Stan Woodward Reportedly Concedes a Duty of Loyalty But Doesn’t Want His Name Used at Trial
In this post, I pointed out what all the coverage of the Garcia hearing last week missed: The prior briefing had been about whether to hold a Garcia hearing. It wasn’t about what to include in the briefing, which should all stem from ethical conflict rules.
On Monday, Judge Aileen Cannon (while blaming the Special Counsel’s Office) ordered that briefing.
In SCO’s submission in response, they clearly laid out not just that they had established the reason why Stan Woodward couldn’t cross-examine a former client, but that they had laid that out from their initial briefing — over two months ago, they observe — on the Garcia hearing: it arises from the Bar rules in both Florida and DC.
As the Government stated in its initial motion for a Garcia hearing, filed more than two months ago, “[a]n attorney’s cross-examination of a current or former client presents a conflict of interest.” ECF No. 97, at 6. Nor can Mr. Woodward otherwise seek to discredit Trump Employee 4 at trial, including in closing arguments.
And this time around they did what they should have been prepared to do at last week’s hearing: Cite 11th Circuit precedent.
Under the Florida ethics rules, “attorneys generally owe duties of confidentiality and loyalty to former clients.” Med. & Chiropractic Clinic, Inc. v. Oppenheim, 981 F.3d 983, 990 (11th Cir. 2020); see Fla. Bar R. Prof’l Conduct 4-1.9. These duties both come into play when, as here, a former client testifies at trial against a current client in a substantially related matter. During cross-examination, the attorney might “improperly” use the prior client’s confidential information or, alternatively, hold back from “intense probing” to avoid using those confidences. United States v. Ross, 33 F.3d 1507, 1523 (11th Cir. 1994). When the subject matters of the representations are substantially related, “the court will irrebutably presume that relevant confidential information was disclosed during the former period of representation.” Freund v. Butterworth, 165 F.3d 839, 859 (11th Cir. 1999). And given the duty of loyalty, a lawyer cross-examining a client, including a former client, faces “an impossible choice: [the attorney] can either vigorously cross-examine the client-turned-witness and thereby violate his duty of loyalty to the client on the witness stand, or he can temper his cross-examination and risk violating his duty of loyalty to the client on trial.” United States v. Almeida, 341 F.3d 1318, 1323 & n.17 (11th Cir. 2003). [my emphasis]
In its filing, SCO accuses Woodward of denying his ethical obligations to a former client at the contentious hearing last week, then lays out Florida precedent establishing it.
At the hearing on October 12, 2023, Mr. Woodward disputed that he had a duty of loyalty to his former clients, referring to “my hypothetical duty of loyalty to a former client, which again we dispute that duty even exists.” 10/12/2023 Hearing Tr. at 19. Similarly, when the Government conferred with Mr. Woodward in connection with this filing on October 17, 2023, Mr. Woodward continued to question whether he owes an ongoing duty of loyalty to Trump Employee 4. There is no basis for dispute: “a duty of loyalty exists apart and distinct from the duty to maintain client confidences.” United States v. Culp, 934 F. Supp. 394, 398 (M.D. Fla. 1996). Indeed, although Mr. Woodward and Mr. Irving have agreed to have another attorney conduct the cross-examination of their clients, courts frequently disqualify attorneys even where the attorneys propose that another attorney will conduct the cross-examination of a former client. See, e.g., United States v. Cordoba, No. 12-CR-20157, 2013 WL 5741834, at *12 (S.D. Fla. Oct. 17, 2013); Delorme, 2009 WL 33836, at *7; United States v. Miranda, 936 F. Supp. 945, 952 (S.D. Fla. 1996); United States v. Perez, 694 F. Supp. 854, 858 (S.D. Fla. 1988). Consistent with these authorities, Mr. Woodward acknowledged today that his ethical obligations to Trump Employee 4 and Witness 1 may constrain his ability to discredit those clients at trial, including during closing arguments. [my emphasis]
Importantly, the full context — at the hearing — of Woodward’s suggestion that he does not owe Taveras any duty of loyalty pertained to moving to strike Taveras’ testimony.
