‘California State Bar Fumbles Again in UC’s Cover-Up of Ted Agu Football Conditioning Death’ … full text from Salon

Without Helmets or Shoulder Pads: The American Way of Death in Football Conditioning will be published on October 3 by ECW Press. See the cover image now at our home page. Advance praise and preorder information shortly.

The article below was published April 23, at https://www.salon.com/2023/04/23/california-fumbles-again-as-cover-up-of-uc-football-players-slowly-unravels/, under the headline “California fumbles again as cover-up of UC football player’s death slowly unravels.”

by Irvin Muchnick

The propensity of state bar associations to coddle perpetrators of professional misconduct, when they’re supposed to be disciplining them, is a long-discussed breach of the social contract. Donald Trump henchman Rudy Giuliani pushed misrepresentations in numerous courts about the integrity of the 2020 election, confident that it would take years of such lies before the bar authorities would even begin to think about moves to revoke his license.

California is a venue where bar oversight corruption is now playing out in public view. One offshoot of the story involves my efforts, under the state’s Public Records Act, to liberate information in the cover-up of the 2014 death of University of California football player Ted Agu.

My case ebbed and flowed for six years, until a state Court of Appeal last fall reversed a lower Superior Court finding that my attorney, Roy S. Gordet, would be reimbursed $125,000 in legal fees. We were no longer the “prevailing party” for having spurred UC’s belated release of more than 700 pages of documents related to Agu death’s from exertional sickling, which at first was inaccurately reported as a cardiac episode.

I believe that a UC senior counsel named Michael R. Goldstein helped bring about that unfortunate result by floating particular blatant lies to courts. While the stakes may not have been Giuliani-esque, they weren’t trivial either. In an amicus brief on my behalf at the Court of Appeal, the Reporters Committee for Freedom of the Press and the California First Amendment Coalition wrote that the university’s move for sanctions against me for bringing a “clearly frivolous case” added up to a threat to “saddle ordinary [public records act] requesters who would assert their rights … with potentially devastating attorneys’ fees.” The threat alone, they added, “could chill the willingness of members of the public with legitimate claims to pursue litigation to enforce their right to access information.”

When the case was over, I filed a complaint against Goldstein with the state bar, alleging violations of ethics rules prohibiting “dishonesty, fraud, deceit, or reckless or intentional misrepresentation” and “conduct that is prejudicial to the administration of justice.” Earlier this month, the legal group’s Office of Chief Trial Counsel dismissed my complaint. The state bar’s credibility issues form part of the background of my appeal to the Complaint Review Unit.

Meanwhile, celebrity lawyer Tom Girardi is currently under two federal indictments for stealing more than $18 million from clients, following reports by the Los Angeles Times establishing that the state bar had blown off multiple official complaints about him for decades, through apparent quid pro quo with bar officials. Girardi was finally disbarred last year.

In its embarrassment, the state bar commissioned what its trustees chair, Ruben Duran, called two “unflinching investigations by outside experts.” Their findings, released last month, exposed “a shocking past culture of unethical and unacceptable behavior,” Duran said. Moving forward, he pledged “transparency and accountability and [restoring] public trust.”

I wasn’t entirely surprised by the state bar’s disposition of my complaint against UC’s Goldstein, given the reluctance there to do anything about lawyers who beat their wives, snort cocaine before court hearings or — as in the Girardi matter, the most common pattern — embezzle money from their clients.

What did take me aback, however, was the sheer laziness of the complaint dismissal, in the context of all the recent bad publicity. Providing no evidence, the investigator simply asserted that the disputed statements “allegedly” made by Goldstein “cannot be proven deceitful or as inadvertent mistakes.” Surrounding commentary didn’t even say whether Goldstein had been asked for his side of the story, or was contacted at all.

