Tuesday, November 11, 2008
RANDY BRUNSON FLORIDA ELECTIONS COMMISSION CASE -- MOTION FILED TO DISQUALIFY BRUNSON'S LAWYER, MARK HERRON
Conflicted Tallahassee Powerlawyer MARK HERRON, Lawyer for Florida Democrats, Former Florida Ethics Commission Chair, Says "I CAN REPRESENT ANYONE I WANT," Wants to Represent St. Johns County Republican RANDY BRUNSON Before Florida Election Commission
RANDY BRUNSON, Airport Commission Member and Failed Republican Candidate for County Commission
BEFORE THE FLORIDA ELECTION COMMISSION
In re: RANDY BRUNSON
COMPLAINANT'S MOTION TO DISQUALIFY MARK HERRON
Complainant Ed Slavin respectfully moves for the Florida Election Commission to disqualify MARK HERRON as counsel for Respondent RANDY BRUNSON on the grounds of conflict of interest and appearance of impropriety.
1. Complainant is a member of the St. Johns County Democratic Committee (SJCDEC).
2. Respondent's lawyer, MARK HERRON, provided training for the St. Johns County DEC this year on election law.
3. MARK HERRON is the trusted lawyer for both the Florida and National Democratic Committees.
4. Respondent RANDY BRUNSON is a Republican who was running for County Commissioner in St. Johns County as a Republican.
5. The applicable Florida Bar Rule states in pertinent part:
Rule 4-1.7 Conflict of Interest: General rule
(a) Representing Adverse Interests.
A lawyer shall not represent a client if the representation of that client will be directly adverse to the interests of another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the lawyer's responsibilities to and relationship with the other client; and
(2) each client consents after consultation.
(b) Duty to Avoid Limitation on Independent Professional Judgment.
A lawyer shall not represent a client if the lawyer's exercise of independent professional judgment in the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person or by the lawyer's own interest, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation.
6. It would violate Rule 4-1.7 for HERRON to represent both Democrats and Republicans before the FEC and in particular for HERRON to St. Johns County Republican RANDY BRUNSON against a Complaint made by an SJCDEC member, after HERRON provided training on election laws for SJCDEC earlier this year.
7. Complainant does not consent to HERRON's representation of BRUNSON.
8. Contacted by telephone after the notice of the hearing, HERRON refused to disqualify himself, stating, "I can represent anyone I want."
9. Such is not the case. See Rule 4-1.7, supra.
10. MARK HERRON knows the confidences of Democrats statewide and in St. Johns County, having even conducted training in St. Johns County. Yet MARK HERRON stated, "I can represent anyone I want." Compare Rule 4-1.7, supra.
11. Under Florida Bar Rule 4-1.10 and administrative precedents, the Florida Elections Commission is empowered to disqualify lawyers from representing respondents where conflicts of interest exist.
12. Democratic lawyer MARK HERRON's proposed representation of Republican RANDY BRUNSON before FEC "tempts dishonor." See, e.g., United States v. Mississippi Valley Generating Co., 364 U.S. 520, 548 (1961), citing Matthew 6:24 -- "no [person] can serve two masters," holding that laws and rules preventing conflicts of interest is aimed "not only at dishonor but at conduct that tempts dishonor."
13. FEC is empowered to order disqualification of MARK HERRON . See, e.g., Berkman v. Coast Guard Academy, 97-CAA-2&9 (United States Department of Labor District Chief Administrative Law Judge David W. DiNardi, April 9, 1997 Order Granting Complainant's Motion to Disqualify), where lawyer's conduct was at issue); Hasan v. Nuclear Power Services, 86-ERA-24 (Hon. Alfred Lindeman, September 25, 1986 Decision on Motions to Disqualify Respondents' Counsel, for Default Judgment, and For Sanctions). United States v. Mississippi Valley Generating Co., Matthew 6:24; Clinard v. Blackwood, 46 S.W. 3d 177 (Tenn. 2001); Goss Graphics Systems, Inc. v. Man Roland Druckmaschlinen Aktiengesellschaft, 2000 U.S. Dist. LEXIS 181000 (N.D. (N.D. Iowa 2000) (disqualifying Kirkland & Ellis); Asyst Tech. Inc. v. Empek, Inc., 962 F.Supp. 1241 (N.D. Cal. 1997)(disqualifying Wilson, Sonsini, Goodrich & Rosati); New Jersey Blue Cross/Blue Shield v. Phillip Morris, Inc., 53 F.Supp. 2d 338, 347 (E.D.N.Y 1999) (disqualifying Winston & Strawn); Islander East Rental Program v. Ferguson, 917 F.Supp. 504, 506 (S.D.Tex. 1996) (disqualifying Fulbright & Jaworski); Shadow Traffic Network v. Superior Court. 29 Cal Rptr. 2d 693 (Ct. App. 1994) (disqualifying Latham & Watkins); USFL v. NFL, 605 F. Supp. 1448, 1544 (S.D.N.Y. 1985)(disqualifying Paul, Weiss, Rifkind, Wharton & Garrison).