I am not certainly prepared to advise Mr. Nauta if he is prepared to proceed with a trial in which he doesn’t know what role his principal choice of counsel can play because, again, in the case law cited by the Government this isn’t limited to summation. The Government used summation as an example, but would I also be precluded from filing a motion to strike Trump Employee 4’s testimony because that potentially implicates his credibility, or my hypothetical duty of loyalty to a former client, which again we dispute that that duty actually exists. [my emphasis]
Those citations SCO provided of instances where courts have disqualified attorneys entirely may be why — at least per SCO’s representation, though we shall see whether he actually says that in his own filing — Woodward conceded he may not be able to close on Taveras. He still seems committed to remaining in this impossible position, largely incapable of defending Nauta against a key charge.
But Woodard is still dug in on one topic: About whether his name can be used in conjunction with Taveras’ testimony.
It is all but certain that Trump Employee 4’s testimony before the grand jury (while represented by Mr. Woodward) and his subsequent retraction and disavowal of that testimony will be subjects of cross-examination and redirect. The questioning may also encompass the fact that Trump Employee 4 was represented by Mr. Woodward at the time of his grand jury testimony, that Mr. Woodward’s legal fees were paid by a PAC controlled by defendant Donald J. Trump, and that Trump Employee 4 procured new counsel and quickly retracted his prior grand jury testimony. All of these facts will be relevant to Trump Employee 4’s testimony and may come out at trial.1
1 When the Government conferred with Mr. Woodward in connection with this filing, he asserted that his name should not come up during examination of Trump Employee 4, but he agreed that the other information referenced above could be relevant. [my emphasis]
I suspect SCO was trying to avoid making all this plain. I also suspect they pulled a great many punches (though that may have arisen from page limits). According to earlier filings, SCO warned Woodward about this conflict in early 2023, and he did nothing about it.
Woodward will file his response today as well. I expect it to be quite contentious.
You might say that Mr. Woodward is hoping to pixie dust away his ethical obligations, as well as the legal exposure those clients might create for another client, the guy paying his bills.
Footnotes are sometimes the plum in the legal pudding. Footnote 1, for example. What could possibly be the legal basis to preclude naming Woodward during examination of Trump Employee 4 at trial? If called by the prosecution, for example, the defense would want to attack his credibility by putting the worst possible light on his changed testimony, something unrelated to his change of counsel. Prosecutors would want to head that off by raising it on direct, and by putting it in the best possible light. Woodward’s representation is an essential fact in either version.
Sadly for Mr. Woodward, that risks exposing him to ridicule and potential challenges from all his clients, but that’s not a legal basis to avoid raising an important fact.
That we are even discussing this is ridiculous. What is the deal with Woodward (and a couple of others)?
I look forward to his filing.
He has succeeded, thus far, in wooing Cannon and the press. But that quote from the hearing — that his duty of loyalty is just hypothetical? Will be there when he tries to get confirmed in a hypothetical Trump term.
I intended to do the full timeline of his engagement here, from a year ago when he didn’t advise Nauta to flip while he could, but have yet to do that. It’s fairly astonishing, but, as I said, he has shielded his actions with good press.
The following passage from page 3 of the SCO submission seems to me to be a mild but firm rebuttal of Cannon’s “you blindsided me” rebuke that ended the hearing on the 12th:
*** The information available to the Government accordingly triggered the Government’s duty to inform the Court of potential conflicts and the Court’s obligation to investigate and consider appropriate remedies. The Government did not attempt to forecast every possible aspect of the possible conflicts, outline all of the potential remedies, or predict how Mr. Woodward (or Mr. Irving) would respond. Instead, the Government believed that “[t]he information gathered at the Garcia hearing [would] enable the Court to address any conflicts and formulate an appropriate remedy, and the Government [took] no position at [that] time as to what remedy may be appropriate.” ECF No. 97, at 9***
Is that a proper read?
That’s definitely my read. It was a request for a Garcia hearing, not a laundry list of what she had to cover.
