Greetings from Tampa, Florida, where we’re on the scene for an unusual and potentially very entertaining evidentiary hearing in a fraud lawsuit that’s been derailed by accusations of unethical conduct.
We’re anticipating that it will be a fairly grueling day for former Scientologist Brian Culkin as he’s probably going to be something of a hostile witness to both sides that want to question him today. And there’s a lot at stake — Scientology is asking the court to disqualify Ted Babbitt and Ron Weil, the attorneys for Luis and Rocio Garcia in their lawsuit that accuses the church of fraudulent behavior.
But first, we want to warn readers that we’re up against some difficult conditions today which will definitely affect our ability to provide live coverage. According to federal court rules, we can’t bring our equipment into the courtroom, and that means we’ll be dashing across the street to type up our handwritten notes at every break. That will likely result in long periods of inactivity punctuated by rapid updates, and we know that can be frustrating. But we’ll do our best to convey what’s happening so that you get a real sense of the action.
So now, we’re going to provide a quick history of this case so new readers can get up to speed. In January, California residents Luis and Rocio Garcia filed their lawsuit against the church, saying they’d been defrauded by Scientology’s fundraising schemes and by a sham refund policy that kept them from getting any donations back. They’d given around $400,000 to the church in donations as high-level members, and they say they were particularly rooked in schemes to raise money for the “Super Power Building” — a project that has raised somewhere around $200 million for a project that still hasn’t opened 15 years after it first broke ground. Scientology denied the allegations, and said that a federal courthouse was an improper venue for arguing over refunds; it asked Judge James Whittemore to decide that the Garcias should submit to church arbitration and the lawsuit should be dismissed. Whittemore hasn’t made a decision on that motion, but it’s hard to believe that he’d go through with today’s evidentiary hearing if he was only going to throw the case out of court and force the Garcias to submit to Scientology’s in-house arbitration.
So what is today’s hearing about? Well, as we’ve seen in so many other cases (including the one going on in Texas), one of Scientology’s classic delaying tactics is to move to disqualify the attorneys on the other side — usually a rare move in non-Scientology litigation.
In this case, Scientology has asked Judge James Whittemore to disqualify Garcia attorneys Ted Babbitt and Ron Weil because they employed an attorney named Robert Johnson to locate and interview possible new plaintiffs for the lawsuit. Johnson worked on matters for the Church of Scientology from 1982 to 1998, and so Scientology today is saying it was improper for him to work on Luis Garcia’s lawsuit against the church. The Garcia team answered back that Johnson’s knowledge about Scientology was general, not specific to the Garcia matter, and that he had only helped recruit new plaintiffs, and had not contributed to any of the litigation in the Garcia suit.
Central to the church’s motion to disqualify Babbitt and Weil was a declaration by former church member Brian Culkin. The church believes that Culkin witnessed Johnson working on the Garcia litigation itself, but since the church introduced his declaration, Culkin has proved to be an unwilling participant — he even hired Ray Jeffrey to be his attorney, the San Antonio lawyer who is giving Scientology fits in the Monique Rathbun harassment lawsuit.
So one thing we’ll be watching closely today is how much the church and the Garcia team each get out of Culkin. Will the church be able to prove that Babbitt and Weil made improper use of Johnson? Or will the Garcia team show that Johnson was used only tangentially, and that his knowledge of decades-old Scientology lawsuits does not give the Garcia team an unfair advantage.
Another person who may be important to today’s hearing is former Scientology spokesman Mike Rinder, who had been helping out the Garcia team and Johnson to find new potential plaintiffs. Based on a motion filed this week by the church, it’s pretty obvious that the church thinks Rinder is central to its case. And if they put him on the stand, we could be in for some pretty entertaining testimony. OK, enough preliminaries. Set your comments to “Newest” for best results, and watch below for live updating — when we can get out of the courtroom and provide you with information.
Posted by Tony Ortega on October 3, 2013 at 07:00
E-mail your tips and story ideas to firstname.lastname@example.org or follow us on Twitter. We post behind-the-scenes updates at our Facebook author page. Here at the Bunker we try to have a post up every morning at 7 AM Eastern (Noon GMT), and on some days we post an afternoon story at around 2 PM. After every new story we send out an alert to our e-mail list and our FB page.
