Updated: Did Attorney Violate Attorney-Client Privilege By Suggesting Raniere Is Broke? Opinions Differ

Marc Fernich for the defense?

This article, which was originally published on October 21st, at 11:07 P.M. ET., has been updated and revised at 2:30 PM on October 22nd to reflect comments by attorney Marc Fernich, the opinions of two other attorneys, and other modifications to reflect an ongoing understanding, some new information and other developments in the matter. In short, I did a rewrite. 

Marc Fernich, a former attorney for Keith Raniere, filed a letter with the US Court of Appeals. In so doing, a question was raised as to whether he breached attorney-client privilege.

Fernich’s letter was about a missed deadline for a supplemental brief for Raniere’s appeal, which Fernich previously requested, and was expected to file. It was due on October 20th but was not filed by that deadline.

Fernich’s letter was short and to the point: He won’t be filing the brief. I was curious as to why he waited until the day after the deadline to tell the court this news.

Here is the letter:

Hon. Catherine O’Hagan Wolfe
Clerk, US Court of Appeals – Second Circuit
Thurgood Marshall US Courthouse
40 Foley Sq.
New York, NY 10007
Re: US v. Raniere (Bronfman), 20-3520 (CA2)

Dear Ms. O’Hagan Wolfe:

I write, as lawyer of record for Keith Raniere, to respectfully advise that I won’t be filing on his behalf the optional supplemental brief authorized by the Court. I understand that alternate private counsel is expected to substitute and file, with government consent, a delayed supplemental brief, currently due yesterday. I also sent Raniere, through his designated agents, a CJA 23 Financial Affidavit, explaining how he may seek the appointment of public counsel or otherwise represent himself.

 

 

The last sentence is problematic to me. Fernich seems to reveal that Raniere is out of funds. Reading into it, I assume Raniere owes him money or could not pay him what he wanted to write the supplemental brief. That Fernich sent a financial affidavit to Raniere’s designated agent in order to possibly help him get financial aid for a lawyer is not something I would want to be disclosed to the world were I a client.

Fernich is a Manhattan attorney with around 30 years’ experience. His practice centers on criminal defense, appeals and motions.

Fernich Responds

Updated:

After reading my original report, Fernich sent the following to me via text: “Mr. Raniere and I are parting ways for reasons that will remain private. He can’t go unrepresented on a pending appeal. My letter informed the Court, consistent with my professional obligations and Second Circuit rules, that I advised the client or his agents of his options moving forward in my absence — retain private replacement counsel, request the appointment of public counsel or represent himself — and that he appears to have chosen the first one.”

Two attorneys also weighed in on the topic.

One of them sided with Fernich.

He wrote, “Revealing the reason for withdrawal is standard fare and required by virtually every court. Likewise, the last sentence where Fernich writes that he informed Raniere that he may have access to court appointed counsel based on his finances (or lack thereof) is standard.
“There is nothing wrong in any of this letter. He’s not disclosing details about differences in strategy, or disputes with Raniere over the law or whatever. If anything, this letter is the minimum amount required. In any event, your post has it completely wrong. I leave it to you whether to correct it, since this email is for your edification and for the benefit of of those who follow your blog.”
The lawyer also added, “Not every communication between attorney and client is privileged, only those communications concerning or including legal advice is. Retainer agreements are usually confidential, but they are not privileged except to the extent they contain privileged matter (and then only those parts are privileged). Indeed, the fact that you may be able to review the retainer proves this point since anything privileged that is shared with you immediately loses that protection.”

Another View

Another attorney had an opposing view.

He said,  “When Fernich wrote, “I also sent Raniere, through his designated agents, a CJA 23 Financial Affidavit, explaining how he may seek the appointment of public counsel or otherwise represent himself,” he is disclosing the client may not have the financial wherewithal to proceed, so he is tipping off the feds, letting them know they do not have to worry about this guy getting an expensive hard-nosed attorney. It makes it clear to the feds that he might not be represented by counsel anymore.