That was also my read. They’ve been pretty consistent in their filings from the start that once they alerted her, Cannon basically has her own independent duty to investigate to ensure Nauta’s right to effective counsel is being protected.
If I can play the SCO’s “Anger Interpreter”:
“While we’re interested parties, this trial integrity issue is ultimately *your job* to investigate and handle. This is not an “ask” from us, this is a duty on you. If you needed our help to prep for that with briefing, you should’ve asked for it. Maybe if you’d actually grappled with the allegations and worked through what it means for a lawyer to be conflicted, you’d have realized you needed to do that. Maybe instead of wasting 2 entire months dicking around in briefing over whether this hearing should even be held, you should’ve spent at least some of that time preparing to dig into the weeds.”
Thank you, Luther. This helped my confounded, confused chin, caused by mazed and astonished mouth, get up off the floor. I needed that!
I’ve got this Keegan-Michael Key classic queued up for a rewatch later, when I need to — again — peel my perplexed, reaffixed chin up off of the carpet.
https://m.youtube.com/watch?v=G6NfRMv-4OY
It is frustrating that SCO didn’t instantly raise the 11th Circuit Court precedent(s), but (IANAL), I can imagine that Woodward’s level of intransigence isn’t something most prosecutors would immediately assume and brief about – even the SCO prosecutors. I’m glad they’ve done so now.
It’s easy to imagine them assuming that Trump’s lack of knowledge of the legal system would be the primary source of confusion that they need to anticipate and prepare for, and only later recognize the contribution of confusion that Woodward’s own apparent lack of familiarity with his own obligations is making.
I don’t think Woodward lacks familiarity with his obligations toward his past and present clients. I think his current paycheck, overwhelmingly if not solely coming from Trump, demands that he forget them, and that he’s willing to try hard to do that, potentially with Cannon’s help.
I practice law mainly in the Second Circuit where a Garcia hearing is called a Curcio hearing. And there many judges would just throw Woodward off the case without briefing or really holding any hearing at all as the non-waivable conflict is so stark.
Yes, Curcio. But if a court has to bring it up, you are doing it wrong. Be ahead of that.
Yes I don’t mean the judge would do it sua sponte – I meant after the DOJ brings it up the lawyer would be off with this serious of a conflict.
Absolutely! I have mentioned something similar elsewhere. It is unusual to have the prosecution bring up the need for a hearing when the court usually does it sua sponte. Absent action by Cannon, the SCO sought to nudge her into the Garcia hearing without taking a strong position — it may be ethical but it feels wrong to be attacking opposing counsel directly on this sort of thing. By failing to recognize what is obvious, Cannon is forcing SCO to force an issue they would not usually need to raise at all, much less pursue.
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Appreciate that. IANAL but have followed here for a while: you mirror my take. But not having it said here in comments, I figured I’d see how it unfolds.
Canon has ignored SCO’s explicit statements several times prior, while later putting SCO under the spotlight explicitly for not saying the prior explicit statements. Marcy highlighted the latest instance at beginning of this post.
Among other things, this serves to redirect action and energy for all involved: it is off purpose. It seems to me simultaneously Canon either is not familiar with her duties, or similar to Woodard, is willfully ignoring them.
Stands in stark contrast to how Judge Noreika handled Hunter’s problematical plea deal.
Hunter’s plea deal was not particularly “problematic” at all. The biggest “problem” was that it was FAR more harsh than any common citizen would ever get.
As I understood, it was problematic in that HB was not made aware he could face future legal liability HB believed was covered by the plea deal.
Don’t think that was it.
Article here (CNBC) title: Documents in failed Hunter Biden plea agreement made public
I think Cannon is finally beginning to figure out she may have to do that. She’s REALLY not thinking about the benefits for the clients. She’s thinking about the argument Woodward wants to make that she wants to hear (a BS arg abt grand juries).
But the benefits to Nauta and De Oliveira of Cannon’s rigorously ensuring their access to conflict-free counsel is that any such counsel would likely advise them strenuously to plead, and cooperate against their employer/co-defendant currently footing the bill for their legal fees. Thus far, that’s not seemed a possibility either Cannon or the man who nominated her to the bench seem the least bit comfortable with broaching.
