Trials And Tribulations Of Girardi And Trump

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Thomas Girardi

I know that people might wonder (and I know my editor certainly does) why I include so many stories about Tom Girardi. For those who have practiced for some time (say, a minute or two), he is a cautionary tale for all lawyers, whether newbies or dinosaurs or anywhere in between. It doesn’t take much to get sucked into a downward spiral, whether the reasons be personal, professional, or a combo. The result is more than just newspaper and online stories, it’s the lasting reputational risk plus the bar disciplinary system breathing down an attorney’s neck. But it’s not just that attorney’s reputation that is shredded; it doesn’t help how we’re viewed by the public, our clients, and others. The crooked lawyer theme survives whatever happens to the particular lawyer. We all know enough lawyer jokes to fill a book, and the New Yorker published a book of lawyer cartoons 30 years ago. Lawyer jokes are not new. And it’s not the only book about lawyer jokes. The jokes and stories are hilarious, but we are the butt of them. Lawyers aren’t required to have a sense of humor, but they should.

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Sometimes the embezzled funds can be repaid, sometimes the attorney shows sufficient remorse that the license is not lifted forever, but the reputation never improves. And Girardi’s situation (I won’t use the word “plight” because he’s responsible for this massive fraud) is hopefully the exception and not the rule for lawyers, the vast majority of whom do their best to serve their clients. But the stain on the profession is not easily removed.

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We know how substance abuse can wreck professional and personal lives. We’ve all seen the statistics over the years, the personal stories that some lawyers have been brave and bold enough to share, but there is still too much that’s hidden: hidden from clients, from partners, from the court, from family and friends. I have no idea whether substance abuse has played any part in Girardi’s fall, but it continues to play a crucial role in lawyer discipline and the reputational risk that accompanies it.

Last week, I wrote that a federal district court here in Los Angeles had determined that Girardi was competent to stand trial for his various alleged misdeeds, but the ruling was under seal for a few days. Now the seal has been broken. Among the evidence that the court used to make that determination is what I will call “the ill-fitting and raggedy sweater” determination. One of the things that the court considered was Girardi’s dress. Whenever he appeared in court for the three-day competency hearing, or for meetings with lawyers and medical experts, which had several iterations, Girardi would wear what the court saw as sloppy compared to how he dressed pre-scandal. When he was practicing, Girardi was always well-dressed, in fact, dapper.

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But that wasn’t the only piece of evidence that the judge relied upon for her competency determination. Other factors included Girardi’s phone calls with his estranged wife, Erika Jayne, calls where there didn’t appear to be any memory issues, as well as testimony from various medical experts. Another piece of evidence was that Girardi dropped the “F-Bomb” on one of the prosecutors during the hearing, evidence showing that Girardi, an experienced trial lawyer, knew the importance of what the witness was asked.

The court found that Girardi was faking the extent of his alleged mental competency issues and “partially malingering.” The court also found that the timing of the reported symptoms of incompetency was “highly suspect.” The court’s conclusion: Girardi understands the nature and consequences of the charges against him and can assist properly in his defense.

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I saw Girardi on a Zoom bar association event in December 2020, in the midst of COVID-19, honoring the California chief justice. Girardi appeared to be in fine fettle that night, talking about his career as a lawyer and how fabulous it was to be so. If he had any difficulty that night, it was well-concealed.

Girardi’s trial will begin in May, later than the prosecution wanted, but considerably sooner than what his lawyers sought. The prosecution said it will narrow the scope of the case to focus on four cases brought by Girardi’s clients.

While we’re in the courtroom, so to speak, here’s an evidence question for you. Is “a qualified yes” a responsive answer for a question that calls for a “yes or no” answer? What do you think? Is this a case of wishful thinking?

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I wonder how the D.C. Circuit Court regarded this answer in the arguments earlier this week in the immunity case. Is this answer akin to a defendant in traffic court who pleads “guilty with an explanation”? That’s an answer I often heard when trying traffic cases so many years ago. The court told the defendant that guilty is still guilty, regardless of extenuating or explanatory circumstances. The response of Trump’s lawyer to the court’s hypothetical of whether immunity would attach to a president who ordered SEAL Team 6 to assassinate his political rival was “a qualified yes.” As the court pointed out, it was a question that called for a simple yes or no, the inference being that anything beyond a simple yes or no could be stricken as nonresponsive. No is a complete sentence.

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Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].

Topics

Courts, Donald Trump, Jill Switzer, Legal Ethics, Tom Girardi