NEW LIVE POSTS WILL APPEAR BELOW HERE….
Good morning, Bunkerites. First piece of news this morning. When we landed in Tampa yesterday, we got the news that Judge James Whittemore had denied Scientology’s motion for a continuance. So we will have a hearing today.
Also, we’ve been told that at the federal level, judges tend to take charge of these things, so we may see Whittemore putting witnesses on the stand, questioning them, and getting things done. A member of his staff tipped us off that the man is not a big fan of breaks in the action. That’s bad for us, but it means more gets accomplished, we suppose. We’re on our way now to get our equipment set up across the street from the courthouse.
And we’re in place. We’re about to walk over to the courthouse and go upstairs. We’ll only have a pad of paper and a pen with us. As soon as we can get a break, we’ll run back to our mini-Bunker setup to get you some updates. Until then, please be patient.
We’re now out on lunch break after what appeared to be a pretty disastrous morning session for the Church of Scientology in its attempt to get the attorneys for Luis and Rocio Garcia disqualified.
Judge James Whittemore is not amused. OK, we have an hour to get back into the courtroom. So we’ll start at the beginning…
Courtroom 13B of the Tampa federal courthouse is a very large space, but with only a small portion for observers. Once again as in Texas, the defendant’s side of the room is filled with folks in dark suits.
We count 15 suits, just like in Texas (not all are attorneys). Michael Hertzberg is here, Monique Yingling, Eric Lieberman, Kendrick Moxon. And their lead attorney here today, Wallace Pope.
On the plaintiffs’ side, Luis and Rocio Garcia are here, who we are meeting for the first time. Their attorneys Ted Babbitt and Ron Weil are here, with two associates. Also Robert Johnson, the attorney at the center of the dispute is here. And Mike Rinder.
And hey, it’s Brian Culkin! Wow, we wish we could squeeze into a suit that stylish. The yoga instructor is looking quite fit. It’s nice to finally meet him.
Judge James Whittemore has entered the courtroom, and he lets us all know right away that he is all business this morning.
“I have read everything you have submitted,” he says to both sides. “I don’t want a bunch of rhetoric. Keep your case succinct.”
At this point, before he starts to present the church’s case, Wally Pope asks to “invoke the rule” — in other words, ask potential witnesses to leave the room. A simple request, you’d think. But Whittemore challenges Pope on it. Which authority is he appealing to in order to remove witnesses?
Pope appears stunned. He indicates that he thought it was an assumed power.
Whittemore: “Well, we learn something every day.”
Pope explains that he doesn’t want Mike Rinder and Robert Johnson — who have worked together on the Garcia team — to be in the room at the same time when they are testifying.
Whittemore is getting increasingly impatient. “What in the world do they not know about each other at this point?” he asks.
But Babbitt indicates that he has no objection, and the judge relents, allowing the witnesses to leave.
But the Judge isn’t through setting a “tone,” as he calls it…
“Let me set a tone,” Whittemore says to both sides. “The burden on the defense is high,” he continues, and again says he wants no rhetoric. This isn’t a trial. There’s no jury to play to.
We’re only about five minutes into this thing and the situation seems pretty plain to us: Whittemore thinks the church’s case for kicking out these attorneys is a joke, but he’s going through the motions of an evidentiary hearing in order to fend off an appeal. And he’s ready for this thing to be over before it’s already begun.
If we were Wally Pope, we’d be sweating bullets. And we would not want to waste a second with the time the judge has allotted him — which is only an hour and a half.
So what does Pope do? Squander time like it’s going out of style.
Wally Pope calls his first witness: former Scientology spokesman Mike Rinder.
Hey, this should be exciting, right? Mike Rinder, formerly one of the top members of the church, and one of its biggest critics in the last few years, and now the church has him on the witness stand and under oath? Fireworks, right?!
After asking Mike some basic information about himself, Pope begins to read from documents in a giant binder of exhibits. Do you remember this document? Did you sign this? Did you refer to yourself as the senior official over the church’s litigation?
