News

'Calculated Deception'

Humboldt attorneys face ethics charges in right-to-die case

By

3 comments
SHUTTERSTOCK
  • Shutterstock

The State Bar is seeking to have two county attorneys' law licenses suspended for at least a year, accusing them of knowingly misleading the court by concealing evidence in a local right-to-die case that led to a $1 million settlement.

A State Bar trial for Blair Angus, who retired in 2019 after being promoted to assistant county counsel, and Deputy County Counsel Natalie Duke is set for this summer.

Both face serious ethics violations charges, including moral turpitude, for allegedly using "calculated deception" to move forward legal actions brought by Adult Protective Services and the Public Guardian's Office against Carlotta couple Dick and Judy Magney to wrest control of Dick Magney's end-of-life decisions against their will, and in defiance of his doctor's treatment plan and his advance directive.

Angus and Duke deny any wrongdoing, stating in court documents that they "plainly acted with due diligence" and their actions were based on information presented to them by the agencies, implying — albeit cryptically — they were not privy to some of the evidence they stand accused of withholding.

Humboldt County Counsel Jefferson Billingsley, Duke's supervisor, stated in a one-sentence email to the Journal that he did not "wish to comment on the state's proceedings." Attorneys for Duke and Angus did not respond to email requests for comment.

The county of Humboldt has already paid $1 million to settle a civil rights lawsuit stemming from the APS proceeding, although without admitting any liability by the named employees, including Angus and Duke, whose actions were described as "profoundly disturbing" in a withering appellate court opinion ("Profoundly Disturbing," Jan. 12, 2017).

"We cannot subscribe to a scenario where a governmental agency acts to overturn the provisions of a valid advance directive by presenting the court with an incomplete discussion of the relevant law and a misleading compendium of incompetent and inadmissible evidence and, worse, by withholding critical evidence about the clinical assessments and opinions of the primary physician because that evidence does not accord with the agency's own agenda," the opinion on the APS case states.

"No reasonable person, let alone a governmental agency, would have pursued such a course."

That course led to a hearing in May of 2015, in which a frail and emaciated Dick Magney, at times wincing in pain, testified before the judge who would decide whether the county Public Guardian's Office should be given full legal authority over all aspects of his life.

By that time, the U.S. Navy veteran and his wife Judy had already been through a similar action with Adult Protective Services, which — without notice — had taken control of Dick Magney's medical decisions shortly after he was admitted to St. Joseph Hospital three months earlier.

Judy and Dick Magney around the time they met in 1992. - PHOTO COURTESY OF JUDY MAGNEY
  • Photo courtesy of Judy Magney
  • Judy and Dick Magney around the time they met in 1992.

The 73-year-old Carlotta resident was by all accounts in dire condition on arrival, suffering from a series of life-threatening ailments — including an infected heart valve — chronic pain and desperately poor hygiene.

While the Magneys opted to pursue palliative care in consultation with a team of doctors and in accordance with Dick Magney's advance health care directive, APS placed him back on antibiotics in a bid to keep him alive while investigating a possible neglect case against his wife of 23 years.

After the APS case was withdrawn April 2, the Public Guardian's Office stepped in, procuring temporary oversight of his treatment without informing his wife, and moved Dick Magney into a skilled nursing facility before the May hearing.

Meanwhile, an independent investigator appointed by the court recommended against the agency's petition for a permanent conservatorship, which would have made Dick Magney a ward of the state, penning a pointedly worded report that stated his rights to have his end-of-life care wishes followed had "been seriously abridged" by the county's actions.

"Now the remaining days of his life are being spent in a legal battle over treatment he does not want to receive," the investigator wrote. "Mr. Magney is dying, and having to go through this legal battle while going through the death process is inhumane, to say the least. Additionally, for Mrs. Magney, watching her husband die, having to defend his wishes in court is appalling."

Despite that assessment, the Public Guardian's Office moved forward with the case.

So, on the morning of May 21, 2015, Dick Magney sat before a judge, without his dentures or his glasses, in a room at the skilled nursing facility where he'd been placed by the Public Guardian's Office.

For nearly an hour, he answered attorneys' questions about everything from his favorite movie and what he like to eat to whether he understood what it meant to be place in a conservatorship.

