FL - FSU Law Professor Dan Markel Murdered by Hitmen *4 Guilty* #25

[Zedzded]

God forbid anyone ever being in such shoes.

Someone told me about own experience of being raised by some relatives because dad killed mom, and finally meeting dad decades later, as an adult. That person didn’t feel any hatred, on the contrary, they were so darn happy to meet a single parent in their life. It was the father’s fault that the child was practically orphaned, but how this double void felt for the growing child we also have to understand.

Yeah I get it. One of my good friends was charged with some pretty horrendous sex crimes. You read about people like him in the news and feel rage and hatred for the perpetrator. And that's what I wanted to feel, but I didn't. I was obviously disgusted with what he did and will never speak to him again, but I just felt no hatred, which was quite confronting and confusing in a way.

So reflecting on my previous comments and thoughts re the Markel boys. I would understand if their Mum is found guilty and they still find a place for her in their lives. They probably love their Mum and their Dad is now just a distant memory.

 

[Going Rogue]

In my opinion, the interests of alleged co-conspirators are generally ALWAYS materially adverse to each other. This is why they generally are not represented by the same attorney, in my experience. Sigfredo and Katie, for example, had different attorneys. (They did not end up testifying against each other, but because each had an attorney who represented ONLY their interests, they retained the option to do so, without presenting any potential conflict for their attorney.)

Why? Because in my understanding, in many instances, the best defense for one co-conspirator would be to point the finger at the other, or to do a deal which implicates the other. Such a defense, in my opinion, can never be ruled out as an option for the client.

If they have the same attorney, any defense for one client which would harm or implicate the other is effectively foreclosed, as is the possibility of one turning on the other to get a deal.

What may be confusing in this case is the fact that Rash represented these clients in sequence and not at the same time. In my opinion the conflict is still present absent an express waiver, and there is no guarantee such a waiver won’t be rescinded later, or that it will be accepted as sufficient by the court.

Hypothetically, for example, the attorney may have learned confidential information from the first co-conspirator client which would be helpful in his subsequent representation of the second, but he might be precluded from using it because it would harm the first co-conspirator, or vice-versa. This is compounded in this case, in my opinion, because Donna has been at various points, both the first and the second client in the above hypothetical.

All in all, in my opinion, it’s a mess.

Based on Rule 1.9, the interests of the ‘client’ and the ‘former client’ (Charlie & Donna) being ‘materially adverse’ has to be evaluated based on the variables / conditions that are ‘real’ and ‘known’. In your response you are outlining variables or conditions that do not exist in this case OR are just hypothetical scenarios:

“one co-conspirator would be to point the finger at the other, or to do a deal which implicates the other”

I can easily make the argument that Charlie and Donna’s interests were not ‘materially adverse’ prior to Ufferman’s motion based on the data we had at that time and I can do that without adding hypothetical scenarios to support that case / position.

 

[amicuscurie]

Based on Rule 1.9, the interests of the ‘client’ and the ‘former client’ (Charlie & Donna) being ‘materially adverse’ has to be evaluated based on the variables / conditions that are ‘real’ and ‘known’. In your response you are outlining variables or conditions that do not exist in this case OR are just hypothetical scenarios:

“one co-conspirator would be to point the finger at the other, or to do a deal which implicates the other”

I can easily make the argument that Charlie and Donna’s interests were not ‘materially adverse’ prior to Ufferman’s motion based on the data we had at that time and I can do that without adding hypothetical scenarios to support that case / position.

My point is that if co-conspirators have the same attorney, any defense which would be helpful to one but harmful to the other would be foreclosed. Sure, we don’t know whether either Charlie or Donna would have wanted to avail themselves of such a defense. We don’t know whether they would have viewed their interests as materially adverse. But, with the same counsel, I think we can safely speculate that no defense would have even been proposed for one which would be adverse to the other.

Having the same counsel takes the very idea that your interests might be adverse to your co-conspirator’s off the table, and that is why it is generally not advisable, in my opinion. The client has the right to his own counsel who isn’t even thinking about how the rights or wishes of another client might or might not conflict with his, and so can give him the most zealous representation possible.

 

[Charlot123]

In my opinion, speaking hypothetically, it’s ok to take sides against murder. If the one who commits it, hypothetically, has been legally determined to be a relative, I agree that therapy is definitely necessary for dealing with many issues which would possibly arise from this realization, such as helping you accept what happened and who they are, and helping you to realize that you do not have to follow in their footsteps, and to realize it is not your fault. I do think this would take a long time, and a great deal of therapy. But in my opinion there is never an absolute need to maintain a relationship with a parent, particularly if that parent has harmed you directly or is a toxic person. Apparently Robert Adelson, from a what I understand, made a choice to distance himself.

OK, we all inherit 50% of the genome from each parent, but in what combination, is absolutely random. I suspect that it all started with RA being very much unlike his mother, mentally. Maybe he could be a good role model for WA’s kids because he obviously managed to maintain his independence and sanity.

 

[Charlot123]

Yeah I get it. One of my good friends was charged with some pretty horrendous sex crimes. You read about people like him in the news and feel rage and hatred for the perpetrator. And that's what I wanted to feel, but I didn't. I was obviously disgusted with what he did and will never speak to him again, but I just felt no hatred, which was quite confronting and confusing in a way.

