Judge Emmet Sullivan, the Obama appointee overseeing Flynn’s case in Washington, D.C., scheduled a status conference for 11 a.m. on Aug. 27 after Flynn’s new legal counsel said his former Covington & Burling attorneys had not turned over all of the files related to his case.
Sullivan also said he would invite a legal ethics official to the hearing to explain the applicable rules:
“In light of the representations made by defense counsel regarding the delay in receiving the client files, the Court hereby gives notice to the parties of the Court's intent to invite Senior Legal Ethics Counsel for the District of Columbia Bar to attend the status conference and explain on the record the applicable District of Columbia Rules of Professional Conduct,” Sullivan wrote in an order Tuesday.
This action by Judge Sullivan is being taken in response to the statements made by Flynn's new lawyers.
In the filing by Flynn's lawyers dated 7/11/19 (DEFENDANT’S RESPONSE TO THE COURT’S ORDER OF JULY 9 AND GOVERNMENT’S FILING OF JULY 10), page 2, paragraph 1, Flynn's lawyers stated:
1. We do not yet have the entire file from prior counsel, and Covington & Burling, LLP (“Covington”) (former counsel) has advised it will be several weeks before all the information can be transferred.
Judge Sullivan is taking this action, sua sponte--on his own initiative. In other words, while Flynn's lawyers only drew attention to the situation and didn't ask for any particular action from the judge, upon reflection Judge Sullivan decided to get involved in a very marked manner--summoning Senior Legal Ethics Counsel for the District of Columbia Bar to attend the meeting. The Covington & Burling lawyers are ordered to attend, clearly to explain their conduct in the light of professional and ethical responsibilities. This appears to be a clear shot across the bow to Flynn's former lawyers to get the transfer of files done ASAP. Here's the judge's order in its entirety:
MINUTE ORDER as to MICHAEL T. FLYNN. In view of the parties' responses to the Court's Minute Order of July 9, 2019, the Court, sua sponte, schedules a status conference for August 27, 2019 at 11:00 AM in Courtroom 24A.
Defense counsel has represented to the Court that Mr. Flynn has not received the entire file from his former counsel. Def.'s Resp., ECF No. 98 at 2-4.
The District of Columbia Rules of Professional Conduct govern the practice of law in this District. See LCrR 57.26. Under those rules,
"[i]n connection with any termination of representation, a lawyer shall take timely steps to the extent reasonably practicable to protect a clients interests, such as... surrendering papers and property to which the client is entitled."
D.C. Rules of Prof'l Conduct r. 1.16(d). Rule 1.8(i) provides that:
"[a] lawyer may acquire and enforce a lien granted by law to secure the lawyer's fees or expenses, but a lawyer shall not impose a lien upon any part of a clients files, except upon the lawyer's own work product, and then only to the extent that the work product has not been paid for. This work product exception shall not apply when the client has become unable to pay, or when withholding the lawyer's work product would present a significant risk to the client of irreparable harm."
D.C. Rules of Prof'l Conduct r. 1.8(i); see also D.C. Rules of Prof'l Conduct r. 1.8 cmt. 19 (stating that:
"[t]he possibility of involuntary incarceration or criminal conviction constitutes one category of irreparable harm.").
In light of the representations made by defense counsel regarding the delay in receiving the client files, the Court hereby gives notice to the parties of the Court's intent to invite Senior Legal Ethics Counsel for the District of Columbia Bar to attend the status conference and explain on the record the applicable District of Columbia Rules of Professional Conduct. Mr. Flynn's former counsel shall attend the status conference. Defense counsel is FORTHWITH ORDERED to serve a copy of this Order on Mr. Flynn's former counsel. Signed by Judge Emmet G. Sullivan on 7/16/2019. (lcegs3)
Since there has been no reporting or claim that Flynn has failed to pay his prior lawyers, the judge's action appears to be a warning to Covington that they could be referred for professional misconduct. Here is the statement Covington lawyer Robert Kelner provided to The Hill. Note that he offers no excuse except that there are a lot of documents:
Flynn’s former attorney Robert Kelner told The Hill in a statement: “Since the end of its representation of General Flynn six weeks ago, a team now consisting of 24 Covington lawyers has been collecting and transferring hundreds of thousands of documents to General Flynn's new counsel. Covington has communicated extensively with his new counsel and prioritized the collection and transfer of files as directed by new counsel. Key documents were transferred early in the process. Covington currently expects to complete the transfer of the client file by July 26.”