The Rise & Fall of Joe Dunn as Whistleblower

The average reader doesn’t subscribe to the Los Angeles Daily Journal, but many lawyers do.  We readers have been almost weekly updated on the saga of Joe Dunn v. State Bar of California.  Dunn alleged breach of a severance agreement, and a whistleblower claim.  He lost on both this last week.  [The story is found at Los Angeles Daily Journal, March 21, 2017, P. 1.]

What makes the case unusual of course is that Joe Dunn is a prominent person who was an Orange County Plaintiff’s attorney, a California State Senator, a founding member pushing for the establishment of the University of California School of Law, Irvine, a past Executive Director of the California Medical Association and finally, past C.E.O. of the California Bar Association.  He is currently a lecturer at the UCI School of Law.

I first encountered Joe Dunn in 2010 when he taught a Continuing Legal Education [CEB] course in gender bias and ethics.  I was so impressed with the presentation that two years later, I invited him to present at the Orange County Bar Association Labor and Employment Law Section presentation on gender bias in the law.  I remember his ability to connect directly with the audience with real life examples was unique.  You could see why he succeeded as a Plaintiff’s lawyer and politician.

So when Joe Dunn took on the State Bar for wrongful termination of employment, I paid attention.  Opposing his case was the former prosecutor in the Enron corruption trials, John Hueston.  Hueston came to Orange County out of the U.S. Attorney’s office, and after working a while in a private firm, opened his own firm.  Back in 2011 when I was Section President, Hueston was President of the Orange County Bar Association.  He was instrumental in moving the Bar’s offices and in forming a section known as the “Master’s Division” of the County Bar.  I belong to this section that focuses on members with 25 or more years of practice.

Why Did Joe Dunn Lose His Whistleblower Case?

Why did Dunn lose this battle of the Titans?  To read the Daily Journal, it was because he failed to put on evidence that he had a “reasonable belief” that the Chief Prosecutor for the Bar had violated a regulation or statute when he reported to the Board that she had misrepresented the number of open disciplinary cases against Attorneys.

Dunn also claimed that the Board inferred from a letter from attorney Mark Geragos that Dunn was the source of a protest that the Bar Prosecutor was misrepresenting the size of her backlogged cases.  Dunn was fired just days after the Board received the letter.  Geragos did not identify Dunn as one of the complaining employees, and the Arbitrator, Edward Infante, found insufficient evidence that the Board knew Dunn was the source of the Complaint when it made its decision to fire him.  As it turned out, Mark Geragos was and continued to be Dunn’s attorney, including during the Arbitration.

Bottom line:  Dunn didn’t meet the burden of proof.  The Arbitrator found cause to terminate based on Dunn’s failure to fully inform the Board and failure to accurately state the position of the Chief Justice on the State Supreme Court on the question of moving the Bar Offices from San Francisco to Sacramento.  As a result, Dunn also failed to make his case for $190,000.00 in severance pay because of breach of severance contract.

Do Juries in Whistleblower Cases Make a Difference?

Ironically, on the same page as the Dunn story the Daily Journal reported “Fired deputy city attorney wins $2.6M in whistleblower trial.”  Of that verdict, $1.29 million was in emotional distress damages.  In the Dunn case, Geragos complained that the Arbitration process itself was the cause of the outcome, and that if he had been allowed to try the case to a jury, the case would have been worth $4 to $6 million. He might be right.

Who You Gonna Believe?

Finally, in what was one of the most extraordinary developments of the Dunn case, the Chief Justice of the California Supreme Court was required to give deposition testimony.  Contradicting Joe Dunn, the Justice testified she had never discussed moving the Bar’s offices from San Francisco.  Apparently, the Arbitrator gave her testimony the greater weight.

For other news, see my other updates:

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