Judge rejects Rosses' lawyer
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No Comments [ Add Comment ]By Jesse Fruhwirth
Standard-Examiner Davis Bureau
R
uling cites potential conflicts of interest in disqualification
SALT LAKE CITY -- John and Susan Ross' assets may be frozen, but they may have to start shopping for a new lawyer anyway.
The U.S. Attorney's Office on Monday successfully argued for disqualification of Salt Lake City defense attorney Paul Gotay. Gotay represented the Layton couple before the grand jury that indicted them.
They have 10 days to appeal the ruling.
The Rosses face 47 counts of fraud, money laundering and theft related to the government's accusation that they defrauded the Davis School District of $4.3 million over a five-year period.
Federal Magistrate Judge Brooke C. Wells ruled in favor of disqualifying Gotay from representing the Rosses. She said Gotay faces three conflicts of interest in the trial.
Representing both the Rosses could potentially degrade his representation of each of them individually, she said.
Also, Gotay represented Terry Applegate and Keith Evans -- the owners of R&D Consultants Inc. -- before their appearances in front of the grand jury that eventually indicted the Rosses, but not Applegate or Evans.
That action makes Evans and Applegate clients of Gotay, and they will be called as witnesses by the government, Wells said. Therefore, he would be required to scrutinize and cross-examine his own clients.
Additionally, since he represents the individuals that the government accuses of acting as a front for the Rosses, he himself could potentially be called as a witness by the government. The indictment argues that R&D acted as a shell of the Rosses in the scheme to defraud the school district of $4.3 million.
After the hearing Gotay said he has not decided whether he will appeal the ruling.
"I will do what's in the best interest of my clients," he said.
Gotay's disqualification puts the Rosses in a tough spot. Their assets have been frozen by the government -- pending the criminal trial -- and now their attorney who said that he was working without pay has been removed.
Based on the judge's decision Monday, the Rosses may be required to retain separate lawyers, possibly public defenders, to avoid conflicts of interest that Wells says an attorney would face in representing both of them.
Prior to the hearing, Gotay submitted a letter from 2005 signed by Applegate and Evans in which they granted him permission to represent the Rosses as well as themselves. He said their knowledge and acceptance of the situation justifies his continued representation of all parties.
"They permitted me and allowed me to represent all parties," Gotay said. "They have Ph.D.s. They know what a conflict of interest is."
Wells said Gotay's argument was too narrow.
"Mr. Gotay, the allegations related to conflicts of interest are more diverse ... than just the distinction from R&D," Wells said. "Theirs are not legal opinions. That (signed letter) ...doesn't say that there wasn't a conflict of interest before the indictment. It says that these people believed there wasn't a conflict."
Prosecutor Barbara Bearnson filed the motion to disqualify Gotay last week. She said Gotay's conflicts are severe.
"The U.S. Attorney's office rarely files motions to disqualify, but we have an obligation to do so when we see severe conflict of interest," she said.
Gotay disagreed and in court said the argument that a defense attorney may be called as a witness at trial is an "orthodox" method of removing a lawyer from a case.
Bearnson said she believes the Rosses should seek separate lawyers. Their court proceedings, however, would continue in tandem, she said.
Bearnson also mentioned two money accounts of the Rosses during the hearing. One account, containing $381,000, was transferred into Gotay's name, she said. The indictment, filed in November, makes note of an account in the name of "P.G." in the amount of $381,000.
Gotay said that account was the couple's lifetime retirement and savings account. He said his legal fees were intended to be drawn from that account, but it has been frozen by the government as well.
"Those funds have been frozen. I am here pro bono (without pay) because my clients cannot afford representation," Gotay said.
Gotay argued the U.S. Attorney's Office is trying to gain leverage by freezing the Rosses' assets and disqualifying their legal representation.
At the Rosses initial appearance in court, Gotay told Wells that he intended to file a motion to ask her to recuse herself from the case. He said Wells had already made up her mind to disqualify him from the case.
Gotay never filed that motion.
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