I am relatively certain that the page limits came into play here. I am waiting for a sur-reply or opening statement at an in-person hearing that says something along the lines of “Your Honor, there is so damn much to address at this stage of the proceedings , that we’re only hitting the high points here. We are ready and willing to expand on what is said in this filing, to fill in the gaps or address matters at more depth.”
Yes, especially if the venue for that statement isn’t an in-person appearance where Cannon orders them to expand/fill in/address matters in a written briefing before another in-person appearance.
The thought that this is all about Cannon and not the actual parties is hilarious. Again, neither you, nor anybody else, would have ever known about Cannon, nor cared about her on the federal bench. But now, she is magically your focus. Get a grip. Yes, often times federal judges don’t think like you. Get over it.
After the previous hearing I said not only should Woodward be barred from crossing or summation, he should be getting impeached and possibly tossed off this whole case because his client gave testimony and then went to a lawyer not paid by Trump and did a 180 on it. There needs to be an investigation into what Woodward’s role in that was. Glad the SCO sees it my way.
I doubt the SCO sees it quite as you do. Impeachment doesn’t enter into it, for example. Woodward should be removed from representing these defendants, except perhaps Trump, because he is hopelessly conflicted. The evidence about why Taveras changed his mind in DC would be relevant, if we knew what it was.
If Woodward persists in trying to represent multiple defendants with obvious and impossible to reconcile conflicts, his state bar should investigate him, especially for his position that his duties of loyalty and confidentiality are “hypothetical,” except for his “principal current client,” by which he probably means Trump. But that would need investigating. Like Trump, he’s betting an awful lot on Trump resuming the presidency.
And no one here is forgetting that it’s Cannon’s call whether to remove Woodward and/or accept supposedly knowing waiver of conflicts or deem them unwaivable, which is what it looks like to me.
I wonder what judicial appointment he’s been promised. Because I cannot fathom any other motivation for him to continue in this manner when, as you note elsewhere, this is not rocket science.
Does SCO have any recourse if Cannon doesn’t happen to agree with you and accepts all of the waivers?
Double the court’s responsibility since she knows Nauta is not fluent in English. I question whether he is competent to waive legal matters except in Portuguese.
Nauta?
Ew,
Woodward writes “ because that potentially implicates his credibility, or my hypothetical duty of loyalty” regarding principal client Nauta, and principle ethical duty, both Judge and Woodward appear confused at the homonym.
I don’t think confusion enters into it. Woodward knows he has multiple conflicts. So does Cannon. It would be hard to ignore them, especially as Woodward stubbornly claims that his duties toward other than his principal client – whomever he thinks that is – are hypothetical, which seems outrageous. This is not rocket science. I think it’s as plain as it looks.
Whatever else is true, Cannon has managed to burn two months with this kabuki.
Even to the layperson, there’s nothing hypothetical about duty of loyalty to clients present and former according to rulings cited here.
Appears Trump World folk are so used to flooding the zone with shit and keeping everyone sliding around in it, they have forgotten about the endings to such crazy ventures.
Welp, Here we are. Now televise the trials.
Millions of people are the injured party here.
Since the law behind Garcia hearings appears pretty basic, Sheldon Whitehouse’s video dissections of the “captive court” lend credence to skepticism about Cannon’s judgements in this case. Her latest throwing sand in the government’s face and its confused reporting, intentional or not, is another example of why televising the trials is critical at this time.
No to television; this is a matter of law not entertainment.
I would like to see them all recorded, and released to the public domain some months after they are done. This stuff is pretty historic and should be preserved a bit better than just in court notes and sketches.
With that I can agree.
Is your disagreement with broadcasting the trial based on the concern that lawyers/defendants will play to the audience/Trump ? What is behind your opinion ?
We are looking at Information, the distortion and lack thereof and having to depend on other people to tell you what happened in court that day.
Televising the trials would add another invaluable layer of transparency so we can see for ourselves what the arguments and rebuttals are in Trump cases. The stakes are very high here.
