Posted on 02/03/2004 3:28:55 PM PST by longtermmemmory
January 28, 2004
The Florida Bar Department of Lawyer Regulation 651 East Jefferson Street Tallahassee, Florida 32399-2300
Re: Barry Krischer, Palm Beach County State’s Attorney Ken Selvig, Palm Beach County Assistant State’s Attorney
Dear Sir or Madam:
This is a complaint pursuant to the Florida Rules of Professional Conduct, concerning the conduct of Mr. Barry Krischer and Mr. Ken Selvig, of the Palm Beach County State’s Attorney’s Office (“SAO”).
On January 22, 2004, the Sun Sentinel reported that Palm Beach County State’s Attorney Krischer’s office released to it letters between attorneys representing Rush Limbaugh and the SAO. (Exhibit 1, Sun Sentinel, “Pro, con Limbaugh e-mails released,” January 24, 2004.) The SAO also released a January 22, 2004, memorandum to file purporting to have made the release of these letters based on ethics advice from the Florida Attorney General’s office and the Florida Bar. (Exhibit 2, Selvig “Memo to the File,” January 22, 2004.)
It is clear from public records obtained by Landmark Legal Foundation (“Landmark”) that Mr. Krischer and Mr. Selvig have misrepresented the advice provided them by both the Florida Bar and the Florida Attorney General’s office in direct violation of the Florida Rules of Professional Conduct. (Exhibit 3, January 22, 2004 Florida Bar Call Record; and Exhibit 4, January 28, 2004 Office of the Attorney General, General Counsel Gleason letter.) Landmark respectfully requests that the Florida Bar initiate a formal investigation into this matter and take appropriate disciplinary action where merited.
In response to a January 22, 2004, telephone inquiry to the Florida Bar’s ethics office regarding the release pursuant to a public records request of records, including letters between defense counsel and the SAO, Mr. Krischer’s office represented in its memorandum to file that the Bar told prosecutors it had an ethical obligation to release the letters. According to a Florida Bar “Call Record” of Krischer’s inquiry, however, the Bar did no such thing and Mr. Krischer’s assertion appears to be a fabrication. The call record states:
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. (Exhibit 3.)
Clearly, the call record does not state that the SAO had an “ethical obligation to release the letters.” In fact, it suggested that Krischer should consider seeking court intervention.
Moreover, in a January 28, 2004 letter, Patricia R. Gleason, General Counsel, Office of the Attorney General, declares that Mr. Krischer’s assistant, Ken Selvig, created an incomplete and misleading record of the Attorney General’s office’s advice on the matter. (Exhibit 4.) Ms. Gleason’s letter states, in relevant part:
... 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 seeking 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. ... [I]t 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.
Mr. Krischer’s and Mr. Selvig’s conduct, as characterized by Ms. Gleason’s January 28, 2004 letter and the Florida Bar’s contemporaneous call record, raise a number of issues. In particular:
Rule 4-8.4. MISCONDUCT
A lawyer shall not:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; …
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
(d) engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic;
Moreover, the rules provide for a heightened ethical standard for lawyers holding public office, who “assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role of attorney.”
The SAO’s “dishonesty, fraud, deceit, [and] misrepresentation” in creating a pretext for the release of the letters between defense counsel and the SAO is particularly troublesome. The SAO created a false record and, in fact, failed to follow the actual advice it received from the Florida Attorney General’s office and the Florida Bar – a direct and knowing assault on the integrity of the administration of justice -- which is a clear violation of
Rules 4-8.4(a), (c) and (d) (see above), but also Rules 4-4.1 and 4-3.6:
Rule 4-4.1. TRUTHFULNESS IN STATEMENTS TO OTHERS
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person.
Rule 4-3.6. TRIAL PUBLICITY
(a) Prejudicial Extrajudicial Statements Prohibited. A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding due to its creation of an imminent and substantial detrimental effect on that proceeding.
(b) Statements of Third Parties. A lawyer shall not counsel or assist another person to make such a statement. Counsel shall exercise reasonable care to prevent investigators, employees, or other persons assisting in or associated with a case from making extrajudicial statements that are prohibited under this rule.
Thank you for your attention to these serious matters. Under penalty of perjury, I declare the foregoing facts are true, correct and complete.
Sincerely,
Mark R. Levin President
Cc: Elizabeth Clark Tarbert
...only after they have been "tarred and feathered" and ridden around the town, a couple of time.
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