“I do not see what good came out of the last sentence. If the attorney felt he had to put it in, he should have filed it under seal, ex-parte.  Let me ask you this, how would you feel if your attorney had written that letter?  It has the feel of ‘something is wrong with the client.’  Still, everybody has their own standard.  The question is, did Marc Fernich disclose information that his client revealed? Is it a borderline attorney-client privilege issue? Maybe. But the bigger question is whether it was necessary to do it publicly”

Restitution Follies

At a July restitution, hearing where Fernich did appear for Raniere, the lawyer had an angry exchange with Judge Nicholas G. Garaufis. The flare-up was not on behalf of his client but over a personal issue. Fernich was angry because the judge would not delay the proceedings by an hour so that Fernich might attend a close friend’s funeral and family get-together that followed.

After the exchange, Fernich got into an extraordinary staring contest with a federal judge that lasted literally 30 minutes.  It ended with Fernich apologizing.

By the way, I am no fan of Raniere’s. In fact, I firmly believe that the best place for Raniere is USP Tucson – although not in the SHU where he is presently assigned but in a regular unit with other prisoners of his ilk.  The prison is populated with prisoners who are sex offenders.

Keith Raniere

I hope Raniere stays at USP Tucson for as long as he lives and I hope that is for many years to come. However, I believe in due process. If the FBI tampered with evidence, I would like to see that addressed even if it means a new trial – which he will most likely lose.

I believe Raniere is a monster. I know also that he has been through numerous attorneys. He had Marc Agnifilo and Paul DeroHanessian for the trial.

Marc Agnifilo and Paul DerOhannesian

He had Jennifer Bonjean, who filed his direct appeal.

Jennifer Bonjean

He had Steven Metcalf and Joseph McBride. I am not sure what these two did.

Raniere Lawyer Steven Alan Metcalf Portrait Headshot
Steven Alan Metcalf II, Esq.

And he had Jeffrey Lichtman, another lawyer whose role seems unclear, other than that he appeared with Fernich at the restitution hearing.

Jeffrey Lichtman

And he had Marc Fernich who was supposed to write a supplemental brief for Raniere’s appeal. But as we learned from his October 21st letter, he won’t be writing that after all.

It remains unclear if anyone will write a supplemental although Fernich did indicate that Raniere may have hired yet another attorney and that the prosecution may have consented to extend the filing deadline by a few days. Given that it’s the Court of Appeals that sets and extends such deadlines – and given that there is nothing in the record to indicate that any further extension has been requested or granted – it is not at all certain that raniere will be allowed to file a supplemental appellate brief..

Marc Fernich for the defense? Or is it the prosecution?

All of Raniere’s attorneys of record are gone. Probably most left with a bad taste in their mouth. In some cases, Raniere may owe them money and in other cases, the lawyers might have gotten one over on Raniere.  It may be karma. When he was a free man he used dozens of attorneys to win through litigation wars of attrition. He littered the battlefield with unpaid attorneys, while others overbilled him enormously.

When I say “him”, I mean of course the Bronfman sisters who funded the litigation.

He used and abused the legal system and despite his claim of being the smartest man in the world, he sits in prison, going through one attorney after another.

Viva Executive Success!

 

 

 

 

 

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Frank Parlato

48 Comments

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  • When Miranda Rights are read, you are advised that an attorney will be provided if you so desire/require.

    No, it is not the same as attorney-client privilege.

    But how is an attorney including that option in a former client’s new legal choices anything other than a professional courtesy?

    So silly. Fragile, brittle and easily offended.people looking for anything to be a “victim” over.

  • My guess is

    Raniere wanted Marc Fernich to file the silly Rule 33 motion on “newly discovered evidence” and Fernich refused.

    Because of this, Fernich was handed his walking paper without his final bill being settled.

