Friday, June 24, 2022

Strike Two

The California State Bar Court Review Department denied a second reinstatement attempt to an attorney who leaked grand jury transcripts in a high profile criminal matter

On February 27, the prosecution agreed to provide the defendants with a copy of the grand jury testimony of various professional and amateur athletes, including Tim Montgomery, Jason Giambi, Barry Bonds, and Gary Sheffield. Ellerman agreed during a court hearing that production of the grand jury transcripts would be subject to a stipulated protective order.

He signed the protective order but

In June 2004, Ellerman willfully disobeyed Judge Illston’s protective order by allowing Mark Fainaru-Wada, a reporter for the San Francisco Chronicle (Chronicle), to take verbatim notes of Tim Montgomery’s grand jury testimony.

He denied in court pleadings that he was the leaker

In November 2004, while the motion to dismiss was pending, Ellerman again willfully disobeyed the protective order. This time he allowed Fainaru-Wada to take verbatim notes of the grand jury testimony of Jason Giambi, Barry Bonds, and Gary Sheffield, which the reporter published in the Chronicle. Ellerman also gave the reporter a copy of Barry Bonds’s testimony.

He denied it to the FBI and was convicted of a contempt, false declaration and obstruction of justice

On July 12, 2007, United States District Court Judge Jeffrey S. White sentenced Ellerman to 30 months of incarceration and three years of supervised release with conditions, including that he undertake 10 law school presentations on ethics.

An issue

Also in 2010, Ellerman wrote a book titled Forging Iron, which was published in 2011. Ellerman authored the book as a memoir, in which he stated his motivations for violating the protective order and releasing the grand jury transcripts. In Forging Iron, he claimed that he chose to break the law for the sake of exposing the truth about performing enhancement drug use in professional baseball and the federal government’s inconsistent claim that it was cleaning up professional sports while not going after the athletes using those drugs. Ellerman justified his criminal conduct as a solution to injustices in professional baseball.

Not ready to return to practice

We must view Ellerman’s rehabilitation in light of the moral shortcomings that preceded his resignation. Ellerman’s numerous and egregious acts involved significant deceit. He violated a court order by disseminating confidential grand jury transcripts and spent two years engaging in multiple lies to cover up his acts. He tried to leverage his lies to his advantage by misleading a federal judge and filing multiple pleadings that falsely blamed the government for the leaks. Ellerman also attempted to shift blame to Conte and remained silent while Chronicle reporters faced contempt charges due to Ellerman’s misconduct. He lied to FBI agents on multiple occasions, and it was only after he was confronted with the recording that exposed his lies that he admitted guilt. Ellerman’s actions struck a terrible blow to the integrity of the judicial system and the credibility of the legal profession—in sum, Ellerman’s past misconduct was reprehensible.

(Mike Frisch)

Bar Discipline & Process | Permalink


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