Yes. Yes. Yes. Yes.
With excruciating detail and a glacially slow pace, Pope establishes that Rinder was in a position to know a lot of the church’s legal secrets over many years. Really, there was only one thing that Rinder disputed…
Church attorney Wally Pope wants Mike Rinder to admit that the reason people are hiring him to consult on legal cases is that he was privy to attorney-client conversations in the years he oversaw Scientology litigation.
But Rinder says he’s in demand for his total knowledge of Scientology, something he got into as a kid. Attorneys, like the rest of us, have a hard time negotiating Scientology’s lingo and policies, and he can help them get through it.
Clearly, Pope is trying to establish that Rinder was a sort of quasi-lawyer, and was privy to secret info that could help the Garcias unfairly. And in particular, Rinder was involved with an attorney who helped him develop an enrollment form that Scientologists sign, and that is an issue in this case.
By introducing what he knew about that enrollment form — that it was a sham which was designed to keep Scientologists from being able to get a refund — Rinder was violating the attorney-client confidentiality he had with the lawyer who helped him develop the form, wasn’t he?
Was it privileged communication? I guess so, Rinder said. But then he explained that he and the attorneys weren’t the only ones who knew about it — it was David Miscavige who also was included in those talks.
We see what you did there, Rinder. He managed to get into the record that David Miscavige was well aware that Scientology’s enrollment form is designed to keep members from getting refunds.
You were a dedicated Scientologist, weren’t you? Yes. And you protected the information of the church? As a Scientologist I did, yes, Rinder answered.
So now Pope began bringing up non-disclosure agreements that Mike Rinder had signed as a Sea Org member as early as 1980. Rinder and Marty Rathbun have each told us that they signed such agreements over the course of their careers, but it hasn’t stopped them from speaking out since they left the church. And the church, they both point out, has done nothing about it.
But now Pope painstakingly went through decades-old agreements that Rinder signed.
The agreements required that Rinder would never disclose information about the church. “You would agree that ‘never’ has not yet expired?”
“I agree,” Rinder answered.
And now, an interruption by Judge Whittemore:
“Why are we reading from documents? Let’s get to the heart of the matter, please.”
What are the relevance of these old agreements, the judge asks, and it’s pretty obvious that well into the hearing now, Pope hasn’t really scored a single substantive point yet. MIKE RINDER ISN’T A LAWYER. It just doesn’t matter what information he brings to the Garcia team, our friend Scott Pilutik had pointed out to us earlier.
“Gentleman, this is about disqualifying attorneys…That’s why I tried to set the tone at the start,” Whittemore said.
I will move on, your honor, Pope said.
Whittemore: “I don’t mean to be sharp, but this is a very delicate matter.”
Yeah, that’s true judge. But you have to understand, SCIENTOLOGY TRIES THIS TACTIC EVERY SINGLE TIME. Oops. Sorry for the interruption. OK, back to the action…
At this point, even Wally Pope has to acknowledge how bad things are going, and he was reduced to this…
“Your honor, I was sincere in filing this motion.”
And even Whittemore has to take pity on him: “I don’t have a problem with the filing. But I want to get to what’s important.”
So Wally Pope then does the right thing and…
…pulls out another document to read from.
Amazingly, Pope goes right back to wasting time reading from documents, and plodding along with Mike Rinder on the stand.
He now focuses on what Mike Rinder has been getting paid. As a consultant, he’s been getting 175 an hour, not to exceed 5,000 a month to help Babbitt and Weil in the Garcia case.
Did you reveal to them that you had signed non-disclosure agreements with the church? Rinder said it had probably come up, but he’s been talking publicly about the church for years, and Scientology has done nothing about it. And the church had never given him copies of the agreements he had signed.
Pope now tries to score points against Rinder, which might have been really cool if Rinder was actually on trial or something: “So your attorneys were willing to pay you 175 an hour for information you’d already put on line?”
Rinder: “Oh, absolutely,” he says, and explains that the Scientology lingo, the policies of the church, these are things attorneys are happy to pay him to help them understand.
