Former Deputy DA, Judicial Candidate, Receives Slap on the Wrist from State Bar

Nearly a year and a half after campaign tactics cost Yolo County Deputy District Attorney Clinton Parish key supporters, then his election against sitting Superior Court Judge Dan Maguire, and ultimately his job in Yolo County, a hearing judge for the State Bar has found Mr. Parish “culpable of making a false assertion in a campaign mailer, with reckless disregard for the truth” and has recommended admonishment, which according to State Bar Communications Director Laura Ernde, “is not considered discipline.”

However, she told the media on Friday, “The decision is not final because the State Bar’s Office of Chief Trial Counsel has requested review by the State Bar Court Review Department.”

In an action filed on October 1, 2013, Allen Blumenthal, Senior Trial Counsel wrote, “The State Bar of California, appearing through Senior Trial Counsel Allen Blumenthal, hereby requests review of the Decision filed by the Hearing Department in this matter on September 13,2013, pursuant to rule 5.151 of the Rules of Procedure of the State Bar of California.”

Mr. Parish, for his attack mailers in March 2012 that proved to be largely if not completely inaccurate, was charged with failing to comply with Canon 5 of the Code of Judicial Ethics while seeking that judicial office.

The court found that Mr. Parish “is culpable of failing to comply with Canon 5 of the Code of Judicial Ethics.”

Canon 5B states: “A candidate for election or appointment to judicial office shall not … knowingly, or with reckless disregard for the truth, misrepresent the identity, qualifications, present position, or any other fact concerning the candidate or his or her opponent.”

The findings from Judge Pat McElroy of the State Bar Court, however, ruled, “In the interests of justice and after carefully considering all issues and evidence set forth during the three-day trial, including compelling mitigation (no prior record of discipline, demonstration of good character, and taking steps designed to timely atone for the consequences of respondent’s misconduct), the court has determined that any imposition of discipline would not further the objectives of attorney discipline and would be punitive in nature.”

Consequently, the judge concluded, “An admonition is the appropriate disposition of this matter.”

In the stated facts, in September 2011, Clinton Parish, a deputy district attorney in Yolo County with no prior political experience, announced he was campaigning for a judicial office in Yolo County.

His campaign was against sitting Superior Court Judge Daniel Maguire who had been appointed in October 2010, by then-Governor Arnold Schwarzenegger.

Mr. Parish hired Frank Ford as a paid campaign consultant. Later, the respondent also invited Kirby Wells, who was vice president of the Yolo County Republican Central Committee, to become involved in his campaign as an unpaid campaign consultant.

Mr. Wells became Director of Communications for the respondent’s campaign and believed that Mr. Ford was not aggressive enough and advised Clinton Parish to hire Aaron Park, who has been described as a “true believer” and a “flame thrower” with a right-wing blog.

In March. 2012, Mr. Ford was no longer involved, in part because Mr. Parish could not afford to pay him, and was replaced with Mr. Park, who along with Kirby Wells sought to conduct a more aggressive campaign.

The main charge was the series of fliers and attack mailers that targeted Judge Maguire, which were approved and sent out by Mr. Parish and his campaign.

The mailers, in targeting Maguire, made the following statements:

(1) That Maguire, while in private practice, “was involved in a sordid case of corporate fraud that involved payment of bribes in Russia”;

(2) That Maguire was “part of [Arnold Schwarzenegger’s] legal team,  that made decisions including commuting the sentence of convicted murderer Esteban Nunez”; and

(3) That Maguire was “quoted defending the Protocol Foundation – used to hide $1.7 million in [Arnold Schwarzenegger’ s] Travel Expenses.”

“The first of these three accusations was proven to be false,” Judge McElroy writes.  “The fallout from these controversial mailers was immediate. On May 15, 2012, Yolo County Sheriff Ed Prieto withdrew his endorsement of respondent. And by May 17, 2012, respondent’s boss, District Attorney Jeff Reisig; the Woodland Professional Police Employees’ Association; and the Yolo County Republican Party had withdrawn their support from respondent’s campaign.”

Mr. Parish “has readily acknowledged that he was ultimately responsible for his campaign to be elected judge.”  He terminated his relationship with Mr. Park and stopped campaigning by May 15.