The self-described "stubborn Swede" — who arrived in the United States by ship when he was 5 — talked about how much he loved his wife and his anger at the allegations being levied against her, describing her as "the best" and saying he knew for certain "that God meant us two to be together."

The former long-haul trucker also described how he'd been living with debilitating arthritis and severe back problems for years — taking pain medication that sometimes clouded his short-term memory. He also talked about the colon issues that caused him to spend long bouts in the bathroom, which resulted in the infected sores that sent him to the hospital, triggering the investigation into his care that led him to the hearing that day.

Of that, Dick Magney said, "I never dreamed it was going to come to this, you know, where all these important people are here and I'm by myself."

What would upset him, Dick Magney told the judge, was if "the people who were trying to take over" were allowed to make decisions about where he lived and tell him and his wife what to do.

He said he had come to terms with the fact his life was coming to an end.

"I'm not going to be around too much longer anyway, so I'm expecting it, you know," Dick Magney said, having mentioned earlier that he and his wife were born-again Christians. " ... I learned to live with the circumstance, you know, and I know where I'm going after I die, so I'm pretty relaxed about it."

The judge denied the Public Guardian's Office petition the next day.

Dick Magney died five months later, not living long enough to see the appellate court hand down its scathing rebuke of the county's actions in his APS case or the county settle the civil rights action brought by his wife. Judy Magney also filed a complaint with the State Bar, which issued a notice of charges against Angus and Duke in November of 2020.

The Magneys' case, ensuing settlement and now the pending State Bar charges against Angus and Duke are just the latest in a string of controversies that have ensnared the Humboldt County Counsel's Office in recent years.

Take, for instance, the short but turbulent tenure of David Marcus, who abruptly resigned as the county's public defender after nine months on the job, reportedly packing up his belongings and walking out the door without a word to anyone in his office.

From day one, there were problems, with a civil lawsuit challenging whether Marcus met minimum qualifications for the job shortly after his appointment in February of 2017 ("'Nibs' and 'The Taz,'" Aug. 10, 2017).

The county went to bat for Marcus during the litigation, with then County Counsel Jefferey Blanck defending him in court and the board of supervisors standing behind their selection.

Dick Magney - PHOTO COURTESY OF JUDY MAGNEY
  • Photo courtesy of Judy Magney
  • Dick Magney

Meanwhile, every public defender in his office sent a letter to the supervisors alleging Marcus was incompetent and unqualified, with many leaving soon afterward. Shortly after a visiting judge cleared the case to go to trial, the board of supervisors met behind closed doors in a Thanksgiving week special session and agreed to a $25,000 severance agreement with Marcus without first discussing the item in an open meeting, which is required by state government transparency laws.

That action took place under the watch of Blanck, who would call out the board of supervisors two years later for violating the same state open meeting law — the Ralph M. Brown Act — when he was placed on administrative leave in March of 2019.

A month later he filed a claim for damages against county, alleging he was retaliated against for voicing concerns about an outside law firm's contract, which Blanck believed has not been properly executed.

More litigation would follow, including a civil lawsuit against two fellow top administrators, an outside attorney and her Bay Area-based law firm, which claimed they conspired against Blanck when he tried to expose excessive billing practices.

According to Blanck, then Human Resources Director Lisa DeMatteo regularly bypassed the county counsel's office on routine matters, sending them instead to a partner at the firm.

He gave as examples a more than $6,000 bill "to draft a simple termination letter" and $8,000 paid to handle an arbitration issue "over a $300 dispute."

Soon afterward, while Blanck was on leave, the board of supervisors retroactively approved $1.4 million in legal payments to the firm Liebert Cassidy Whitmore dating back to 2008.

A year and a half later, the supervisors paid Blanck $600,000 to settle his lawsuits in exchange for his resignation.

But before his split with the county, Blanck contributed his own share of questionable decision-making.

Excerpt from a 2016 court document. - FILE
  • File
  • Excerpt from a 2016 court document.

That includes the county counsel's decision in 2016 to challenge a state Attorney's General Office subpoena for records during an investigation into the county's handling of child abuse and neglect reports. The dispute eventually ended with the Department of Health and Human Services and the Humboldt County Sheriff's Office agreeing to institute a series of policies and practices related to child welfare services.

