UPDATE: After this story was published, Judge Kelley posted an order in the docket indicating that she had changed her mind about accepting Gamal Abdelaziz’s conflict waiver. She said that “on further reflection” she needed additional information about whether the University of Southern California had provided Nixon Peabody with informed consent to client conflicts.
(Reuters) - U.S. Magistrate Judge Page Kelley of Boston agreed Tuesday to accept a conflict waiver from Gamal Abdelaziz, who prosecutors say paid a bribe to secure his daughter’s admission to the University of Southern California. Her decision will allow Abdelaziz’s lawyers at Nixon Peabody to continue representing him, despite the firm’s representation of USC in unrelated corporate, healthcare, intellectual property and licensing matters.
Both the Boston U.S. Attorney’s office and Abdelaziz defense counsel Brian Kelly of Nixon Peabody declined to comment on the judge’s decision. Abdelaziz has pleaded not guilty to the government’s charges.
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Prosecutors in the college admissions case have asserted that three big law firms representing parents accused of conspiring to pay bribes to get their kids into USC – Nixon Peabody, Ropes & Gray and Latham & Watkins – are conflicted because they also have client relationships with the university. USC, which the government considers a victim of the conspiracy, has refused to waive the firms’ conflicts. In fact, according to the government, it was the university that alerted prosecutors to its client relationships with Nixon, Ropes and Latham.
In June, the government asked for so-called Foster hearings (based on a 1972 decision by the 1st U.S. Circuit Court of Appeals in U.S. v. Foster, 469 F.2d 1) to ascertain whether the Nixon, Ropes and Latham clients were fully aware of the implications of the firms’ relationships with USC. Among other things, the U.S. Attorney’s office argued that USC officials are likely to be witnesses against the big firms’ clients and will have interests directly adverse to the defendants if the university seeks restitution after any convictions. Prosecutors said that the firms might have to be disqualified from the college admissions case if “the conflicts cannot be adequately addressed.
Judge Kelley agreed to hold Foster hearings on potential conflicts involving Ropes college admissions client Douglas Hodge, Nixon college admissions client Abdelaziz and Latham clients Lori Loughlin and Mossimo Giannulli. The Hodge hearing was on Monday, the Abdelaziz hearing was Tuesday, and the Loughlin hearing is slated for Aug. 27. Hodge, Loughlin and Giannulli have also pleaded not guilty.
Like Abdelaziz, Hodge signed a conflict waiver, but the judge declined to decide at Monday’s hearing whether to accept it. According to the docket, she requested additional briefs on USC’s consent to the conflict and other issues. Ropes & Gray partners did not respond to my email requesting comment.
Nixon Peabody, Ropes and Latham have offered similar, though not identical, responses to the government’s claim that their client relationships with USC might require their disqualification from the college admissions case.
All pointed out, for instance, that their clients have a Sixth Amendment right to the counsel of their choice. All downplayed the prospect of an actual conflict with USC, both because testimony from university officials will not be crucial to their clients’ defenses and because all have engaged conflicts counsel to handle USC witnesses. All of the firms said they had apprised the college admissions defendants about their relationships with USC, had obtained consent from the parents and had set up an ethical wall to assure that no lawyers who represent USC will be involved in the parents’ cases.
But Nixon Peabody, as the government noted in its brief replying to the firms’ filings, was more feisty than Ropes and Latham in addressing prosecutors’ hints at disqualification, which Nixon called “a transparent attempt to meddle with the defendants’ constitutional right to counsel of their choice.” The firm also received permission to file an additional brief addressing what it called a “particularly troubling” disparity in prosecutors’ handling of purported conflicts. Quinn Emanuel Urquhart & Sullivan represents a parent who pleaded guilty to fraud in connection with his child’s admission to USC. Quinn Emanuel has a client relationship with USC. Yet the government, Nixon argued, has not called for a hearing on Quinn Emanuel’s conflict.
“The conclusion is inescapable,” Nixon said, “that the government’s motive in seeking to disqualify Nixon, Ropes and Latham is to ‘infringe upon the right to counsel of choice to gain a tactical advantage.’” (The government has said that it did not learn of Quinn’s client relationship with USC until after the firm’s client in the college admissions case had entered a guilty plea.)
Nixon Peabody also invoked an advance client waiver it obtained from USC, unlike Latham and Ropes. As you know, these advance waivers – in which firms obtain clients’ consent to potential future conflicts as part of their initial engagement agreements – are controversial. Whether they’re actually enforceable isn’t clear, as the government argued in its reply to responses from Nixon and the other firms. Judge Kelley has not entered an order in the college admissions docket that reflects why she is permitting Nixon Peabody to continue to represent Abdelaziz, but it’s possible that USC’s advance conflict waiver was a factor.
The magistrate has already entered several orders allowing defense firms to represent more than one client implicated in the college admissions scandal, even though prosecutors questioned whether those conflicts might also be unresolvable. We’ll have to see what Judge Kelley ultimately decides to do about Ropes and Latham clients, but at the moment, it appears that the government’s conflicts gambit has fizzled.
The views expressed in this article are not those of Reuters News.