So reflecting on my previous comments and thoughts re the Markel boys. I would understand if their Mum is found guilty and they still find a place for her in their lives. They probably love their Mum and their Dad is now just a distant memory.

We all need emotional warmth more than intellectually uplifting conversations. After all, we can debate with ourselves, discuss with ourselves, self-teach, even play chess with ourselves. All that we know really well we taught ourselves, to think of. But emotionally colored world we can get only from others. Usually, one parent is more warm than the other. So in a way, we need more and tend to miss more the “emotionally enriching parent.” Who of the M-A couple was such a parent, it is impossible for me to say. I wouldn’t be surprised to hear that it was DM. WA appears detached, but appearances can be misleading. Well, I hope that she’ll be able to be the emotionally warm parent, because if that part is buried with Dan, that’s a double whammy.

 

[Going Rogue]

My point is that if co-conspirators have the same attorney, any defense which would be helpful to one but harmful to the other would be foreclosed. Sure, we don’t know whether either Charlie or Donna would have wanted to avail themselves of such a defense. We don’t know whether they would have viewed their interests as materially adverse. But, with the same counsel, I think we can safely speculate that no defense would have even been proposed for one which would be adverse to the other.

Having the same counsel takes the very idea that your interests might be adverse to your co-conspirator’s off the table, and that is why it is generally not advisable, in my opinion. The client has the right to his own counsel who isn’t even thinking about how the rights or wishes of another client might or might not conflict with his, and so can give him the most zealous representation possible.

Yes, we all agree that it’s not advisable, but it is permissible. I was looking for someone to poke holes in my interpretation of Rule 1.9 and based on my interpretation (if correct), I’m asking how anyone can blame the prosecutors, Jack Campbell, Judge Everett or Dan Rashbaum for what unfolded. I have seen plenty of videos and comments dishing out blame in all those directions.

 

[ch_13]

Rule 1.9 from the ABA:

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.​

Posting my thoughts on the above expert from the Rule 1.9: 'Duties to Former Clients' from the American Bar Association regarding the very issue we encountered that derailed Donna’s trial. I’m hoping someone with qualified *** by qualified I mean someone with legal credentials *** can explain how my layman interpretation is wrong:

Here is my layman breakdown of Rule 1.9 and why I think it’s unfair to cast aspersions on Jack Campbell, the prosecution team, or Judge Everett – I have seem many criticism of them all based on the latest developments. Further, in my layman opinion, Rashbaum did not break any ethics rules by representing Donna (only based on what is public) and I will explain why:

Rule 1.9 clearly states that a lawyer ‘shall not’ represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client. Can someone please explain how BEFORE Ufferman filed the motion to rescind Charlie’s waiver and object to Rashbaum’s representation of Donna and object anyone on Donna’s legal team from cross-examination of Charlie that you can argue Charlie and Donna’s interests were materially adverse? I understand the 'POTENTIAL' of conflicts arising especially in light of what happened - which is precisely why the ABA addresses this in Rule 1.9. They were clearly materially adverse AFTER Ufferman filed the motion BUT so long as they both agreed to Rashbaum’s representation (they did) and based on Donna’s defense strategy (unknown to anyone outside her legal team) we CAN’T say that PRIOR to Ufferman’s motion Charlie and Donna’s interests were materially adverse.

All those Monday morning quarterbacks assigning varying percentages of blame on both sides fail to mention the ambiguity of Rule 1.9. Maybe I’m wrong in my interpretation which is why I'm posting my thoughts and looking for ‘qualified’ opinions.

I'm no attorney, but I'm trying to follow your argument.

We know that Charlie never signed the written waiver form. So the last clause of Rule 1.9(a): "unless the former client gives informed consent, confirmed in writing." was clearly not met.

I don't see how that's not a violation of Rathbaum's ethical duty. Judge Everett certainly seems to agree. He wrote this in his order: "The withdrawal of attorney Daniel Rashbaum became necessary when he engaged in a conflicted representation falling short of the ethical obligations for members of the Florida Bar." (emphasis added)

For what it's worth here's the ABA's formal opinion of "Conflicts Involving Materially Adverse Interests", issued on February 10, 2021.

https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-497.pdf

 

[amicuscurie]

I'm no attorney, but I'm trying to follow your argument.

We know that Charlie never signed the written waiver form. So the last clause of Rule 1.9(a): "unless the former client gives informed consent, confirmed in writing." was clearly not met.

I don't see how that's not a violation of Rathbaum's ethical duty. Judge Everett certainly seems to agree. He wrote this in his order: "The withdrawal of attorney Daniel Rashbaum became necessary when he engaged in a conflicted representation falling short of the ethical obligations for members of the Florida Bar." (emphasis added)

For what it's worth here's the ABA's formal opinion of "Conflicts Involving Materially Adverse Interests", issued on February 10, 2021.

https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-497.pdf

“Shall not” means it’s not permissible, the way I interpret it. As for “are materially adverse”, well, generally the client doesn’t make that decision, the attorney is supposed to when deciding whether to take that representation. How can an attorney make that decision in an objective manner given his loyalty to both his present and former client?