Then, there's the Measure S debacle, which saw the board of supervisors modify a voter-approved tax measure's language in 2017 to make it easier to implement by imposing the tax on landowners rather than cultivators and basing it on the permitted square footage rather than the actual cultivation area, while county counsel insisted the changes didn't materially change what voters had considered at the polls.

Earlier this year, an appeals court found the board overstepped when it "impermissibly broadened the scope" of the measure and the county is currently in the processes of reviewing of requests for refunds, potentially on the hook to pay back millions in previously collected revenue.

Now the county is footing Duke's legal bills in the State Bar case.

In a predictable pattern, the board of supervisors approved an agreement with her attorney's office — Hansen Kohls Sommer and Jacob — during a July 2020 closed session in another apparent violation of the Brown Act.

The county is not precluded from paying for Duke's attorneys, according to attorney Kelly Aviles, whose office serves as general counsel for the nonprofit Californians Aware, which promotes government transparency. But Aviles said the situation would require the item be noticed with Duke's name and for the board to decide whether to cover the costs of her legal defense in open session.

The scenario, addressed in Government Code 995.6, would also require a government agency to make certain findings of fact to approve such an expenditure of public funds. Specifically, the board would have had to find that the State Bar's charges against Duke stemmed from an "act or omission" committed within the scope of her work as deputy county counsel, that she "acted, or failed to act, in good faith," and that paying for her defense would be in the best interests of the county.

None of that occurred.

Billingsley, however, states in an email that the action was "within the authorizations of the Brown Act" but does not explain why or respond to questions about the county's decision to pay for Duke's attorneys. He did say she is not currently involved in any county litigation as the State Bar case proceeds.

Neither Billingsley nor the county's spokesperson answered an email question about whether similar actions have been taken to cover Angus' defense.

Meanwhile, Duke and Angus are scheduled to go to trial in August, with much of the State Bar's case — and their defense — linked back to one person: former county public health nurse Heather Ringwald, who was sent by APS to investigate calls made from mandated reporters about Dick Magney's condition.

Over the course of several days in March of 2015, Ringwald spoke with Dick Magney, whom she reported to be confused, as well as his treating physician, Stephanie Phan, who told her that she agreed with the course of palliative care.

Judy Magney also presented Ringwald with a copy of her husband's written advance care directive, which had been drawn up by an attorney a few years before his hospitalization.

"I want to live my life with dignity and for my loved ones to have pleasant memories of my final days," his instructions read. "Thus, I wish to be allowed to die without prolonging my death with medical treatment ... that will not benefit me."

In the event he was unable to make decisions for himself, Judy Magney was authorized to do so, with his sister Anita Reed named as a surrogate.

While the county has asserted there were concerns Dick Magney had been neglected prior to his hospitalization and questions about whether Judy Magney was acting in accordance with his wishes, no one called Reed — who would have been legally empowered to make decisions in Judy Magney's stead — and later testified in his conservatorship case that she supported her sister-in-law's decisions.

Instead, on March 12, 2015, Ringwald and her supervisor went to the county counsel's office with what Angus has described in State Bar court filings as "a directive" to seek the forced medication of Dick Magney, saying they needed more time to investigate his situation.

When county counsel filed the petition the next day, a Friday afternoon, there was no mention of Phan — the designated medical authority for Dick Magney under the Health Care Decisions Law — nor her findings that further treatment was futile.

Also not submitted were his medical records from St. Joseph Hospital.

The appellate court later described the APS filing as "appallingly inadequate" with "glaringly incompetent and inadmissible evidence" and "multiple levels of hearsay."

That included an assessment Ringwald obtained from Dick Magney's VA physician — who at the time had not seen him in months and was not involved in his hospital care — stating his condition was treatable but he might die over the weekend without medical intervention.

"In sum, Humboldt was not merely negligent in preparing its petition and request for an order compelling medical treatment under the Health Care Decisions Law; it knowingly and deliberately misrepresented both the law and the facts to the trial court," the opinion states. "We would find such conduct troubling in any case. In the instant context we find it profoundly disturbing."