And if Pope wanted to make it look like Rinder was somehow fleecing attorneys at a huge rate, he really flops when Rinder then explains that since the disqualify motion had been filed in May. The case has been at a standstill since then, and he hasn’t made a dime from the Garcia case in the last four months.
And you prepared for this hearing. Will you be compensated for that? Pope asks.
No, Rinder answers.
And for some reason, Pope again takes us into Rinder’s billing and not being paid. WHY, WALLY, WHY? WHAT IS THE FREAKING POINT?
Adding up all of Rinder’s billing from August 2012, it comes to 21,450, is that right? Yes, Rinder says.
Is Wally trying to figure out who’s buying lunch?
When Pope begins boring into another document, Whittmore interrupts again.
I don’t think there’s any dispute that he’s worked for this lawyer for months, Whittemore says. I will remind you that you have an hour and a half. You need to show the confidential information that went from him to the lawyers, and you haven’t even begun to do that.
OK, Pope says, and he goes back, once again, to the document. It’s a privilege log, which describes emails that Rinder sent to the attorneys. BUT THE DOCUMENT DOESN’T CONTAIN THE INFORMATION IN THE EMAILS THEMSELVES.
Wally Pope is apparently expecting Judge Whittemore to ASSUME that the emails contain confidential information based merely on their subject titles.
Rinder: “You don’t want me to tell you what they are?” he says, with an unbelieving smirk.
Pope: “Well, they’ve been alleged to have been confidential.”
And that’s it! That’s the end of the Church of Scientology’s opportunity to question Mike Rinder under oath in a court of law! Oh my.
Ted Babbitt then had a chance to cross-examine Rinder, and you can imagine how it went. Did you give us confidential info. No. Did you talk to the press about these things before you talked to us. Yes. Has there been any enforcement of the non-disclosure agreements that you signed. No.
Tell us about that enrollment form that you exposed in a previous case. Why did you do that?
I didn’t think anyone would actually try to sue over it, but when they did, I felt I had to speak up about what I knew, Rinder answered.
Babbitt himself ran into the Whittemore buzzsaw when he tried to bring up the disqualify motion in the Monique Rathbun case getting denied.
“Doesn’t matter. I don’t care what’s in the past,” the judge said, interrupting Babbitt.
After a brief redirect, from Pope (Are you saying you’ve decided what is attorney-client privileged information and what isn’t? Yes.) then Mike Rinder stepped down.
Now it was time for Robert Johnson to take the stand.
Robert Johnson worked as an attorney for the church from 1982 to 1998, he said in his affidavit. But that wily Wally Pope now has billing records which shows he was still getting paid into the summer of 2000!
And didn’t the Garcias give 144,000 to the Super Power project between 1998 and 2000? J’accuse!!
Mr. Johnson you are now representing the Garcias in their attempt to get money back that they donated to CSRT [a church trust] while YOU represented CSRT, is that correct?
GET THE LEG CHAINS!
Yeah, sure, Johnson admitted. But he denied that he’d made the 1.8 million the church said he billed over his career as an attorney.
Johnson and Pope then spar for a while over what he really made versus what his firm made.
And again, we are wondering, when David Miscavige is paying for 15 suits over there, is no one able to clue Pope in to stick to the point?
Pope also tried to get Johnson to say that he’d worked refund cases. And that while he worked on the purchase of land for Super Power, there had been delays.
And isn’t the Garcia case about refunds, and about the delay of the Super Power Building!
BRING IN THE IRON MAIDEN!
Well, no. Robert Johnson had a very laconic, drawn-out way of answering questions, and for everything that Pope tried to stick him on, he gave lengthy responses that really, the truth was more complicated than Pope was making it out to be.
Much of the attention during Johnson’s testimony was about the biggest refund case he handled, Williams v. Scientology, but here, Johnson scored serious points. In Williams, the case was about a dentist who was hoodwinked by WISE — a Scientology front group that preys on dentists and chiropractors — and he and his wife were suing because they felt they’d been targeted and defrauded and had never wanted to be part of Scientology. (At least that was what we took from the testimony.)