    Now, Raniere is looking for someone hungry enough for money to take on his case to file the Rule 33 motion and ask the court to forgive a late filing due to Fernich dropping his sorry ass at the last minute.

    Clare is waiting with her money to gladly pay his legal bills. Raniere hasn’t found anyone who is willing to take his case on, yet.

    It’s just a matter of time before some crazy lawyer takes him on. One with a big ego who believes they can get the little stinky troll out of prison or make a ton of money trying.

  • All jurisdictions differ. I practiced in California, where a client’s failure to pay, or inability to pay, creates a potential conflict of interest and is grounds for counsel to file a motion to withdraw as attorney of record. The motion must be accompanied by a supporting declaration showing why a substitution of attorneys by consent could not be obtained, however, the California Rules of Court require that the declaration must be stated “in general terms and without compromising the confidentiality of the attorney-client relationship.” Ability to pay is clearly confidential and not something counsel should state in a public document.

    In practice, an attorney files their motion stating “good cause exists” to be relieved as counsel, and if the court is not satisfied with that general statement counsel requests an in camera hearing (private hearing in front of a court reporter, usually held in chambers) to preserve the client’s privilege of confidentiality as it relates to financial matters. The hearing transcript would then be sealed but the court’s order granting or denying the motion would be public, just not stating the reason.

    New York law may differ, but the answer is there if someone cares to do the research.

  • Given the public profile of the case, you’d think there’d be no shortage of defense attorneys willing to represent him, unless (1) he has a reputation for being a narcissistic nightmare to work with that’s surrounded by sycophants unwilling to listen to reason, (2) his supposed hard drive tampering evidence has questionable merit, or (3) all of the above.

    I wonder how Fernich felt about Suneel having power of attorney and, allegedly, improper access to discovery materials.

  • By the time the lawyers are finished with these defendants, they will all be broke.

    You’ve heard of “Death By a Thousand Cuts>”
    This is “Death By a Thousand Lawyers.”

    The real game will start when the civil RICO suit hits the courts.
    TRIPLE DAMAGES!

    • Shadow-

      When you’re right, you’re right! When you are right, you’re on the money!!! Sincerely!

      ***
      I am sorry for being flippant, now, but, I’ve come across the ultimate Christmas gift for you, my dear friend!

      It combines what a man holds holy and what you fantasize about. The cankles of Allison Mack and the divine essence of a woman!

      Here it is:

      https://www.instagram.com/p/CVUnHzzBRIR/?utm_medium=copy_link

      God truly has thought of you and benevolently smiled upon ye!

  • Someone reported Suneel has taken a lot of his stuff off his website. What else might have been deleted, pertaining to the drive and the shared privilege evidence?

  • Be sure and drink plenty of fluids. All that foaming at the mouth is dehydrating.

    I’m starting to suspect you aren’t a religious pluralist.

    Your gaslighting about the imaginary sky God raping an under-aged girl to birth your “savior” exactly parallel how the NXIVM bitter-enders paper over Keith’s crimes — “she was asking for it.”

    You must have been a NXIVMite yourself.

    How did you become disillusioned with Keith and the Society of Protectors?

    Was it that the SOP circle-jerks failed to delivery sufficient thrill?

    How did it lead you to the Jesus cult?

    Did you consider any other cults (like, say, Ramtha’s School of Enlightenment) before you settled on Jesus?

    Asking for a friend…

  • Beware! You are becoming, “the blog that cried wolf on behalf of Keith Raniere”.

    The more you and the Nxivm dead-enders make huge mountains out of specks of dust – the less believable any actual grievance on behalf of vanguard appears.

    You all could not be doing a worse job advocating for Keith if you tried… Hey! Wait a minute…?

    These easily discredited and cleared up: “Brian Booth changed his LinkedIn page” or “Keith is maybe sorta getting possible maybe not sure poor treatment but we don’t know for sure maybe” articles are really a disservice for Keith’s cause.