The State Bar appears to agree.

Each of the counts in its case — four against Angus and eight against Duke — specifically cites, among other issues, their failure to not only to advise the judges presented with the APS and conservatorship petitions about Phan, but also to include her medical opinion.

"Respondents will likely argue that their misconduct should be excused because they were acting under exigent circumstances," State Bar attorneys wrote in a pretrial statement. "However, this case is not about exigent circumstances, it is about calculated deception. And, even if there was an exception, there was nothing preventing the respondents from taking two crucial steps before filing: 1) contacting Dr. Phan, or any of the other physicians at St. Joseph's Hospital; and 2) contacting Anita Reed. They simply chose not to do so because they were intent on taking control over Mr. Magney's medical decisions away from him and Judith."

Angus and Duke, as the State Bar predicted, have cited such constraints, asserting in their pretrial statement that "it may not be understated that Mr. Magney's matter was presented to county counsel as one of life and death in an extremely compressed time frame."

And, as far as Phan's role and her evaluation of Dick Magney's condition, Angus and Duke claim a fuller picture only "came to the county counsel's attention" after the emergency APS petition had been granted and they had relied on the information presented to them, which they say they had no reason to question.

But that doesn't address why Phan was not mentioned in the Public Guardian Office's conservatorship filing, which came a few days after a declaration from the doctor, outlining her decision-making, was filed with the court in the APS case.

Ringwald would later admit in testimony, according to the appellate court, that she "personally disagreed" with Phan and she and her supervisors had decided to "challenge" the doctor's clinical assessment of Dick Magney's condition and his mental capacity to choose palliative care.

Meanwhile, Ringwald has declined to provide information to the State Bar and, through her attorney, contends that the county of Humboldt controls the attorney-client privilege regarding her conversations with county counsel about her investigation and the APS petition.

Angus has made similar claims while seeking to dismiss the case against her — saying she has evidence that could clear her name but is legally prohibited from providing it to the court. In a decision denying Angus' motion in April, State Bar Judge Phong Wang said Angus seemed to have no qualms about sharing such information during the State Bar's investigation, when she submitted a letter discussing her defense in December of 2016 that included 25 exhibits for a total of nearly 400 pages.

Among the documents was a March 13, 2015 email — sent the day the APS petition was filed — from Ringwald to Angus discussing the investigation.

"Angus' letter did not mention that she was unable to offer a comprehensive explanation due to any concern or privilege," Wang writes. "Nor did she assert that the information contained in the letter and attachments are protected under any claim of confidentially or privilege. The first page of the letter also bore the official seal of the county of Humboldt, written on the letterhead of 'County Counsel' for the 'County of Humboldt.'"

That, Wang said, appeared to denote a waiver of any privilege.

Angus and Duke's attorneys, however, have indicated they intend to bring the motion back.

David Levine, a professor at University of California Hastings College of the Law, described the State Bar's case against Angus and Duke as complicated and unusual, saying there are a number of issues that still need to be hashed out before trial.

The issue of attorney-client privilege is potentially complex, Levine says, though he feels it could likely be sorted out by having a neutral third-party review documents before they were presented in court to weed out any that seem to cross the threshold of what should legitimately be protected.

But Levine says there would also be nothing to prevent the county — the ultimate owner of any attorney-client privilege in its county counsel's office — from waiving its rights to secrecy in this case.

"We're not reviewing the conduct of the entity of the county," he says. "It's a narrowly focused proceeding on whether these attorneys violated their professional obligation as licensed attorneys for the state of California."

Whether that's going to happen is unclear, but the board of supervisors did hire outside law firm Prentice Long during a May 25 closed session — with a retroactive start date of May 17 — to advise the county in the State Bar matter.

At the end of the day, Levine says the fate of the State Bar's case against Angus and Duke appears to rest on two simple, yet complicated questions: "What did they know and when did they know it?"

Kimberly Wear is the digital editor and a staff writer at the Journal. Reach her at 442-1400, extension 323, or kim@northcoastjournal.com. Follow her on Twitter @kimberly_wear.

Tags

Comments (3)

Showing 1-3 of 3

Add a comment
 

Add a comment