The Garcia case is so completely different, we can’t believe Pope was getting into Williams at all. The Garcias were loyal, longtime Scientologists who had given hundreds of thousands in donations, but eventually realized that the unfinished Super Power Building was being used as a shill to get their money.
And that’s the point, Johnson and Babbitt said on Johnson’s cross — Just because Johnson used to work for Scientology back in the day, and even though he’s switched sides, the Garcia case is so totally different on the facts than anything he ever worked on in the past, it was clearly not a violation of Florida rule 4.19 for him to work on the Garcia case. (Hey, that’s what Scott Pilutik told us!)
We’re running out of time and we need to get back to court. We’ll just tell you about our favorite moment during Johnson’s testimony.
Pope had tried to make the parallel that Johnson had represented the church when there were delays purchasing the land for the Super Power building, and delays in Super Power are also involved, somewhat in the Garcia case. Babbitt had denied that, saying that the Garcias don’t want their money back because the building is delayed, but because the building was used fraudulently to take their money.
“The Garcia case is about the building as a shill,” Babbitt said.
And Whittemore asked: “When you say a ‘building,’ do you mean a building?”
Oh judge, if you only knew.
OK, out of time. Have to get back to court. Back as soon as we can!
We’re back! OK, lots to get to. Where were we?
Oh yes, Wally Pope was questioning Robert Johnson, the attorney at the center of the controversy. Scientology attorney Wally Pope was trying to advance the line that because Johnson had worked for Scientology entities from 1982 to 2000, he had surely been told secrets that he shouldn’t reveal because of attorney-client privilege. But Johnson continued to say that the knowledge he had used for the Garcia case was purely general.
After a ten minute break, it was Ted Babbitt’s turn to cross-examine Johnson. Again, the issue of a big case that Johnson had handled for Scientology, involving the dentist Williams, became the focus. Babbitt and Johnson talked about how different the facts were there than they were in the Garcia case.
They then talked about the Super Power Building. Wally Pope seemed to be making the case that when Robert Johnson represented the church in the purchase of the land for the building, there had been delays. And weren’t delays to the SP Building central to the Garcia case? Well, after Johnson stopped representing the church, it was Wally Pope who took over representing Scientology in matters related to the Super Power Building. And Babbitt used that for a fun little jab…
“If the delay to the building became an issue in this case, who would be a more likely material witness — you, or Mr. Pope?”
Hardy har har. But we wondered if Babbitt should keep in mind Judge Whittemore’s impatience for rhetoric. Watch it, dude!
Babbitt and Johnson then discussed the Florida Bar rule that is central to this motion — rule 4-19. Johnson said that he had reviewed it before getting involved in the case.
He and Babbitt then discussed how he never went near violating the rule. He hadn’t disclosed anything confidential to the other attorneys. He was only referring to information that is available widely.
“Information that Mr. Ortega has widely published,” he said as an example.
Oops! There we go again, getting the Bunker prime time exposure. Yowza.
On re-direct of Johnson, Wally Pope asked a question that he apparently didn’t know the answer to. (Isn’t that a lawyer no-no?)
He asked a question that was apparently supposed to get Johnson to admit that he’d only switched sides against one client — Scientology.
“Were there any other clients that you’ve taken an adverse position to?” Pope asked.
Johnson thought about it for a moment, and then said yes, there were. “Government entities.”
Of course! Jeez, what else is the point of representing government agencies except for later litigating against them in court! Pope should have known that.
Well, that was the end of Robert Johnson’s tenure on the witness stand, and now Pope was running out of time. Who was he going to call? Are you ready?
No, it wasn’t Brian Culkin. Wally Pope called Peter Mansell, an executive at Flag, so he could answer a few questions to authenticate some documentation of Johnson’s billing history.
The only interesting moment with Mansell on the stand was when Babbitt, on cross-examination, asked him about the photo of the Anon that was included in Mansell’s affidavit — you know the one, where an Anon is holding up a sign asking people to call Ted Babbitt to become part of the lawsuit. Babbitt got Mansell to admit that he had no way of knowing if Lynn, the Anon, had ever talked to Babbitt, or if Babbitt had anything to do with that promotion of the lawsuit (which he said he didn’t). Otherwise, Mansell was a bust.
