20 Boxes of Evidence
The Department of Commerce claims that it gave the Utah Attorney General's Office sufficient evidence to prosecute alleged Ponziist Rick Koerber. To the contrary, the AG's Office said that it did not receive evidence to support a prosecution. Commerce took its evidence to federal prosecutors, who moved forward and indicted Koerber. So, how much evidence did Commerce collect?
Over 20 boxes.
That big number, of course, is silent as to the contents and quality of the evidence. Maybe it was great stuff. Maybe it was pages from the phone book. The amount of evidence doesn't tell us anything. But, coupling the volume of evidence with the fact that it was sufficient for the feds to secure an indictment does suggest that the discrepancy of the 2 agencies' stories needs to be addressed.
To more rapidly get to the bottom of whatever is going on between Commerce and the AG's Office, I think that Commerce (which would mean the Governor's Office on something like this) should waive the attorney-client privilege on as many of the Koerber and (the separate) Mentoring of America documents as possible. Privilege will need to be retained for some documents, since free-flowing dialogue between client and counsel needs to happen, such as sensitive information regarding case strategy. But, since these are two agencies that operate for the good of the public, privilege should not be retained, I would think, for many of the documents (e.g., emails) that simply lay out why one agency wanted to move forward with prosecution and the other agency refused.
It seems that the attorney and client were not on the same page. The client wanted the cases to move forward criminally. The attorney refused. Because the attorney effectively worked against the client's desires, by closing the path to state criminal prosecution, this seems to be a case where the attorney and client were at cross purposes. Therefore, claim of privilege seems to be in the interest of the attorney, not the client. And, of course, the privilege belongs to the client, not the attorney. Where the client is saying it produced evidence and the attorney is saying the client did not, the only way for the client to prove its veracity is to show the evidence, emails, etc.; exercise of the privilege prevents such a showing. Thus, claim of privilege works against the client, and that's not what evidentiary privileges are about.
I don't mean to suggest that this is simple. Waiving the privilege in this case could have broader implications to the relationship between state agencies and the Attorney General's Office. That needs to be considered. But, I don't see it. As an attorney, I realize that I can never divulge what a client and I discuss but that the client can divulge everything. That's how the privilege works. It's one way. It protects the client, not the attorney.
If Utah has a problem getting after bad actors and fraud because of something going on between 2 agencies or something going on in one of those agencies, that needs to be addressed. The Executive needs to take steps to ferret out the problem. If it refuses, the Legislative branch should look into the matter.
Over 20 boxes.
That big number, of course, is silent as to the contents and quality of the evidence. Maybe it was great stuff. Maybe it was pages from the phone book. The amount of evidence doesn't tell us anything. But, coupling the volume of evidence with the fact that it was sufficient for the feds to secure an indictment does suggest that the discrepancy of the 2 agencies' stories needs to be addressed.
To more rapidly get to the bottom of whatever is going on between Commerce and the AG's Office, I think that Commerce (which would mean the Governor's Office on something like this) should waive the attorney-client privilege on as many of the Koerber and (the separate) Mentoring of America documents as possible. Privilege will need to be retained for some documents, since free-flowing dialogue between client and counsel needs to happen, such as sensitive information regarding case strategy. But, since these are two agencies that operate for the good of the public, privilege should not be retained, I would think, for many of the documents (e.g., emails) that simply lay out why one agency wanted to move forward with prosecution and the other agency refused.
It seems that the attorney and client were not on the same page. The client wanted the cases to move forward criminally. The attorney refused. Because the attorney effectively worked against the client's desires, by closing the path to state criminal prosecution, this seems to be a case where the attorney and client were at cross purposes. Therefore, claim of privilege seems to be in the interest of the attorney, not the client. And, of course, the privilege belongs to the client, not the attorney. Where the client is saying it produced evidence and the attorney is saying the client did not, the only way for the client to prove its veracity is to show the evidence, emails, etc.; exercise of the privilege prevents such a showing. Thus, claim of privilege works against the client, and that's not what evidentiary privileges are about.
