Attorneys Douglas Winthrop and Jerome Falk of San Francisco based Howard Rice Canady Falk & Rabkin were exonerated recently by a special State Bar of California panel known as the RAD Committee.
Falk -- who recently dominated the news as the lawyer who represented Tyler and Cameron Winklevoss in their quest to rescind a prior settlement with Facebook -- was accused of grave misconduct earlier this year as a result of his decision to exonerate Thomas Girardi of Girardi & Keese and Walter Lack of Engstrom Lipscomb & Lack for misconduct the two committed while litigating a case against Dole Food Company before the Ninth Circuit Court of Appeals.
During the Ninth Circuit proceedings, and after the case against Dole was dismissed, Chief Judge Alex Kozinski issued an order to show cause why attorneys Walter Lack, Paul Triana, and Sean Topp of Engstrom and Howard Miller, as well as Thomas Girardi and Howard Miller of Girardi & Keese, should not be disbarred or suspended from practicing before the Ninth Circuit.
In addition, Judge Kozinski ordered the appointments of Senior Ninth Circuit Judge Wallace Tashima as special master and Rory Little as prosecutor in those special disciplinary proceedings known as the matter of In Re Girardi.
Thomas Girardi was represented in the matter by power-house Skadden Arps.
Subsequently, in late 2010, a Ninth Circuit panel consisting of Judges William Fletcher , Marsha Berzon, and Randy Smith found that Lack and Girardi had committed grave misconduct, and ordered them to report their misconduct to the State Bar of California.
The State Bar of California declared conflict in the matter because a partner of Girardi & Keese (Mr. Howard Miller) served as President of the State Bar; accordingly, Bar appointed an outside attorney, Jerry Falk of Howard Rice, to look into the matter.
In his capacity as special prosecutor, and after reviewing the Ninth Circuit file, Falk chose to not file any disciplinary accusations against Walter Lack, stating that he believed Lack's misconduct was not intentional.
Once Falk's decision was made public, a finger was pointed at him, and he was accused of having been influenced by pecuniary considerations due to the fact that Howard Rice and Skadden Arps (specifically, Falk and partner Douglas Winthrop) often litigate cases together as a team, such as in the cases of MGA vs. Mattel, Genentech and others.
In addition, allegations were made that it was improper to select the firm of Howard Rice for this appointment because Douglas Winthrop, the firm's managing partner, served as an officer of the State Bar of California. Specifically, Winthrop serves as President of a foundation which the State Bar of California maintains.
In a rare show of public criticism , San Diego-based legal ethics specialist David Cameron Carr also rebuked Jerry's Falk for his decision. Although, Carr was serving as President of the Association of Discipline Defense Counsel at the time he made these comments, Carr's remarks were made in his private capacity and were posted on his blog.
As a result of Falk's involvement, an ethics complaint was filed accusing Falk and Winthrop of misconduct, and a request for an investigation was filed with a special panel of the State Bar of California known as the RAD Committee.
The RAD Committee conducted its own investigation and retained special counsel to investigate this matter.
Recently, the special master recommended that the matter be closed because there was no showing that Falk and Winthrop engaged in any misconduct; the RAD Committee adopted this recommendation.