14. Any doubts in the FEC members' minds should be resolved in favor of disqualification, to protect the public and Complainant from the confederacy of special interests represented by MARK HERRON's law firm and the "potential dishonor" of having MARK HERRON representing both Democrats and Republicans in contested actions before FEC. See, supra; see also Westinghouse Elec. Corp. v. Gulf Oil Corp. 588 F.2d 221, 225 (7th Cir. 1978); IBM v. Levin, 271, 283 (3d Cir. 1978); Hull v. Celanese Corp., 513 F.2d 568, 571 (2nd Cir. 1975); Cardinale v. Golinello, 42 N.Y.2d 288 (N.Y. App. 1977).
15. A motion to disqualify requires the FEC to balance the parties' rights. Ordinarily, a litigant should have a right to counsel of her choice. Powell v. Alabama, 287 U.S. 45, 53 (1932).
16. However, MARK HERRON's representation in this case presents the potential for divided lawyer loyalties, with the same lawyer who briefed St. Johns County Democrats on election law defending RANDY BRUNSON in a complaint filed by a member of the St. Johns County Democratic Committee. The purpose of ordering disqualification is to safeguard the FEC's integrity and avoid tainting litigation. See, e.g., USFL v. NFL, 605 F. Supp. 1448, 1544 (S.D.N.Y. 1985).
17. Continued misrepresentations by RANDY BRUNSON are likely to be promoted by his being represented by a former FEC Chair and lobbyist who represents the Florida Democratic Party and Democratic National Committee.
18. Continued representation could advance BRUNSON's concealment -- which has also embraced an apparently backdated lease -- and is contrary to our country's fundamental ideas of due process and fairness. See, e.g., Daniel Patrick Moynihan, SECRECY (1998). Disqualification is appropriate because the integrity of the adversarial process is at stake. Papanicolaou v. Chase Manhattan Bank, 720 F.Supp. 1080 (S.D.N.Y. 1989).
19. The representation of Respondent RANDY BRUNSON by MARK HERRON is troubling, and should be disapproved by the FEC, as MARK HERRON, a former FEC Chair apparently thinks he can represent "anyone [he] wants" to, e.g., both Republicans and Democrats at the same time before the same agency. See, e.g., Nicole G. Tell, "Representing Police Officers and Municipalities: A Conflict of Interest for Municipal Attorney in § 1983 Police Misconduct Suit," 65 Fordham L.R. 2825 (May 1997); R. David Donoghue, "Conflict of Interest: Concurrent Representation," 11 Geo. J. Legal Ethics 319 (Winter 1998); Debra Lynn Bassett, "Three's a Crowd: A Proposal to Abolish Joint Representation," 32 Rutgers L.J. 387 (Winter 2001).
20. MARK HERRON's role as a defense counsel violates the precept that "a [person] cannot serve two masters." See, e.g., United States v. Mississippi Valley Generating Co., 364 U.S. 520, 548 (1961), citing Matthew 6:24.
21. As the late Illinois Governor Adlai Stevenson once said, "as scarce as truth is, the supply seems greater than the demand." There is no positive effect of MARK HERRON's representation of both Demcrats and Republicans like RANDY BRUNSON. He must not be placed in a position to give Democrats advice about RANDY BRUNSON's confidences, and it would be unseemly for Democrats to have a lawyer Democrats cannot trust.
22. FEC must end this "unfair game." Clinard v. Blackwood, supra, 46 S.W. 3d at 188. Disqualification cannot prejudice Respondent but will eliminate powerful forces arrayed against the people and protect the integrity of the lawyer-wtiness rule. See Berkman v. Coast Guard Academy. Granting this motion will help protect and defend the integrity of the FEC process and end Respondent's "unfair game. Clinard v. Blackwood, supra, 46 S.W. 3d at 188. Multiple representation of a union, officers and employees has been held to constitute a conflict of interest in civil litigation. See, e.g., Yablonski v. UMWA, 448 F.2d 1175 (D.C. Cir. 1971); Teamsters v. Hoffa, 242 F.Supp. 246 (D.D.C 1965); White v. Fosco, 599 F. Supp. 710 (D.D.C. 1984). In the criminal case of In re Grand Jury Proceedings, 428 F.Supp. 273 (E.D. Mich. 1976), the Court disqualified New Jersey lawyers William Buffalino, Sr. and William Buffalino, Jr. from their multiple representation of co-employees of a Teamster's local union being investigated in connection with the disappearance and suspected murder of former Teamsters Union President James Riddle Hoffa. The Michigan District Court was concerned that the truth about Hoffa's disappearance would be suppressed if defense lawyers could represent multiple witnesses with different interests before the Grand Jury.