    In other words… KÈEP IT UP PLEASE!

    • The NXIANs are too dumb to see how Frank keeps playing them.

      It is so much fun to watch. Frank is brilliant that way.

  • …By the look 👀 off the comment section below, those 3 boxes of Ring Dings got polished-off. I wonder how much milk 🥛 it takes to wash it all down….

  • Suneel-

    I have fully investigated the EXIF debacle/debate. You and Frank Parlato are 100% correct in regards to the EXIF, being easy to manipulate. It’s child’s play.

    BOOTH DID LIE!!!!

    In the beginning, I believed Booth wasn’t lying. I now believe Booth’s answer was a 1/2 ass, off-the-cuff, and nontechnical answer, so the lay-people in the jury could understand. Technically he did lie!

    BUT, the EXIF technology is only one part of the complex RAW data file. There is much more……

    Suneel, you’re intelligent and well versed in IT. The EXIF issue, like or not, is a total “red herring”. I have to believe you’ve known the whole story all along when it comes to RAW files. Therefore, I have to conclude you are a fanatic because why else would you risk your personal freedom over bullshit assertions and a purloined hard drive.

    I pity you! I only hope one day you move on.

    ****
    I’ll be submitting my article to Frank, a day late, on Sunday.

  • This is actually what you pay the big bucks for – all these delaying tactics and little manipulations and knowing how to work the system, etc. Judge shopping. Changing court location. Switching counsel many times. All of those moves.

    It was most likely done with Keith’s participation and consent and simply another manipulative court tactic.

    Will Keith file a complaint with the state bar? There are always these allegations of impropriety on Frank Report regarding Keith’s prison and court and other treatment – yet never any actual formal complaints filed or steps taken to add any weight or truth to the allegations.

  • RE Fernich, Raniere’s Funds, and Suneel.

    I doubt Raniere is broke! I believe Suneel ceased paying Fernich; Suneel has power of attorney, and therefore controls the purse strings.

    Why did Suneel/Raniere stop payment?

    •To extend the filing of the appeal, hopefully until Raniere gets out of the SHU.

    •A better appeals attorney is now available and/or Fernich’s job performance was subpar.

    Money is not an issue. Suneel comes from money and he is clearly a Raniere diehard. It’s not a stretch to say, Suneel will spend his last penny to defend Kieth. The Bronfmans aren’t the only piggy bank in town.

  • The government uses the unpopularity of pedophiles, cult leaders and terrorists to set legal precedents which increase its power, and which erode the civil rights of all citizens.

    I guess it should be expected that so many people here cheer on possible evidence tampering and violations of due process – even obstruction of justice – for their hated VanTard.

    But that Frank Parlato is accused of being some kind of NXIVM Loyalist for pointing out these naked government power grabs proves how tribalism turns everyone into blind retards.

    I’ve learned a lot in my foray into the NXIVM fray.

    Some of the things I’ve learned I wish I hadn’t.

    Alanzo

  • There is nothing wrong with mentioning a client’s inability to pay. It did not break attorney-client privilege.

    I personally view every attorney that encouraged letters of support from former and current nxivm cult members as being guilty of malpractice.

  • Does this mean Raniere no longer has any high paid attorney’s representing him? Who is representing him now, if all the one’s mentioned above are now gone?

  • There is nothing improper about when Fernich did. Everyone knows that Raniere has been a paper pauper who kept little property in his own name. Thanks to having multiple judgments, imprisonment and having his share of the Cafritz fortune garnished, he is an actual pauper now.

    The real question is whether Fernich has caught wind that something is up with Raniere and his cult. Between Suneel Chakravorty’s shenanigans and the fact that Raniere has been in SHU for over 90 days (a giveaway that there is a formal charge lodged against him), it is looking like Raniere and Chakravorty may have asked Fernich to commit an illegal act –not unlike how Chakravorty’s conversation with Raniere caught them trying to lean harder on Marc Agnifilo.

