More Than a Year Later, State Bar ‘Interviews’ University of California Lawyer Michael R. Goldstein About My Ethics Complaint; Declines to Hold Hearing Over His Lies

by Irvin Muchnick

In a development that can be understated as unsurprising, given the arrogance and lack of accountability of the State Bar of California, the group’s Complaint Review Unit has rejected my appeal of its dismissal of an ethics complaint against Michael R. Goldstein, senior counsel in the University of California’s Office of the President.

I’ve written extensively about this matter – some of the links are at the bottom of this post. My recently published book WITHOUT HELMETS OR SHOULDER PADS: The American Way of Death in Football Conditioning devotes three chapters to Cal-Berkeley’s cover-up of the circumstances of the 2014 death of football player Ted Agu. (With evident intentionality, the university pushed a generic heart condition as the cause of death while suppressing evidence that it was an exertional attack associated with Agu’s internally known, but externally concealed, sickle cell trait condition.)

The university’s tactics included a justice-obstructing phone call by football team physician Dr. Casey Batten (who now holds the same position with the NFL’s Los Angeles Rams) to Dr. Thomas Beaver, then the Alameda County medical examiner, just before Beaver performed the Agu autopsy. Deposition testimony in the Agu family’s civil lawsuit against the UC Regents, which would settle for $4.75 million, made clear that Batten misled Beaver into a false original autopsy finding.

While defending UC in my 2017-2022 California Public Records Act (CPRA) lawsuit for withheld internal documents regarding the management of Agu’s demise in a bizarre offseason conditioning drill, Goldstein told blatant, serial, non-trivial lies. These were in the form of diametrically opposite factual statements within his own briefs – one time in the very same brief. He memorialized one rendition of his lies in a personal declaration sworn on penalty of perjury. Goldstein insisted that he proposed that the Agu family be solicited for a privacy waiver; he also insisted that I was the party who had proposed that the Agu family be solicited for a privacy waiver. As his arguments meandered to saying UC therefore shouldn’t be on the hook for my attorney’s fees, and that I should be sanctioned for having brought a “clearly frivolous” case, he was equally emphatic and redundant in underscoring these conflicting versions of the same fact. The package gave new meaning to the term “smokescreen.”

But it takes … shall we say it takes a lot … to move the Bar to discipline misconduct within its ranks. The new leaf pledged by this quasi-public entity, following exposure of its coddling of grifter celebrity lawyer Tom Girardi, has not been turned.

As a result of Goldstein’s willful misstatements, my lawyer Roy S. Gordet got screwed out of $125,000 for his years of work on the case. First, Alameda County Superior Court Judge Jeffrey Brand, an alum of Cal and Berkeley Law, found in our favor. Then, Court of Appeal Justice Mark Simons, a former UC Hastings College of Law faculty member, wrote the opinion of the three-judge panel that reversed Brand.

In terms of the public interest, part of the fallout was the effect, on all future journalists and potential good-faith CPRA litigants, of UC’s tactics, as executed by Goldstein’s lies. It was this factor that moved the Reporters Committee for Freedom of the Press and the First Amendment Coalition to file an amicus brief on my behalf. Goldstein’s argument that my CPRA petition was “clearly frivolous,” calling not only for UC not to have to pay Gordet’s fees, but also for counter punitive sanctions against me, was outrageous – a gambit never seen in the history of published CPRA cases. After Judge Brand turned this effort aside without comment, UC doubled down on this motion at the Court of Appeal. During appeal, the amici warned the appellate justices that UC was seeking “to chill members of the public, including journalists, from going to court to enforce their rights – a result that would harm the accountability of public institutions.”

With Solomonic subterfuge, Justice Simons et al. proceeded to decide that there would be no sanctions against me – and no fees for my lawyer, either.

In November 2022, I filed my Bar complaint over Goldstein’s violations of rules on “conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation” and “conduct that is prejudicial to the administration of justice.” Five months later, an investigator for the Bar’s Office of Chief Trial Counsel threw out the complaint because, he said, Goldstein’s “alleged” errant utterances — alleged as in, found in the case record up the wazoo — might very well have been simple “inadvertent mistakes.” In short, the investigator, Kenneth Advincula, never absolved Goldstein of lying in an action that involved substantial evidence that he did.

