2 released as lawyers in Maggio litigation

Attorney-client rule eased a bit

Michael Maggio
Michael Maggio

Two former attorneys for Michael Maggio will be allowed to reveal some previously confidential information that they exchanged with the ousted judge now that he has asked to withdraw his guilty plea to a federal bribery charge and accused the lawyers of providing ineffective counsel.

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U.S. District Judge Brian Miller

In a two-part ruling Tuesday, U.S. District Judge Brian Miller relieved attorneys Lauren Hoover and Marjorie Rogers of representing Maggio. Also, Miller granted a motion by the U.S. attorney's office seeking a "limited waiver" of the attorney-client privilege relating to matters raised in Maggio's motion to withdraw his plea.

Maggio's new defense attorney, James Hensley Jr. of Conway, filed a motion Wednesday asking Miller to place further restrictions on that waiver.

A short time later, the U.S. attorney's office countered with a motion asking to unseal a previously confidential plea addendum reached with Maggio more than a year ago. That document was in addition to an open plea agreement released on the day Maggio pleaded guilty, Jan. 9, 2015.

Maggio, 54, has a Feb. 26 sentencing date in U.S. District Court in Little Rock. He faces up to 10 years in prison, three years of supervised release and a $250,000 fine. He already has been removed from office because of unrelated problems, including contentious online comments that he made, and he has surrendered his law license.

Last year, Maggio admitted to lowering a Faulkner County jury's $5.2 million judgment in a negligence lawsuit against a Greenbrier nursing home to $1 million in exchange for thousands of dollars in contributions to his 2014 campaign for a seat on the Arkansas Court of Appeals.

He also implicated two other people, although not by name, in the open agreement. The two were referred to as a nursing-home owner, and a fundraiser and lobbyist.

A second lawsuit is pending in Faulkner County against nursing-home owner Michael Morton and former state Sen. Gilbert Baker, a Conway Republican who helped raise money for Maggio's campaign. This lawsuit accuses Morton and Baker of funneling money to the campaign in exchange for the reduced judgment. Both have denied wrongdoing.

Hoover and Rogers successfully argued this week to be released from Maggio's case. Under the Model Rules of Professional Conduct, they wrote, "a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness." They also noted that they would be "a necessary witness" for the prosecution if Maggio is to succeed in withdrawing his plea.

Assistant U.S. Attorney Julie Peters advanced that argument in a separate motion. "Because Maggio has called into public question the competence of his counsel, the attorney-client privilege has been waived as to the allegations in Maggio's motions." Peters cited a 1974 decision in the 8th U.S. Circuit Court of Appeals.

By "finding waiver of the attorney-client privilege as to the issues raised in Maggio's motion," Peters wrote, "This will allow the United States to confer with Maggio's [former] attorneys ... regarding the allegations of ineffective assistance of counsel, in order to prepare its response to Maggio's motion."

Hensley asked Miller to issue a protective order directing the U.S. attorney and Maggio's former attorneys not to disclose information "outside the context of the Defendant's claim of ineffective assistance of counsel and his request to withdraw" his guilty plea.

Hensley also asked that Miller order the U.S. attorney and Maggio's former attorneys not to "meet and confer outside the context of a formal proceeding with court supervision."

Late Wednesday, the prosecution filed a motion seeking to unseal Maggio's plea addendum. Peters said that step is needed so that the United States can "respond to the defendant's motion, and to fully address the motivation behind the defendant's attempt to withdraw his plea."

In arguing for more limited disclosure, Hensley wrote that the American Bar Association Standing Committee on Ethics and Professional Responsibility addressed an issue such as this one.

"The Committee's opinion states that permitting defense counsel to disclose information outside the context of a formal proceeding denies the former client an opportunity to object to disclosure," Hensley wrote.

Doing so with court supervision, he said, the defendant would have the chance to argue when information sought is beyond the scope of the waiver.

"Absent court supervision, the Standing Committee noted that disclosure of client information could be more expansive than necessary for the purpose of defending against the claim of ineffective assistance of counsel," Hensley wrote.

Hensley asked that the judge issue an order preventing any representative of the U.S. attorney's office from meeting with Hoover and Rogers unless Hensley is also present. He said the court should provide supervision to any such meetings.

In asking the court last week to withdraw Maggio's plea of more than a year ago, Hensley said Maggio is innocent and admitted to bribery only because of pressure from his former attorneys and threats by the U.S. attorney's office "with the indictment and prosecution of his wife."

Hensley devoted the bulk of the plea-withdrawal request to more technical issues -- whether Maggio's purported conduct violated the federal bribery statute "as a matter of law."

"A judge who accepts a bribe in exchange for a favorable ruling in a civil case cannot be convicted under" that statute, Hensley wrote. He added, "It was not until Maggio obtained new counsel that he fully understood and appreciated the legal issues in this case."

Ken Gallant, a professor at the University of Arkansas at Little Rock William H. Bowen School of Law, said it sounds to him as though there could be some limits on what information Hoover and Rogers can disclose.

"And that would depend on how the judge interpreted what was relevant to the claim of ineffectiveness he [Maggio] is making," Gallant said.

For example, if Maggio told his former attorneys about something he had been involved in that was "utterly different" from the bribery case, "that's probably going to still be protected," Gallant said. "But anything that can go toward his own credibility as to this decision [to withdraw his plea], then that's going to be open to the government to ask these lawyers about."

If Maggio succeeds in withdrawing his plea because of a strict interpretation of the federal bribery statute, another issue arises, Gallant said.

"The question is what will the state prosecution authorities do," Gallant said.

Prosecuting Attorney Cody Hiland, whose jurisdiction includes Faulkner County, did not immediately respond to a question seeking comment on that subject.

Jeff Rosenzweig, a criminal-defense attorney, said a plea addendum includes such information as whether a defendant has agreed to cooperate with authorities in a case. An addendum now exists even for clients who aren't cooperating, he said.

Metro on 02/18/2016

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