    Every defendant and lawyer has until Monday to explain to whom they have shared privileged evidence. If Fernich was told to lie, that’s something that could end his career much faster than his outburst with Garaufis (who has had many an outburst over his career).

  • ‘after shitting all over his client and no doubt gouging him for money, craps on him when he runs out of money, as he goes out the door’. Cry me a river. What you give, you shall receive. Keith is receiving bad luck big time and why not? Why are we solely looking at the legal system and whether justice has been served? All the various getting shit on, being gouged for money and more crapping on has been attracted by Keith. Furnich, can I get a high five?

    • Great points. Just about every single person Keith’s had any sustained relationship with, he’s screwed out of money. If the person he screwed over was lucky, Keith wouldn’t rub salt in the emptied bank account and sue the person. Why would Keith’s interactions with his laundry list of attorneys be any different than every interaction he’s had with people since at least college?

      Cry me a river. You get what you deserve. What you give, you shall receive. Karma. Ha ha. Tee hee. (we could go on an on)

      I’m sure Fernich knew what he was getting into when he signed up to represent Vanguard. It also seems like Fernich has some issues of his own he needs to deal with…

  • There are certainly enough hidden assets and money from Raniere. But he can’t use it to spend any of it without being able to prove where it came from. That’s a problem. And it becomes a problem when attorneys accept money that comes from crimes. That would be money laundering. Then the attorneys themselves get a problem, because they make themselves liable to prosecution.

  • I appreciate the ghastly man Fernich’s indiscretion. Best news re: Raniere in a long time. Does this mean the Bronfmans aren’t funding him anymore? Couldn’t Suneel step in? On here, it has been mentioned several times that he is a man of means.

    • Doubt it’s a coincidence that Clare’s appeal coincides with (apparently) pulling funding from Keith. Clare’s attorneys saw the cheat code on how to get a shorter sentence from the judge.

  • Raniere got what he chose for himself, his attorney. There is no one to blame but Raniere himself. He had a few attorneys before, if he had stuck with his first choice, it wouldn’t have cost him so much money, which apparently is now in short supply. It’s his own fault. He always trusted that he would never run out of money. It was a miscalculation. Another mistake by Raniere.

  • His latest ex-attorney is mocking him publicly.

    Come now, Frank. You don’t believe for a second that the Bronfman cash isn’t still flowing for their Vanguard, do you?

    The FR Wack Pack Marc, Suneel, Alanzo and Anthony wouldn’t be dancing to Keith’s tune without a payday.

  • “ I understand that alternate private counsel is expected to substitute and file, with government consent, a delayed supplemental brief”

    From this, I conclude there will be a supplemental brief. It is delayed and the government has consented to the delay. “Alternate private counsel” might be none other than Suneel……

    • Your interpretation may be correct – but it fails to address the fact that the Court of Appeals has not consented to a delayed filing beyond the deadline it had already extended at the request of Mr. Fernich. Since Mr. Fernich was still counsel of record when all this was going on, it was his obligation to inform the court that there had been a change of representation for Keith — and that his former client would need additional time to file the supplemental brief.

      The Second Circuit may allow the newest attorney an extra period of time to file the supplemental brief. Or it may simply reject the filing on the basis that it was filed after the applicable deadline.

      • KR, does the attorney need permission to be dismissed from the case, even if the client is no longer paying him?

        • The rules are different when you’re representing someone on an appeal versus representing them at trial. In this case, Marc Fernich had the right to withdraw if he wasn’t being paid (or for a host of other reasons), provided that he took steps to ensure that his client would have other representation or know how to represent himself. Nevertheless, I think sending his letter after the deadline for the supplemental brief had passed — and openly disclosing the fact that Keith may have to rely on assigned counsel — could have been handled better.

      • Looks like another delaying tactic to me.