And then we broke for lunch.
When we came back, it was the Garcia team’s turn.
So with the church’s case finished — and yes, they never called Brian Culkin, whose declaration seemed central to their motion when it was first filed — it was now Babbitt and Weil’s turn to defend themselves from disqualification.
Babbitt initially asked the judge if they needed to present testimony at all. Perhaps their affidavits would speak for themselves. But then Babbitt took a hint from Whittemore and took the stand himself, with Weil asking the questions.
Babbitt briefly described his 48-year career, and that he’d never been the subject of a disciplinary action. That he would never allow someone like Johnson or Rinder to share attorney-client information with him. Rinder has merely helped him locate documents that are helpful. Johnson has just interviewed potential new clients.
One interesting tidbit: Babbitt says he was involved with the case because a previous attorney had pulled out, worried that taking on the church and its litigation tactics would subject him to harassment.
Not everyone, in other words, is willing to take on a case like this, Babbitt was saying. Yeah, and look where it got him!
Wally Pope then cross-examined Ted Babbitt, and tried to get him to admit that with so much confidential information that Robert Johnson and Mike Rinder were exposed to, didn’t it make it difficult for him not to receive some of it? No, Babbitt said, and he explained how he worked, and again, what he was using these people for.
Ron Weil then took the stand and largely went over the same ground that Ted Babbitt did.
And that was it. Their side of the case was over.
And then Judge Whittemore said, “Let’s discuss this.”
Then he pointed out something rather interesting. Ted Babbitt and Ron Weil are the Garcia attorneys of record, and Scientology’s motion is asking Whittemore to remove them from the case. But the REASON for doing so is based on what Robert Johnson, another Garcia attorney, had done previously for the church.
But if he agrees to the motion, and removes Babbitt and Weil, that won’t affect Robert Johnson. I can’t remove him from the case, Whittemore pointed out.
Um, hey judge, you have a point there!
Your honor, you could enjoin Mr. Johnson from the case, Wally Pope helpfully suggested.
I don’t know of any authority that would let me do that, the judge answered.
It was an interesting technicality, and Whittemore explained that it had only dawned on him this morning.
He then asked Pope to sum up his argument for the motion. He largely went over the same ground, that Johnson and Rinder had served the church for so long, they had to have detailed, confidential information that would be imputed to Babbitt and Weil. And even if they hadn’t divulged that information yet, there was an “appearance of impropriety,” Pope said.
For all those reasons, Wally wrapped up, they should be disqualified.
It was then Babbitt’s turn, and he smartly reminded the judge what Whittemore had said earlier — that there was a high burden of proof for something as serious as a disqualification motion.
And Babbitt pointed out that Rule 4-19 required two things. First, that the lawyer switching sides had to be involved in a case that was the same, or “substantially similar” to the case he’d previously handled. And if that was the case, then the second test was that he had actually imparted confidential info.
But the work Johnson did for the church more than a decade ago was NOT substantially the same, Babbitt said. And he hadn’t imparted confidential info.
“They have failed to meet their burden,” he said.
This matter has been an extraordinary distraction, involving hundreds of hours of work and a day in court, Babbitt pointed out. “This is why most attorneys don’t take on clients like this,” he said to finish up.
Then Pope came back with a real howler.
Even though Scientology had just spent six months trying to get Ted Babbitt and Ron Weil kicked out of a case for unethical behavior, here’s what Pope said as his final word…
It was never our contention that Weil and Babbitt conspired to do something wrong. Our position is that Rinder and Johnson know so much, they couldn’t help but give confidential information to two really fine attorneys.
Oh sure, NOW you kiss their asses, Wally, after costing Luis and Rocio Garcia untold thousands in legal fees. Keerist almighty.
And that was it. Now, it was Judge James Whittemore’s turn.
And he sat there, thinking. And thinking.
For like five minutes.
“I’ll make some general observations,” Whittemore began.
If it were not for the professionalism and civility of the lawyers and their reputations involved here, I would not have conducted this hearing, he began.
