Conflicts Stall California Lawmaker’s Misconduct Case

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By Laura Mahoney

The California Assembly’s investigation into a lobbyist’s complaint that an Assemblyman trapped her in a bathroom and masturbated in front of her is stalled because of objections from her attorney that conflicts of interest taint the investigation.

Conflicts often may be built into the Legislature’s process for handling employment matters, according to a Bloomberg Law review of lawyers and law firms the Legislature uses.

One law firm the Assembly is using to investigate lobbyist Pamela Lopez’s Dec. 4 complaint against Assemblymember Matt Dababneh (D) also represents the lobbying firm Lopez works for. A second firm assisting in the investigation also represents the state Assembly. Because Lopez made her allegations publicly as part of a wave of calls to change a culture of sexual harassment at the Capitol, her lawyer’s objections now shine a rare public light on those conflicts.

The law firm Nossaman LLP has been pulled from advising the Assembly on Lopez’s complaint, according to Assembly Rules Committee Chair Ken Cooley (D). Cooley told Bloomberg Law he pulled Nossaman from the investigation after her attorney, Jean Hyams, informed him that Nossaman also represents Lopez’s lobbying firm, K Street Consulting. Hyams is with Levy Vinick Burrell Hyams LLP, in Oakland, Calif.

“We have often used the services of the Nossaman firm with respect to employment matters,” Cooley said. “In light of the reliance of K Street consulting on them for services in the past, the Assembly Rules Committee will not use the Nossaman firm for advice related to the outcome of the ongoing Dababneh investigation.”

Resignations, Investigations

The move comes two weeks after Lopez announced at a news conference that she filed her complaint with the Assembly Rules Committee against Dababneh over the incident, which she said occurred at a January 2016 social event in Las Vegas attended by people from the Capitol community. Dababneh announced Dec. 8 that he would resign from office Jan. 1. He has denied the allegations.

Dababneh is the second Assembly member to resign in the past month following allegations of sexual misconduct. Two senators are also being investigated—one for alleged improper touching of fellow lawmakers and another for a range of behavior, including inviting junior staff members to stay in his hotel room with him during work travel. The senators remain in office during the investigations and deny the allegations.

The stream of allegations—and the Legislature’s response to them—have rocked the Capitol since Oct. 17, when 140 women who work in and around the Capitol signed an open letter alleging a pervasive culture of harassment and assault. The leaders of that effort have since launched a campaign called We Said Enough, calling for the Legislature to create a bicameral, independent approach to investigate claims that is publicly accountable and protective of victims.

This Is A Test

Lopez said when she announced her complaint against Dababneh that she was doing so because Cooley and other lawmakers urged women and men to come forward and allow the Legislature to handle their complaints.

“I’m putting it in the hands of the lawmakers that have told me they will do what they can to protect me,” Lopez said Dec. 4. “This is a test of that process.”

Hyams informed Nossaman of its conflict Dec. 15, after Nossaman attorney John T. Kennedy responded to questions she posed to the Assembly Rules Committee about how the investigation would proceed. That’s when she learned Nossaman was involved in the matter, she told Bloomberg Law.

“As you know or should know through an appropriate conflicts check, Nossaman represents Ms. Lopez as a partner in K Street Consulting,” Hyams said in her Dec. 15 letter to Kennedy. “This creates a serious potential conflict of interest.”

Conflict Remains

In a statement emailed to Bloomberg Law, Nossaman spokesman Eric W. Miller said it has addressed Hyams’s concerns.

“When we became aware of a possible conflict between our clients, K Street Consulting and the California State Assembly, we took immediate action both internally and externally to address this potential conflict,” he said.

Hyams said despite removal of Nossaman from the matter, she is still advising Lopez against participating in the investigation because of the relationship between the Assembly and another firm, Van Dermyden Maddux P.C., which the Assembly has hired to conduct the investigation.

The fiduciary relationship between the Assembly and the firm, and the ability of the Assembly to use the attorney-client privilege to shield the investigator’s findings prevent a fair investigation, Hyams told Bloomberg Law.

“It’s an example of why victims don’t come forward because the deck is stacked against them,” Hyams said. “She’s is ready to participate in a fair process.”

Hyams informed Deborah Maddux, who is conducting the investigation, about her concerns in a Dec. 18 email.

No Decision on Investigator

Cooley told Bloomberg Law he hasn’t decided how to handle Hyams’s conflict concerns about the investigator.

“I’m still just trying to take stock in what’s the best way to handle all these matters,” he said. “It’s a case of first impression for me, to use that old chestnut from the law.”

Bloomberg Law has found that Nossaman is one among a stable of outside firms the Assembly and Senate use to train employees, investigate sexual misconduct complaints, and litigate employment cases. Each house has a different system and a different set of lawyers working for them, and much of what they do is protected by attorney-client privilege.

