The prosecution is going to get to see a redacted copy of the Clare Bronfman-funded Trust Fund documents.
The trust has been paying for lawyers for Keith Raniere, Allison Mack, Lauren and Nancy Salzman, and Kathy Russell.
A potential conflict of interest was raised by the prosecution concerning the trust since one of the defendants – Clare Bronfman – is paying the lawyers of her five co-defendants.
At the February 6, 2019 Status Conference, Judge Garaufis said he believed it would helpful and appropriate for the Government to receive a redacted version of the Trust Indenture.
According to a letter filed with the court, Keith Raniere’s attorney, Marc Agnilio, informed the trust’s attorney, James Q. Walker, of the judge’s position. Walker apparently does not object to the disclosure of documents in redacted form to the prosecution.
According to the letter, Agnifilo says that Walker told him that “the redacted declaration and redacted trust document reinforce the information he provided to the Government over two phone calls last year.”
Agnifilo writes he will “promptly” provide the redacted trust documents to the prosecution.
The upshot of this is that the trust indenture will likely contain language that the defense wants the government to see – since it supports Aginfilo’s assertion that, while Clare Bronfman funded the trust, she can exert no influence on the conduct of lawyers paid by it.
This may seem like much ado about nothing considering the trust fund is almost depleted, and Clare’s attorney, Susan Necheles, told the court Clare will not replenish it.
Meantime, the Nxivm attorneys seem unwavering in their determination to continue representing their clients with or without the trust paying them. The clients likewise seem unwavering in their desire to keep their present counsel.
If the Nxivm defendants leave their high profile, high paid and competent lawyers and get assigned counsel – I think they are cooked. They may be cooked in any event – but with assigned counsel, they may have no chance except to cut a plea deal.
I suspect there are good lawyers in the assigned counsel or public defenders programs – but they cannot devote the time and resources to defend their clients as a privately paid lawyer can.
Most public defenders are overloaded with cases. Many are less experienced. They are paid perhaps 25 percent of what decent criminal lawyers make and 10 percent of what top lawyers make. This suggests that they are not the most talented, competent or experienced trial lawyers.
On the other hand, there may be an unwritten scheme subscribed to by the Nxivm lawyers to keep the Nxivm defendants hanging together through trial and for none of them to take a plea deal – even a very good one – if it will require them to testify against Bronfman or Raniere.
There is evidence of this cited by the prosecution that an attorney to be paid by the trust declined to represent a witness called to the grand jury unless she pleaded the 5th Amendment for every question asked in the grand jury.
In the meantime, the lawyers have to survive a Curcio Hearing where the court independently, and potentially over the objection of the defendants, determines whether the Bronfman-paid lawyers may remain or be discharged.
It is curious: The trust fund is nearly exhausted, yet all of the lawyers apparently plan to stay on the case. Either they have become committed deeply to the case and are willing to work pro bono – through the most expensive part of the case – the actual trial – or that, after the trust runs dry, there will be another way of paying lawyers.
Possibly Sara Bronfman, the Salinas family, or someone else may contribute. Clare Bronfman herself may continue paying – but not through the trust. While her attorney Susan Necheles, said Clare won’t replenish the trust, I don’t believe she affirmatively declared that Clare won’t fund the attorneys outside the existing trust.
Last week, two more attorneys filed notices of appearance in the case – to represent Allison Mack.
One of those attorneys is Matthew Menchel, a highly regarded and expensive trial lawyer from Miami.
It is hard to believe that not only will all the present attorneys work for free once the current trust runs out – but that new lawyers are hopping on board to work for free.
Lawyers in firms, I understand, seek to bill about 2,000 hours per year – to be considered profitable and successful partners or associates. An eight-week trial will cost an attorney, I estimate, about 400 hours [50 hour weeks]. Plus, some two months in preparation which might entail another 300 hours.
If my figures are correct, that’s 700 hours or 35 percent of billable hours for the year based on the estimated 2000 yearly billable hours.
Of course, publicity for this high profile case – especially if they win it – might make up for the loss of revenue.
Imagine the headlines for Marc Agnifilo if Raniere is acquitted.
Still, it seems likely that the lawyers will be paid somehow for their work. Perhaps a new trust will be formed if the defense attorneys survive the Curcio Hearings.