        Raniere and his tag team of lawyers seem to think the US Federal Court system should dance to their tune.

        “We need an extension.” “I have a funeral that day.” “We forgot.” “My secretary didn’t tell me about the email”. “The dog ate the brief.”

        For those who complain about supposed injustice of the legal system and government generally, observe how much patience the system has show towards these convicted felons. Observe how often these extensions are granted, how little enforcement of bail restrictions. Observe how the system allows convictions to be appealed ad infinitum, while there’s no such thing as a prosecution appeal of a flawed not guilty verdict. The system is heavily biased toward defendants and even the guilty are afforded every opportunity to appeal. Just as it should be.

        So Raniere, having missed yet another extended deadline, can continue his endless series of appeals. Again and again and again.

        No guilty verdict is ever final. Only not guilty verdicts are final.

    • How I would love that comedy. Suneel representing Keith, which really would mean Keith incompetently representing himself and making Suneel look like the imbecile when it inevitably all goes to shit

      • Keith won’t stop until Suneel is in prison and Suneel’s daughter has a KR “tattoo”. I’m not joking.

        Suneel is late to the party and doesn’t remotely comprehend who he’s dancing with.

        • Agree with everything except the likelihood of Suneel having a daughter— god forbid he adopts from say, Conneticut.

  • “ alternate private counsel is expected to substitute and file, with government consent, a delayed supplemental brief”

    Oh, Sweet Jeebus, I hope this means a tag team debacle featuring The World’s Smartest Man and his trusty butt wiper, Suneel.

    I’ve never understood why The World’s Smartest Man would need to hire legal counsel.

    Viva El Anti-Cult!

  • Uh it should be pretty easy for you to research this. Even preliminarily you should have thought of recent stories of a recent litigation heavy ex-President and his lawyers complaining of not getting paid. That alone should have triggered “not getting paid/being broke may not fall under privilege” red flag. In this case its pretty common for lawyers to stop refusing to litigate a case due to lack of payment and must explain their attempt to drop a client mid-case under those reasons.

    Others will likely get into detail on attorney-client privilege but my main point is you have recent, real world examples to make you question your own conclusions. I assume you have access to LexisNexis for access to news and legal reports of similar cases to support or dismiss your argument. Instead we have some article that shows little to basic research to verify the validity of your accusation of malfeasance or even asking those who might have expertise on this question (Claviger probably could have pointed you in a direction). Which is pretty fundamental part of reporting.

    Sensationalism gets eyeballs, and the title did that. I would argue “Raniere’s lawyer quits on day critical appeals documents are due” would be the better, more sensational title rather than an accusation of malfeasance but your title choice indicates you disagree with that.

    You could have written essentially the same article, more centrally focused on “fair play” without the unnecessary, likely incorrect and distracting accusation. In the meantime then researched and/or asked appropriate sources if attorney-client privilege covered financial situation regarding non-payment and wrote a second article on that with links and/or quotes backing up your accusation. Instead you sadly misinformed readers who when hearing similar cases on the news will reach incorrect conclusions. But eyeballs I guess.

  • Maybe Marc Fernich is warning further attorneys that Raniere is out of money because he was warned by past attorneys of Raniere’s and bought Raniere’s lie.

    Now he is left holding a big bag of debt he will never collect on.

    Raniere has a history of not paying his attorneys and Marc Fernich is doing a public service announcement because he is sick of Raniere being a rip-off artist.

    Fernich might be willing to take his chances with a hearing in this case because he knows he will win.

    This guy can’t be as egotistical as Keith Rainier is to pull a bone head move without thinking it all the way through.

    Do you really think that Raniere is out of money? No one is willing to step up and pay his bills. Or is this a lie Raniere has old Fernich to not pay him?

    Is this Marc Fernich calling Raniere’s bluff?

    Time for more popcorn

If the whole world stands against you sword in hand, would you still dare to do what you think is right?

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