smokescreen pattern, supported the University of California’s defense against the requester’s motion for attorney fees (as well as Mr. Goldstein’s client’s own outrageous, unprecedented cross-motion to impose punitive sanctions on a journalist-records requester), by falsely portraying institutional actions related to obligations to release documents.

OCTC’s apparent unwillingness to engage what was at stake in this scenario, along with the State Bar’s important role in enforcing honesty on the part of attorneys, is unfortunate and should be corrected by CRU.

OCTC separately says “no sanctions were made against respondent” and “the Appellate Court did not rule against respondent.” Emphatically, those are not the correct standards for State Bar discipline of a member who engaged in unethical conduct. Such standards should be the State Bar’s independent judgment, based on the evidence of the complaint and on values of public trust.

As I noted to Mr. Advincula, we did contemporaneously point out Mr. Goldstein’s lies to Alameda County Superior Court Judge Brand. In his ruling on the motions before him, he chose to be silent with respect to Mr. Goldstein’s blatant untruthfulness. Why? You would have to ask Judge Brand why he failed, at minimum, to admonish Mr. Goldstein; perhaps the judge felt, since he was ruling in my side’s favor, that there was no need. In light of the court’s ruling, it was understandable for me to choose to table the complaint of attorney misconduct until such time as I could participate, without prejudice to a pending judicial matter, in this very administrative process of the State Bar. This member of the public finds disappointing – and, again, counter to Chair Duran’s stated determination to do better moving forward – that OCTC has sought the cover of a directly parallel action by a judge. This is especially disturbing when you consider that the deceptive conduct might not have been picked up on by the judge; indeed, might not have been picked up on as a very function of the successful fraud and deceitfulness in the moment.

Respectfully submitted,

Irvin Muchnick

Next at Concussion Inc.: Exchange of letters with investigator Kenneth Advincula