State bar critics have advised me not to hold my breath for a better fate in the complaint appeal process. Jay Edelson heads a Chicago law firm that was victimized by Girardi. Edelson and a partner, Alex Tievsky, recently wrote an essay for American Law Media’s law.com headlined “The State Bar Lacks the Moral Authority to Oversee Attorney Discipline.”

Edelson told Salon: “The bar’s protection of the Girardi Keese fraud for decades would, by itself, call everything the bar does — or, particularly, does not do — into question. The fact that it has chosen to create a false public front of reform when it’s still protecting criminal lawyers demonstrates that it has forever lost its moral authority. The integrity of our judicial system depends on a bar we can trust, and we have the exact opposite.”

The California bar’s Duran did not return Salon’s messages requesting comment for this article.

*  *  *

Were Michael R. Goldstein’s prevarications as egregious as I maintain? You decide.

Throughout our case, Goldstein wrote in case management statements and briefs — as well as in a personal declaration sworn on penalty of perjury — two alternating and diametrically contradictory accounts. In one of them, UC first proposed trying to get a privacy waiver from the Agu family; in the other, I did. As I said in my state bar complaint, the argument wasn’t my word against his, but his against his. There were at least four substantial passages in the court record where Goldstein claimed, in service of a polemical point, that it had been my idea to seek privacy waivers from student-athletes named in documents. There were at least five times where he insisted with equal vehemence that it had been his idea.

In the climactic briefing in 2020, Goldstein outdid himself. Then he said ,”Counsel for Petitioner came with up with the idea of seeking a waiver early in the case.” Indeed, an entire section of the brief was captioned, “The Agu Family Waiver Was Petitioner’s Idea.” Yet in the same document of the same filing, Goldstein also wrote: “Petitioner never followed up on The Regents’ suggestion about obtaining waivers.”

If what Goldstein committed was indeed mere “inadvertence,” as the state bar investigator suggested, that wouldn’t have been his first such error in protection of UC’s cover-up of Agu’s death. (Conveniently, these “mistakes” were leveraged to try to persuade the California courts to punish a journalist for doing his job.)

In March 2019, nearly two years into the public records lawsuit, Goldstein sent to our side redacted copies of a Dec. 15, 2015, email exchange between Dr. Casey Batten, the football team physician, and Christopher Patti, the late Berkeley campus chief counsel. Batten had quarterbacked the cover-up: he withheld from the county medical examiner the fact that Agu had been screened for sickle cell trait and found to be a carrier of sickle cell trait, and pushed the false finding of “hypertrophic cardiomyopathy” (i.e., a thickened heart). The autopsy wouldn’t be corrected for two more years, until after discovery and depositions in a wrongful death lawsuit filed by Agu’s parents, which the university settled for $4.75 million. (Batten is now team doctor for the NFL’s Los Angeles Rams and practices at the prestigious Cedars-Sinai Medical Center.)

In the bag of sleazy litigation tactics, sudden attacks of bad memory — of the kind urged by a Trump-world lawyer to Cassidy Hutchinson, the former White House aide and Jan. 6 committee whistleblower — often pick up where inadvertence ends.

Later in 2019, my attorney Gordet deposed Solly Fulp, a former deputy athletic director at Cal. Goldstein defended the deposition. (Before his time at the university, Fulp had been an executive at Learfield, a college sports marketing company; when he left Cal, he returned to Learfield as its executive vice president.)

We questioned Fulp about a confidential email chain among athletic department and UC administration officials that he’d shared, for no apparent reason, with his father, Ian Fulp, a parks and recreation director in Alaska. This slip-up informed our argument that the documents had already found their way to members of the public and were subject to release under the Public Records Act.

Gordet asked Fulp why he’d shared the sensitive emails about the Ted Agu death with recipient “Dad,” and whether he’d had any related conversations either with his father or with other participants in the email chain.

The deposition transcript shows, by my count, that over the course of an hour Fulp answered “I cannot recall” or similar statements 119 times.

My state bar appeal letter can be read here.