One of the key accusations was the case of Russian bribes.  Dan Maguire, prior to being a judge, was an associate of a law firm, Home, Roberts and Owen, which had a main office in Denver, but also an office in Russia.  Mr. Maguire worked in the Denver office and had nothing to do with the Russian office.

The firm was sued for fraud in Denver, but prevailed in the matter and Mr. Maguire “had left HRO before the lawsuit had been filed and had nothing to do with the office in Russia.”

Clinton Parish was given this information, but only provided with excerpts of the case, and “while he approved its use in the mailer, he did not understand the fullness of it at the time.”

The judge writes, “(Mr. Parish) had relied on assumptions contained in emails he received from Wells and Park and admitted that he did not have any evidence that Maguire had worked on any case dealing with CAIB.”

The court writes, “The court concludes that respondent had a responsibility to find out if Wells’s and Park’s assumptions were true. The case where HRO prevailed over CAIB was easily accessible. All the assertions regarding the link to Russian bribery lent themselves to empirical evidence. Any reading of the case would have shown that HRO was the prevailing party. Therefore, by failing to take any reasonable steps to corroborate Wells’s and Park’s assumptions, respondent acted with reckless disregard of the truth.”

However, the court notes: “While (Clinton Parish’s) assertions were reckless, the court does not believe that respondent knew or believed they were false when he made them. Instead, respondent just relied on what Wells and Park were telling him.”

Mr. Ford would testify “that while the candidate has the final say, it is the campaign manager’s responsibility to check facts. Ford believes a candidate is acting reasonably when he relies on the campaign manager. The campaign manager (or consultant) does the research and gathers the information.”

However, the court does not agree.  The court instead writes, “It was not reasonable for respondent, who is a lawyer, to rely on Park’s interpretation of a case, when Park was not a lawyer and was known as a blogger with a right wing agenda. A short search on the internet would have revealed the truth. Respondent, however, did not do any research on the statements tying Maguire to Russian corporate fraud until the media brought it to his attention. Respondent admits that tying Maguire to the Russian corporate fraud was wrong. And the court finds his avoidance of accuracy was reckless.”

The court next tackled the issue “Maguire was part of Arnold Schwarzenegger’s legal team that made decisions including commuting the sentence of convicted murderer Esteban Nunez.”

Esteban Nunez is the son of former Speaker of the Assembly and current business partner of Arnold Schwarzenegger, Fabian Nunez.  Judge Maguire “asserts that he played no part in the commutation.”

The judge notes that by the time the commutation of the sentence was made, Judge Maguire was already a judge in Yolo County.  His responsibilities were the civil area, and he “credibly testified that he didn’t hear about Esteban Nunez’s commutation until after he was a judge, and, even then, he learned about it from the newspaper.”

The judge finds, “While it appears that respondent’s assertion was strong and exaggerated political rhetoric, the court does not find it to be patently false or reckless. Respondent does not state that Maguire made the decision to commute Esteban Nunez’s sentence, but instead that respondent was on the team that made that decision. And later in the same mailer, respondent acknowledged that Maguire took the bench three weeks before the commutation.”

Judge McElroy writes, “The only act that violated Canon 5B(2) was his assertion that Maguire, while in private practice, was involved in a sordid case of corporate fraud involving payment of bribes in Russia. This assertion was false and made with reckless disregard for the truth. And by making this assertion regarding his opponent with reckless disregard for the truth, respondent violated Canon 5B(2), in willful violation of rule 1-700(A).”

In aggravation, the judge cited the fact that “his reckless disregard for the truth clearly had the potential to cause significant harm to his running mate and the public.”  However, “the true impact cannot be ascertained based on the evidence currently before the court. Accordingly, the court does not find clear and convincing evidence of significant harm.”

The judge also notes, “Respondent has no prior record of discipline over several years of practice.”

Judge McElroy, noting the character testimony from several people in the community, comes to the conclusion, “Based on the limited scope of respondent’s violation, the extensive mitigating circumstances, and the lack of significant harm, the court concludes that an admonition is appropriate. This conclusion is bolstered by the court’s determination that respondent’s misconduct came as the result of a bad decision by a first-time judicial candidate, and is highly unlikely to reoccur.”

—David M. Greenwald reporting