23. Potential witnesses against RANDY BRUNSON may be chilled by by the knowledge of the conflicted defense by MARK HERRON, who represents Democrats. The Republican Chair of the St. Johns County Commission, THOMAS GLAIZE MANUEL, for which BRUNSON was a candidate, is currently under federal indictment for bribery. If HERRON is permitted to represent BRUNSON before FEC, would there be no limit to whom he could represent? Could he represent MANUEL?
24. One reason another defense lawyer candidly offered for such conflicted representation is "controlling" witnesses, including "employees." James J. Brosnahan & Carol S. Brosnahan, "Attorney's Ethical Conduct During Adversary Proceedings," 523 PLI/Litig. 225, 255 (1995).
25. In Dunton v. County of Suffolk, 729 F.2d 903, 908 (2d Cir. 1984), the Court held that conflicted representation of a county and its employee resulted in the lawyer failing to act as a zealous advocate for the employee. In Shadid v. Jackson, 527 F. Supp. 87 (E.D. Tex. 1981), Judge Justice disqualified a law firm from representing both a municipality and a policeman in a civil rights case, holding that even though they had both signed a waiver, that was not enough to excuse the conflict of interest in their multiple representation.
26. In the instant case, MARK HERRON says "I can represent anyone I want." His statement indicates an expectation of entitlement -- that FEC won't regulate his representation. This is troubling, especially since he formerly held the top position in FEC.
27. Conflicted defense teams were disqualified by the Courts in United States v. Flanagan, 679 F.2d 1072 (3d Cir. 1982), rev'd on other grounds 465 U.S. 259 (1984), even though the defendant police officers jointly consented to the multiple representation. In Pacific Dunlop Holdings v. Barosh, 22 F.3d 113 (7th Cir. 1994), the Court upheld disqualification of a law firm that failed to advise shareholders to question fraud, finding that the lawyers would be called as witnesses (while rejecting Rule 11 sanctions). Likewise, in McKenzie Constr. v. St. Croix Storage Corp., 961 F.Supp. 857 (D.V.I. 1997), the Court disqualified the court-appointed mediator from later representing one of the parties, rejecting arguments that she did not know anything that could be of value. In Worldspan, L.P. v. Sabre Holdings, 5 F.Supp. 2d 1356 (N.D. Ga. 1998), the Court disqualified a law firm and rejected its reliance upon a six-year old waiver letter as a basis to resist disqualification.
28. Screening (or "Chinese walls") is not adequate to protect against divided loyalties between concurrent clients). Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1321 (7th Cir. 1978). In Harsh v. Kwait, 2000 Ohio App. LEXIS 4636, as amended by 2000 Ohio App. LEXIS 5889 (Ohio App., 8th Dist., Cuyahoga County, 2000), a law firm drafted an indemnity agreement that was at issue in a sexual harassment lawsuit against a dentist -- the law firm was disqualified. The Ohio Court of Appeals held, "There is no way to erect a "Chinese Wall' at counsel table." 2000 Ohio App. LEXIS 5889. See also Palumbo v. Tele-Communications, Inc., 157 F.R.D. 129 (D.D.C. 1994)(Judge Stanley K. Sporkin); Harrison v. Fisons Corp., 819 F.Supp. 1039, 1041 (M.D. Fla. 1993). In Estate Theaters, Inc. v. Columbia Pictures Ind., 345 F.Supp. 93, 99 (S.D.N.Y. 1972), the Court held that no attorney should be allowed to enter a situation where s/he would be tempted to less-than-zealously represent one client's interests to benefit another.
29. FEC must call an end to Respondent's very "unfair game." Clinard v. Blackwood, supra, 46 S.W. 3d at 188; See Rule 4-1.7, supra.
30. Even if FEC approved the conflicted representation, attorney-client privilege may not apply to future controversies involving jointly represented clients. In re Grand Jury Subpoena Duces Tecum Dated November 18, 1974, 406 F.Supp. 391 (S.D.N.Y. 1975).
Complainant respectfully request that disqualification be ordered of MARK HERRON and his law firm.
ED SLAVIN,. Complainant
P.O. Box 3084
St. Augustine, Florida 32085-3084
CERTIFICATE OF SERVICE
I certify this document was faxed to FEC (850-921-0783) and MARK HERRON (850-224-4359) on November 11, 2008.