For good measure, Advincula summarized my complaint by reducing it to a single one of Goldstein’s multiple lies, thereby ignoring their numerosity and pattern. And the investigator claimed I had offered no theory of Goldstein’s motivation.

Advincula himself provided no evidence that he so much as bothered to notify Goldstein that he was under investigation or to record his side of the story.

Consideration of my appeal took the Complaint Review Unit (CRU) a tidy 10 additional months. (Helpfully, the Bar tells us that the review process “may” take eight months “or more.”) Earlier this year the new Bar trustees chair, Brandon N. Stallings, couldn’t bring himself to respond to my letter complaining of foot-dragging. Nor could State Senator Thomas J. Umberg, chair of the Senate Judiciary Committee, which has responsibility for oversight of the Bar. Nor could my own state senator, Nancy Skinner. But soon thereafter the voice of the Bar’s CRU finally thundered down from the mountaintop. My squeaky wheel wanted their grease? I got it.

CRU’s four-page flick of the wrist is another piece of boilerplate beauty – except for one key admission. Subsequent to the filing of my appeal, the denial letter says, the Bar “interviewed Mr. Goldstein regarding your allegations” and reviewed “evidence” in support of his response. In so doing, CRU was confirming that, as suspected, no such task had even been undertaken by the investigator last year.

Of course, the Bar has the duty to dismiss out of hand complaints that are patently frivolous or abusive. The question here is: Can they arrive at a unilateral finding in a non-frivolous, non-abusive complaint without even interviewing the accused? Also, when the review unit proceeds to cause the interview that should have been undertaken by the original investigator, how does that not, by definition, trigger a successful appeal by the complainant — that is, a formal disciplinary hearing in which, at the very least, a record of the evidence is made?

In my case, the Bar finally made a feint toward curing the flaw of its so-called investigation, but with no process or accountability – merely asserting that a grudging question or two had now been posed to Goldstein. No transcript, no evidence, no opportunity for cross-examination.

The CRU review decision also compounds investigator Advincula’s technique of focusing on a single of Goldstein’s multiple lies, and fails to address the investigator’s unbalanced impeachment of me for supposedly not having isolated Goldstein’s “motive.”

“We have independently reviewed the file in this matter and have concluded that we do not have a sufficient basis to recommend reopening your complaint,” the February 16 letter coos. “The imposition of discipline against an attorney requires sufficient evidence to prove, to a clear and convincing standard,” violation of the Rules of Professional Conduct.

Go tell that to San Francisco Superior Court Judge Curtis E.A. Karnow. In 2020, Karnow penned lofty and vaporous words about the importance of holding attorneys, who are “officers of the court,” accountable when they lie. Truth-telling, his essay in the Daily Journal, a local law paper, huffed, “is the basic rule. The rest is commentary.”

I have until next month try to get the California Supreme Court to accept an appeal. But what’s the use? I don’t have the $710 filing fee lying around. And the Supreme Court already last year declined to accept my lawyer Gordet’s request to review how the appellate panel, quarterbacked by Justice Simon, had reversed lower-court Judge Brand without going to the trouble of a single factual finding that Brand had abused his discretion in a fact-heavy case.

I’ve decided, instead, to settle for this comprehensive account of how contempt for the law, the truth, and the public flows downstream to Donald Trump. With one of those tributaries being the State Bar of California.

Irvin Muchnick’s next book, UNDERWATER: The Greed-Soaked Tale of Sexual Abuse in USA Swimming and Around the Globe, will be published later this year by ECW Press.

FURTHER READING:

“Full Text of the Attorney Misconduct Complaint Against University of California Senior Counsel Michael R. Goldstein, State Bar No. 129848,” November 18, 2022, https://concussioninc.net/?p=15105

“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,” April 13, 2023, https://concussioninc.net/?p=15174