You have done what you should do in this situation, he told them, and I appreciate that. Mr. Pope, Mr. Potter, Mr. Babbitt, Mr. Weil. Mr. Fugate, these are good lawyers. I heard an appeal one time by Mr. Pope and he seriously whipped my fanny, he added. He and Mr. Fugate, he pointed out, had shared clients or something.
Anyway, the point he seemed to be making, at least for this observer was, listen, Wally, I know you work for a complete dickweed who wants you to file bogus crap like this, but I appreciate that you did what you had to do, and you all conducted yourselves properly in my courtroom.
That was our reading, anyway..
The words Whittemore actually used were that the motion was an “unpleasant and distracting matter.”
In the course of this hearing, no one has mentioned Mr. and Mrs. Garcia. It is their case. They chose their lawyers to represent them. I didn’t want it to be overlooked that that’s where this case starts, he pointed out.
A disqualification motion is a drastic remedy which should be resorted to sparingly, he added.
He then pointed out that there was no dispute that Robert Johnson had represented the Church of Scientology for a long time, from 1982 to 2000. But the real bulk of that work ended earlier, in 1998. And of course, as an attorney, he would have received confidential information.
“That does not necessarily mean that years and years later that information was used to the disadvantage of a former client,” he said.
So the judge then took a look at rule 4-19 to see if Johnson violated it.
“I’m deliberating out loud,” he said, and every person in the room was on the edge of their seat.
First, he pointed out, Johnson had clearly represented a client he was now adverse to. But was the current case “substantially similar” to the cases he’d handled for the church?
“Clearly it is not,” the judge said.
The Garcia case and the earlier case involving the dentist were just not the same at all, he pointed out.
“There’s been no evidence presented that these prior representations have anything to do with the Garcia case.”
“This is not a case of a lawyer simply changing sides.”
We couldn’t help taking a peek over at Monique Yingling. Nope. No indication that this thing was going down the tubes…
The judge continued: There was no evidence that Robert Johnson had breached confidentiality. There was no evidence that confidential information is being used to the disadvantage of a former client.
Scott Pilutik had previously told us he was interested to see if the judge would consider the Morgan Stanley v. Solomon case, and Whittemore did refer to it, again saying it helped show that Johnson acted properly. And he went through another precedent case, Hernandez.
But now, Whittemore smartly cushions the blow for Wally Pope, saying that he believed that Wally filed the motion in good faith.
“Whatever skepticism I may have had when I first read the motion has dissipated. I can understand a former client’s concern.” Well, if he thinks that’s going to please Miscavige…
There’s been no evidence of disclosing confidential information presented. There is no smoking gun. I don’t see conflict.
Whittemore said he didn’t even see an appearance of impropriety.
“A closer question arises about Mr. Rinder,” he said.
Rinder, he pointed out, had been in such a long relationship with the church, more than 25 years.
But it seems to me, the judge said, his acrimonious departure indicates that there’s no impropriety. He’s adverse to them, and he’s been adverse to them for years. He’s being paid as a consultant, not as a material witness.
Certainly Rinder had access to confidential information, but there was no evidence that Robert Johnson, Ron Weil, or Ted Babbitt had engaged in a conflict. And THEY’RE the lawyers. It’s up to them to take steps that privilege is not violated. And he is satisfied that they took the proper steps to make sure that such a violation did not occur.
Mr. Pope, are there any legal arguments that I left out?
Wally: “Your honor, your oral pronouncements sound pretty thorough to me.”
Yes, the man knew when he was beaten.
And then, from the judge, came the words…
“MOTION WILL BE DENIED”
And it was over.
That was about as different as possible from our experience in New Braunfels, Texas. But in each case, we watched judges who took these disqualification matters seriously, and in both cases knocked them down.
By the time Judge Whittemore had announced his ruling, Brian Culkin had already left the courtroom. He had made the trip for nothing.
No, it was not for nothing. We give him credit for showing up. And it is also to his credit that he was now so averse to the church, it didn’t even call him to the stand.
As for the Garcias, they looked relieved.
And now, we need a drink. We hope you enjoyed our reporting from the court here in Tampa, and we’ll see you tomorrow.