Updated on 10/18/21 at 5:02 p.m. to include the Delaware DOJ’s response to McGuiness’ petition.
State Auditor Kathy McGuiness has requested the state foot the bill for her legal representation after being indicted on a slew of felony and misdemeanor corruption charges.
In a separate motion, McGuiness’ attorney asked the court to sanction Attorney General Kathy Jennings, alleging that some of her comments during her announcement of the charges violated Delaware’s attorney conduct rules.
The charges against the auditor include conflict of interest, felony theft, non-compliance with procurement law, official misconduct and felony witness intimidation.
If convicted, McGuiness could face up to 13 years in jail. She has pleaded not guilty to all charges.
A motion filed Thursday by the auditor’s attorney, Steve Wood, says the court is authorized to appoint an attorney from the private bar when a conflict of interest exists or may exist that would preclude the Department of Justice from representing a defendant.
Wood wrote that because the Delaware Department of Justice is prosecuting McGuiness, it is “ethically precluded from providing counsel to the defendant.”
Firm fees broken down
His fees include $550 per hour for work done by partners at his firm, McCarter & English, LLP, $425 per hour for associates and $325 per hour for paralegals.
That, according to Wood, is a good deal.
The motion states that his standard rate is $650 per hour. In a recent white-collar criminal defense matter, he claims to have billed his client $630 per hour — less still than the $1,000 to $1,200 per hour that other defendants in that case paid.
The average hourly fee for firms of his stature in Wilmington is $638 per hour, according to the motion.
In the DOJ’s response to the motion filed Monday, the department said McGuiness is not entitled to retain private counsel on the taxpayer’s dime.
The DOJ acknowledges that public officers charged for acts arising from their employment are entitled to petition for a taxpayer-funded defense, but that such counsel can only be appointed from the DOJ or the state’s Office of Defense Services, pursuant to 10 Del. Code § 3925.
Wood argued that because the Delaware DOJ was the prosecuting entity in this case, the judge must recognize the potential conflict of interest and appoint him instead.
But when a conflict of interest arises, as in this case, the law only provides for the court to appoint counsel from the Office of Legal Services — not a private law firm.
“Here, contrary to the statute’s plain language, the Defendant — of reported significant financial means — has petitioned the Court to take two unnecessary steps that each controvert the statute,” the response says. “First, to appoint her retained private attorney as her counsel, despite no such allowance in the statute and no known conflict with the Office of Defense Services; and second, to compensate her counsel at more than five times the conflict counsel rate.”
The DOJ asserts in their response that McGuiness may elect to retain private counsel, but the tab can’t be picked up using public funds.
If McGuiness’ petition is somehow successful, the DOJ claims it would exacerbate existing systemic inequities.
The Office of Defense Services “handles almost thirty-five thousand cases annually,” the response reads. “In none of those cases is anyone compensated close to $550 per hour. [The DOJ] understands the current conflict counsel rate to be approximately $100 per hour for Superior Court cases.”
McGuiness is already entitled to more than all other defendants, according to the response, because if not for her elected position she would not qualify for representation by the income-restricted Office of Defense Services, whose services are traditionally reserved for indigent and incarcerated clients.
Her state salary is $112,000 per year, and she has, in the recent past, loaned her political campaigns more than $75,000. Additionally, McGuiness owns a house estimated to be worth between $2.2 million and $3.7 million.
“Compensating a wealthy defendant’s law firm by several times the Court’s standard fees would metastasize the statutory entitlement into something absurd,” the filing says.
The response concludes that McGuiness has two choices: petition under 10 Del. Code § 3925 to be provided counsel by the Office of Defense Services at the expense of the state or proceed with her own private counsel at her own expense.
“It is sadly consistent with [McGuiness’] charged conduct that she would demand the taxpayers spend extra money when the law clearly commands a less profligate alternative,” the response says.
Sanctions sought, too
Wood said in response that he plans to file an amendment to a previously filed motion for sanctions against the DOJ that will “speak for itself.”
In McGuiness’s motion for sanctions, Wood alleges that Attorney General Kathy Jennings threatened her right to a fair trial in comments she made during her announcement of the indictment.
The alleged violation occurred after a reporter asked Jennings whether McGuiness had responded to the charges against her.
Jennings responded that prosecutors from the DOJ “reached out to the auditor on several occasions” and that McGuiness “has declined to speak with them.”
Wood claims Jennings’ comments were prejudicial and that he advised McGuiness not to communicate with investigators — which she has a right not to do.
He said “beyond any doubt that evidence about the defendant’s choice to exercise her constitutional rights to silence and against self-incrimination will be inadmissible at trial.”
Now, Wood wants the court to rule that Jennings’ comments violated the Delaware Lawyers’ Rules of Professional Conduct. If successful, the motion would impose sanctions to prohibit Jennings and other DOJ prosecutors from making further prejudicial comments outside of court.
The judge is expected to rule on McGuiness’ motion and the DOJ’s response in the coming days.
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