I don't mean to suggest that this is simple. Waiving the privilege in this case could have broader implications to the relationship between state agencies and the Attorney General's Office. That needs to be considered. But, I don't see it. As an attorney, I realize that I can never divulge what a client and I discuss but that the client can divulge everything. That's how the privilege works. It's one way. It protects the client, not the attorney.
If Utah has a problem getting after bad actors and fraud because of something going on between 2 agencies or something going on in one of those agencies, that needs to be addressed. The Executive needs to take steps to ferret out the problem. If it refuses, the Legislative branch should look into the matter.
posted by steve u. at 7/10/2009
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11 Comments:
Anon.,
The client would disclose the conversations, not the attorney.
Here, the client is a public agency. The attorney is throwing the client under the bus (stating that the client didn't produce evidence), but then the attorney is arguing that the attorney-client privilege prevents the client from disclosing information to show that it did produce evidence.
The privilege is a shield for the client, not a weapon for the attorney.
As you said, this seems not to be a simple solution for a lawyer. I don't have the experience or education that you do, but I'd still want a lawyer who kept my secrets. I'd want to know that I could trust her.
Why doesn't the legislature do something about the audit? Carl Wimmer made it public first and has spoken out. Why won't the rest of you at least listen to his piercing questions about the audit? I know that senators and representatives only get paid few thousand dollars a year and get free health care, so that means that you have to have "real" jobs. That's why it is important to have elected representatives like Carl Wimmer who are not lawyers that have paying clients like banks and securities dealers.
Apologies, if I gave the impression that we didn't take action in response to the audit. Along with internal changes that Commerce/Securities made, the Legislature passed HB 78, to respond to issues raised in the audit and raised elsewhere.
Unless you have seen with your own eyes the more than 20 boxes of evidence, I would be careful about alleging that so-called fact when the AG has said none was ever received by his office. Since you're in the legislature, do an audit and find out who is telling the truth. As it stands, this dispute between the AG and the Department of Consumer Protection is an embarrassment to the state of Utah. Your blog is feeding the frenzy when - as a statesman - you should be taking action and not simply chattering away on half truths and innuendo.
It simply is a fact that 20 boxes of evidence were collected by Commerce and its divisions and turned over to the feds. Solid facts don't feed frenzies. Facts lead to answers and resolution.
Also of interest to the question of how much evidence was presented and how good it was: the standard of proof that would have applied in a civil action by the State would have been a much lower standard than the criminal standard the feds are pursuing.
Steve,
In my experience the Feds don't bring charges unless they have a very solid case. Of course it is for the jury to decide but it is bizarre that the AG simply refused to investigate.
Sounds like the fox is guarding the hen house.
Senator,
First, thanks for this post. It’s nice to have someone in government who actually seems interested in finding out the truth and presenting the facts. You’re doing a great public service with the last two blog entries.
Second, do you think the state will ever file charges against Rick Koerber regardless of how the Feds case turns out? Or would that pose a problem seeing how they declined to prosecute the first time around? Could the AG reverse his decision?
SBA
Steve,
Having twenty boxes of consumer complaints isn't evidence. BTW you aren't just going after the Attorney General you are going after every one of his attorney's who worked on this case. Those attorney's are the ones saying that the state dept. didn't give them evidence.
BTW why the hatred for Shurtleff all of a sudden- I'm pretty sure he's helped you every time you've run for office- so way to throw a friend under the bus! Is this because of your new found love for Bob Bennett? Careful what if Bennett doesn't get re-elected then you'll be out of good graces with Hatch and Shurtleff. You are condemning an office and a man, when you have no proof.
And if you do have proof- why haven't we seen it? This is innuendo all the way.
Austin in Huntsville.
Read it again, Austin. I present facts and raise valid questions. You are the only one who's talking about going after people. And on that point, please clarify. Are you saying if someone helps with a campaign that person is immune from scrutiny? Interesting.
Austin from Huntsville must be the staff attorney that forgot to look in the 20 boxes of evidence.
This seems like issue that is bigger than Mark Shurtleff. He was the one who brought the attention to the "pay to play" problem with the Attorney General and campaign finance laws. If it wasn't this corrupt A.G. it could have been the next one.
What is a solution to this. I would hate for the state to go down the Mcain, Feingold road but with an office that decides who gets prosecuted and who doesn't something has to be done.
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