February 2023 Professional Paragon - Justice Richard D. Fybel’s Life Remains a Guiding Light

by The Honorable Kathleen E. O’Leary and Dean J. Zipser

On December 2, 2022, the world and the Orange County legal community lost one of its bright lights. Surrounded by his loving family, Justice Richard D. Fybel passed away peacefully after a courageous battle with an aggressive form of cancer.

Justice Fybel was a loving husband, a wonderful father, a caring grandfather, a treasured friend, an extraordinary colleague, a generous mentor, and a brilliant legal mind. He will be greatly missed.

After graduating from UCLA School of Law Order of the Coif, Justice Fybel began a distinguished legal career at Nossaman, Waters, Scott, Krueger & Riordan in 1971. In 1981, he was recruited to Morrison & Foerster (“MoFo”) where he later served a four-year term as Managing Partner of the Los Angeles office. During his tenure as Managing Partner, the office grew to 138 lawyers and took a decided turn toward increasing representation among women and persons of color. He then became the firmwide Managing Partner for Attorney Personnel and a member of the five-person group who “ran” the firm. In 1997, Justice Fybel moved to the Orange County office of MoFo, becoming the senior litigation partner there.

Handling some of the firm’s most complex cases, Justice Fybel had a superb career as a litigator and trial lawyer. He was always prepared, thorough, and extremely well-organized. But more than any case or trial victory, he took pride as a lawyer in the training and development of younger lawyers—a value and practice he brought with him to the bench. While at MoFo, he actively promoted the careers of several women who became partners.

Justice Fybel also had the idea and led the negotiations to bring to MoFo the Hufstedler law firm. He took immense pride in being a colleague of the legendary Seth Hufstedler. He worked closely with Judge Shirley Hufstedler (9th Circuit Judge and first U.S. Secretary of Education), who swore him in as a Superior Court Judge and testified for him at his Court of Appeal hearing.

Justice Fybel’s judicial career began in April 2000 when he was appointed to the Orange County Superior Court. Then, in February 2002, he was appointed as an Associate Justice of the Court of Appeal, Fourth District, Division Three. On the appellate court, he made significant contributions to the development of California law, the pursuit of justice, and the advancement of judicial ethics. His fellow justices described him as the gold standard when it came to collegiality.

A noted expert on judicial ethics, Justice Fybel chaired the California Supreme Court’s Advisory Committee on the Code of Judicial Ethics from 2004 until his retirement in 2022. As chair, he successfully navigated the elimination of the Code’s controversial exception to the prohibition against judicial membership in discriminatory organizations. Judges cannot belong to an organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation, but there had been an exception for nonprofit youth organizations. Justice Fybel’s work resulted in the elimination of this exception. Justice Fybel co-wrote the Fourth edition of the California Judicial Conduct Handbook, the 1,000-page treatise on judicial ethics used by virtually every judge in California. He was the recipient of many, many awards, but one he particularly cherished was the Franklin G. West Award presented by the Orange County Bar Association.

But there was so much more to Justice Fybel than his achievements in his legal career. His legacy extends far beyond his judicial opinions. To begin with, he leaves scores of attorneys he mentored over the decades—both while he was an attorney and as a judicial officer. In the twenty years he served on the appellate court, Justice Fybel worked with the same three attorneys in his chambers. Their loyalty to him and his judicial philosophy was truly exceptional. Staff throughout the court appreciated Justice Fybel’s friendly and caring ways. He was greatly missed by all at the court when he retired, but not forgotten. And Justice Fybel’s guidance didn’t end when the professional relationship did; his mentorship continued. He passed on his set of values—be kind, work hard, and be fair among them—to many. They will stay with and guide us in the future, as they have in the past.

Justice Fybel was an active member and served as president of his synagogue. He and his wife of fifty-four years, Susan, were supporters and members of the Board of Advisors of the Rodgers Center for Holocaust Education at Chapman University. The son of Jewish immigrants who escaped the Holocaust for America, Justice Fybel wrote, taught, and lectured on the lack of ethics by judges and lawyers in Nazi Germany and on the Nuremberg Trials. His writings were published in both a book (National Security, Civil Liberties and the War on Terror (2011)) and several articles. For many years, Justice Fybel co-taught a seminar at Chapman (Fowler) law school, “The Holocaust, Genocide and the Law.”

When he was not working, Justice Fybel had a number of passions and interests. As everyone who knew him can attest, Justice Fybel was a die-hard, lifetime, baseball and Dodgers fan; his office was adorned with Dodgers memorabilia that accompanied his scholarly items. As a result of a charity auction event, he met and struck up a friendship with Dodger great Maury Wills, who attended Justice Fybel’s enrobing as a Superior Court Judge. (Next to then-Judge Fybel, he probably drew the biggest crowd at the event.) He also had the pleasure and cherished the opportunity to meet Vin Scully and Tommy Lasorda. And, soon before his passing, he was able to go on the field and spend meaningful time with Dodger manager Dave Roberts and other players.

Not surprisingly, Justice Fybel carried his love for baseball, coupled with his incredible work effort, to his fantasy baseball team. Dean Zipser freely admits that Justice Fybel was the brains of the operation and Dean’s role during their 30+-year partnership was not to mess things up when the Justice might be traveling and unable to personally submit the team’s lineup. Just like he was as a lawyer, he was always thinking several steps ahead—whom to play over the next few weeks and why.

Most of all, Justice Fybel valued and adored spending time with his family. He was immensely proud of his two children and cherished every minute with his four grandchildren. Any time the subject of his grandchildren would come up in conversation, the Justice would smile with a twinkle in his eyes. He was blessed to spend considerable time with them, and they developed extraordinary close relationships.

Justice Fybel believed he led a charmed and blessed life, and he was grateful to all the people who helped him be in a position to make contributions in the areas he believed were important. Berkeley Law Dean Erwin Chemerinsky once remarked that if you were to look up the word “mensch” in a dictionary, you should see a photo of Justice Fybel. The Southern California Appellate News blog was aware of the comment and posted a photograph of Justice Fybel with the caption: “MENSCH Yiddish: מענטש mentsh: A particularly good person, full of integrity and honor, with the noble qualities one would hope for in a dear friend or trusted colleague; a gentleman. Someone like Justice Fybel.”

Justice Fybel is survived by his wife Susan, daughter Stephanie, son Dan, daughter-in-law Garland, and four grandchildren who were the greatest joys of his life. May his memory be a blessing.

The Honorable Kathleen E. O’Leary is Presiding Justice at the California Court of Appeal, Fourth District, Division Three. She can be reached about this column through the Editor-in-Chief.
Dean J. Zipser is a founding partner of Umberg Zipser LLP and was the 2005 OCBA President. Dean was a partner of Justice Fybel at MoFo from 1988 until 2000, and his fantasy baseball partner for over thirty years. He can be reached at DZipser@umbergzipser.com.