Nossaman is a 70-lawyer firm with four offices in California and others in Austin, Seattle, and Washington D.C. It is the sole firm that represents the Assembly in employment-related litigation, Assembly Rules Committee Chief Administrative Officer Debra Gravert told Bloomberg Law in a Dec. 5 email.

Lobbyists, Too

Beyond the conflict of representing both the Assembly and Lopez’s firm, Nossaman also has five staff members registered as lobbyists at the Capitol. One of those lobbyists, Jose J. Solorio, was a member of the Assembly from 2006 to 2012 and unsuccessfully ran for a state Senate seat in 2014.

The firm, or individual members of the firm, have made 97 contributions totaling $92,277 to Assembly candidates since 2015, according to filings with the California Secretary of State. Most of those contributions—$87,127—came from the firm itself. The rest came from employees. Recipients include Assemblywoman Laura Friedman (D), who chairs a Rules Subcommittee on Harassment, Discrimination, and Retaliation Prevention and Response, which is tasked with examining and improving the Assembly’s response to alleged sexual misconduct.

Nossaman’s spokesman didn’t respond to questions from Bloomberg Law about the multiple roles the firm plays at the Capitol.

Legal ethicists told Bloomberg Law the overlapping roles of representing the Assembly, lobbying Assembly members, and making campaign contributions to Assembly candidates aren’t illegal for the firm or its attorneys. If the roles present a true conflict, the firm can obtain a conflict waiver from clients under the California Rules of Professional Conduct, they said.

Conjoined Relationship

Ethical questions such as the overlapping roles at Nossaman can appear at the confluence of lawyers and politicians, Bruce Budner, a lecturer on legal ethics at the University of California, Berkeley School of Law, told Bloomberg Law.

“The Assembly could disallow such a conjoined relationship,” Budner said in an email. “But that seems unlikely for obvious reasons.”

Aside from the conflict between clients at Nossaman, the conflicts raised so far related to sexual misconduct cases are more hypothetical than actual conflicts, Diane Karpman, a legal ethics attorney in Los Angeles, said.

“At some point these claims of conflicts become crying wolf,” Karpman said. “It has to be a meaningful and substantial conflict.”

Hyams said it is common for employment-related investigations to be conducted by employer-hired firms. In the Legislature’s case, the employer’s incentive to protect itself is particularly acute and poses a greater risk to the employees. It is a body of peers who regulate themselves, and not a company with a chief executive who can take action, she said.

“The pressure is much greater in a political situation,” she said. “The steps to address the problems are so public and politically volatile.”

Training and Defense

The Legislature’s possible use of the same law firms to train employees and investigate complaints does present a meaningful conflict, Karpman said.

“You can’t defend your own work if you did the training,” Karpman said.

In both the Assembly and Senate, the same firms appear to be training employees and providing legal advice, based on information the Senate and Assembly rules committees provided to Bloomberg Law.

Littler Mendelson P.C. provides workplace violence prevention training to Assembly employees, and conducts investigations into employment-related complaints from employees, Assembly Rules Committee Chief Administrative Officer Debra Gravert told Bloomberg Law in an email.

Orrick, Herrington & Sutcliffe LLP provides sexual harassment training. Weintraub Tobin Chediak Colman Grodin P.C. and Shaw Law Group P.C. also conduct investigations into complaints, Gravert said.

Representatives of Littler and Weintraub told Bloomberg Law their client relationship with the Assembly prevents them from commenting on the scope of work they do for the body. An attorney for Orrick who conducts Assembly training sessions didn’t respond to requests for comment from Bloomberg Law.

Any Category of Complaint

Gravert said Littler and other firms may conduct investigations into any category of complaint.

“We may consider many relevant factors in choosing which firm to use for an investigation, all with the goal of ensuring a thorough, timely, and objective investigation is completed that will give us information in which we can have great confidence,” Gravert said.

In the Senate, Gordon Rees Scully Mansukhani LLP provides discrimination, harassment, and workplace violence prevention training to Senate staff, and one lawyer in the firm provides advice and representation to the Senate Rules Committee on employment matters, Secretary of the Senate Daniel Alvarez told Bloomberg Law in an email. The firm didn’t respond to a request for comment Dec. 20.

Victims Want Trust

Whether the ethical questions present true violations or hypothetical conflicts, they still cast doubt in the process for victims who are deciding to come forward and are looking for trusted counselors and lawyers, We Said Enough Counsel Christine Pelosi said.

“Any personal, political, or transactional connection between lawyers investigating sexual harassment and the politicians they are investigating must be forbidden,” she told Bloomberg Law in an email. “How can anyone be expected to come forward and confide his or her most intimate and painful truths to an attorney with possible connections to their abuser without any expectation of confidentially and without representation of their own?”

To contact the reporter on this story: Laura Mahoney in Sacramento, Calif. at lmahoney@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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