Posted on 01/28/2004 2:35:11 PM PST by Cubs Fan
MEMO TO THE FILE
January 22, 2004
From Ken Selvig
RE: Release of letters from attorney for Rush Limbaugh in response to a public records request
We have a received a public records request from Peter Franceschina of the Sun Sentinel for, among other things any correspondence to or from Roy Black and his law firm. Mr. Black currently represents Mr. Limbaugh in connection with an ongoing investigation.
Yesterday by telephone I spoke with Pat Gleason, the AG's most knowledgeable person on the Public Records Law. I did not tell her the particular case I was calling about. The question posed was whether there is an exception to the Public Record's Law that would allow us to refuse to disclose a letter from an attorney offering to plead guilty in a case that is under investigation but not yet filed. It is my opinion that there is no exception to the law that will allow us to withhold the letter. Ms. Gleason agreed with my position. She recommended and I agreed, that we should consult the Florida Bar for an opinion on whether the release of the attorneys letter would possibly raise an issue under the Rules of Professional Responsibility (RPC).
This morning, Barry spoke with Barbara Moore of the Florida Bar about the issue. Ms. Moore's opinion is that the Florida Public records Law takes precedence over any possible issues raised by the RPC. She said that there is an ethical obligation to follow the requirements of the law and that it would be unethical not to disclose the letter unless there is an applicable exception. I agree.
Therefore , we will comply with the request to disclose letters received from or sent to Mr. Black and his law firm.
Dear Mr. Selvig (Assistant State Attorney):
Thank you for your January 26, 2004 e-mail regarding our earlier conversation concerning the authority of the State Attorney to release a letter concerning plea offers in a pending criminal investigation. Your attempt to clarify that the decision to release the letters in question was made by your office is acknowledged. However, I am concerned that your memorandum to the file and the subsequent e-mail summarize only a portion of our conversation and omit critical parts of our discussion.
Specifically, I note that your records of this matter do not reflect that when you telephoned me you Indicated it seemed difficult to believe that plea negotiation letters could be releasable prior to trial. While we both agreed that we were unaware of any applicable statutory exemption, we also discussed the possibility that a court might refuse to authorize release based on constitutional concerns. For this reason, I recommended that in addition to making counsel from the Florida Bar as to any ethical concerns about releasing such materials, it was appropriate to notify defense counsel of the public records request and consider whether a Judicial resolution was advisable.
Both your file memorandum and e-mail emphasize that you did not tell me who the defendant was in this situation. However, that should not and cannot matter. Over the years, I have had many conversations with assistant state attorneys about pressing public records issues These conversations have been candid and in my view have helped the state to resolve public records issues and focus on the upcoming trial, In this case. however, it seems to me that the purpose in contacting me about this issue may not have been to obtain impartial advice on an open government issue, but rather to use a part of our conversation to justify your office's decision that the documents should be released. This is disappointing to me personally and professionally.
Sincerely,
Patricia R. Gleason
General Counsel
To Barbara B. Moore From Barry Cusher
INQUIRY
Facts: Caller's office received a public records request in Rush Limbaugh case. File includes letters from atty in SAO to Roy Black, defense counsel. Checked with AG's office and AG says the files are public records except that there are 2 letters which include plea negotiations which are not normally to be revealed so may or may not be public record. AG said to call ethics dept.
Question: guidance
Answer: Can't provide legal advice or interpret public record statute. All info in file is confidential as to his client, the state, under 4-1.6. Once legally compelled to provide info, it becomes a question of law, whether a/c privilege or public records. If client, state, only agrees to reveal what they are required to under public records law, caller must determine what is legally required and what is not. If unsure, may need to ask court to determine it for them. See 92-5 generally on confidentiality vs. privilege. How legal issues of public record statutes factor in is beyond an ethics opinion.
Rush mentioned an article from intellectualconservative.com on Tuesday's show. It was a story by Brian Wise about John F'n Kerry's war record and alluded to an incident that happened to Kerry that sounded alot like an incident that Bob Kerrey had admitted to.
Rush had stated on the show that he was going to fact check the article (also stated this on his website last night). Did not hear all of his show today; did he mention it?
Also checked itellectualconservative.com yesterday and today and could not find the article in question....
People who are in constant pain are very underserved by the medical profession, as a rule. I happen to be allergic to almost every treatment the docs want to try on me. They just shake their heads and say, poor you.
I went to intellectualconservative.com yesterday at the time Rush was reading Wise's article. It was on that website, but I was almost certain that Wise had mixed up John F'n Kerry and Bob Kerrey, a rather startling mix-up.
Guess they've since pulled the article.
I e-mailed Rush today about it; if I hear from him, will let you all know.
On the letter, Roy Black plainly states in bold type that "this letter is being sent as part of settlement discussions and thereby confidential pursuant to FRCP 3.172(h) and F.S. 90.408" (see http://www.thesmokinggun.com/graphics/art3/rushletters1.gif)
By following the links above and those provided by Cubs Fan, you will see that both references describe the inadmissibility of plea negotiations as an admission of guilt. For example, Florida Statutes 90.408:
90.408 Compromise and offers to compromise.—Evidence of an offer to compromise a claim which was disputed as to validity or amount, as well as any relevant conduct or statements made in negotiations concerning a compromise, is inadmissible to prove liability or absence of liability for the claim or its value.and Florida Rules of Criminal Procedure (2004) FRCP 3.172(h)
(h) Evidence. Except as otherwise provided in this rule, evidence of an offer or a plea of guilty or nolo contendere, later withdrawn, or of statements made in connection therewith, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.So I take it [I am not a lawyer, I didn't even sleep at a Holiday Inn last night] Atty. Black's position is that since the evidence is inadmissible, it is therefore confidential. I suppose there is case law to back that up. However, even if that isn't true, the fact that the State Attorney's Office (SAO) didn't bring that up in discussions with the Bar Ass'n. and the AG's Office seems like a major omission.
So what is the SAO's position on this, "We're not mean, we're just stupid" maybe?
No, you didn't.
Landmark was looking for correspondence between the media and the State's attorneys office, not not correspondence in furtherence of settlement between the attorneys involved. Two completely different animals.
A conservative nonprofit law firm filed a request Thursday with Palm Beach County State Attorney Barry Krischer seeking any records of his staff's communications with the media relating to his office's investigation into Rush Limbaugh's prescription drug use.
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