Judge Garaufis may choose to establish ‘Raniere Hearings’ on finer points of attorney conflict not contemplated in standard Curcio hearings

As previously noted, the purpose of the Curcio hearings that are being conducted by Judge Nicholas G. Garaufis is to ensure that each of Clare Bronfman’s co-defendants is fully aware of the potential conflicts-of-interest arising from the fact that all their attorneys are being paid for from a Legal Defense Trust Fund that was set up by Clare Bronfman.

Judge Garaufis decided to hold the Curcio hearings to ensure that Keith Raniere, Allison Mack, Nancy Salzman, Lauren Salzman and Kathy Russell all understand that they have a constitutional right to be represented by an attorney who has undivided loyalty to them – and that they are fully aware that the structure of the Legal Defense Trust Fund raises questions as to whether that is actually happening in this case.

After ensuring that Raniere, Mack, the Salzmans and Russell are fully informed about those conflicts-of-interest – and after hearing them all choose to keep their current attorneys – the judge will then have to determine whether their decisions to be represented by a conflicted attorney was “knowing and intelligent”.

Conducting these Curcio hearings is a means for Judge Garaufis to insulate himself from later criticism on appeal that a defendant unknowingly was deprived of her/his constitutional right to be represented by an attorney with undivided loyalty.

Properly documenting that all of Clare’s co-defendants made informed decisions to retain their current attorneys rather than having unconflicted ones appointed in their place does not eliminate the possibility of them appealing a conviction on those grounds.

It will, however, certainly provide the appellate court with the record it needs to quickly determine that any such appeal is meritless and dispose of it without wasting too much of its time.

*****

While Judge Garaufis showed great foresight and prudence in deciding to hold the Curcio hearings, the question must be asked as to whether that will be enough in this case to avoid the possibility of having any of the trial verdicts overturned on appeal.

Given the uniqueness of having all of Clare’s co-defendants being paid from the Legal Defense Trust Fund, perhaps Judge Garaufis also needs to conduct a separate set of hearings – which would henceforth be known as “Raniere hearings” – for those attorneys (Unlike the Curcio hearings, which are being held in open court, the Raniere hearings would be held in the judge’s chambers without any of the prosecutors in attendance).

Were the judge to hold such hearings, here are some of the questions he might ask each attorney to answer, under oath and with none of the other defense attorneys present:

– How did you first become involved in this case: i.e., were you contacted directly by your client – or did someone else contact you and ask you to represent your client?

– Did you inform your client that she would have to accept you as her attorney or pay for her own attorney?

– Who decided how many attorneys from your law firm would be assigned to your client?

– Is there a “Common Defense Agreement” in place for all of the defendants who are being represented by the attorneys who are being paid for out of the Legal Defense Trust Fund?

– Have you granted Marc Agnifilo the power to speak on your behalf with respect to any/all matters involving this case?

– Are you independently formulating the defense strategy for your client – or are you following the direction of some other defense attorney(s)?

– Have you been able to work as many hours as you feel are necessary on this case – or have your hours been restricted in any way?

– Have you filed all the motions and other pleadings that you think could be helpful to your client in this case – or have you been restricted, in any way, in doing everything you can to help your client defend herself against the charges pending against her?

– Are you receiving compensation for your work on this case from any other source other than the Legal Defense Trust Fund that was established by Clare Bronfman?

– Have you been promised any future compensation for continuing to represent your client after the Legal Defense Trust Fund runs out of money?

– Have you received any other referrals or other legal work as a result of your representation of your client in this case?

– Are you covering any of the out-of-pocket expenses that your client is incurring with respect to this case: e.g., travel costs, copying costs, filing fees, etc.?

*****

One of the things that Judge Garaufis must do as the presiding judge is to create a full and clear record of any matters that might be disputed after verdicts are rendered so that an appellate court will have something meaningful to review.

Creating a record regarding how the attorneys representing Clare’s co-defendants are operating in this case would seem to be just as appropriate and prudent as holding the Curcio hearings.

Raniere once appealed the denial of a preliminary injunction in the Rick Ross case all the way up to the U.S. Supreme Court – which, of course, refused to even hear the appeal.

Imagine what he’ll do when he’s found guilty in this criminal trial – and is facing 20 years or more in federal prison.

On to the Raniere hearings!

K.R. Claviger