So what if you give Trump his greatest ratings wish. The irony, after all, is perfect.
This is kind of an ironic comment to Marcy Wheeler’s post that includes a takedown of ALL the MSM coverage of the Garcia hearing part 1. The trial record record will become public (sans CIPA complications) just like any other case. What makes you think that live coverage and contemporaneous commentary by the usual pundits will help John Q Public better follow what is going on? Like most others, I would personally like to watch as much of a trial broadcast as possible. But I confess that I would still have to rely upon the likes of M Wheeler, Rayne, BMAZ (cranky ‘tude and all) and other credible sources to digest what I am seeing.
Have you heard of Fox News? Right after the testimony, Fox will flood the airwaves with “the perfect call,” “nothing to see here,” and a litany of other BS. We need to see the case in real time. It will make it so much harder for the news media to distort.
How could it possibly be a good idea to give a TV star a daily TV show by televising the trials? You think it’s been a circus up to now, you ain’t seen nothin’ yet!
I am thinking more eyeballs on the court is a good thing. Many more people who have not been paying attention might be reached. I think it’s well worth the effort.
OT, but CNN reports that Sydney Powell has pled guilty in the Georgia election fraud case:
https://www.cnn.com/2023/10/19/politics/sidney-powell-fulton-county-georgia-2020-election-subversion/index.html
Possibly took the deal that Cheese Bro (sic) turned down. IMO, he’s now toast.
This is a pretty big hole in the dike holding back the waters, because of how many parts of the coup where she was involved.
Big win for Fani and SC Smith as well.
Kinda depends on how much she has to say. She’s regarded as cray-cray and hence not the most reliable witness. But it seems unlikely Willis would have given her a deal if the proffer weren’t substantial.
I especially want to know everything she has to say about the pivotal Dec 18 meeting in the Oval Office, where she came close to being named special counsel (may have even briefly been, orally?), and not long after which Trump sent the “will be wild” tweet.
Though, IDK if she can be a “star witness”, just because it’s incredibly easy to launch a broadside against her credibility.
Cheese toast, bro.
Does anyone else have PTSD every time they see SCO and not think of the shitshow of SCO vs IBM?
Yeah. And you know it’s got multiple lives; Xinuos, which bought SCO’s OS line, filed suit in 2021 against IBM (after the SCO-IBM one was finally settled) claiming theft of IP and other stuff.
I was one of the first people to post and do research at Groklaw. The idea that anyone could still be suing over this is ridiculous, because we obliterated SCO’s* case.
I’m mostly responsible for this. Note the lack of https connectivity. The link is probably safe, but no guarantees:
http ://www.groklaw.net/article.php?story=20031210111235600
Apologies if I didn’t break up the URL correctly.
* I also know a major store which uses VMWare, to support an older version of Windows NT, upon which they virtualize SCO Unix. I think Windows 95 or 98 is also involved somehow.
I’m guessing their sysadmin(s) have a job for life and make a lot of money.
Yeah. It’s the most bizarre setup I’ve ever seen.
“Avoiding”? More like they turned out to be wrong in assuming that Cannon do her own research on the matter before her court about what the legal obligations in her Circuit are? Seriously, Cannon is turning out to be more and more of a bozo as this pre-trial stuff plays out.
IANAL but I’d say also that the record of them having to present this information to her rather than her just knowing it off hand by this point in a case this important might well be another good data point for the prosecution to use on appeals if there’s any further nonsense Cannon tries to inject into her court proceedings in this case.
This is staring Cannon right in the face. She’s not stupid. That makes it that much more distressing that she refuses – at least so far – to recognize it. But regardless of what contentious noise Woodward makes in his next filing, I still think she will have to back down. It just never should have taken this long.
There’s a reason I’m not a judge. This hearing would take about five minutes, no briefing required, and my ruling would be to bar Woodward from representing ANY defendant in this case, past, present or future. He’s contaminated; no defendant can trust him. Maybe I would even resist the temptation to say, “Mar. Woodward, you’re fired.”
The line from Robocop is always good here: “Dick, you’re fired.”
This reminds me of a
Reuters story about a June 2023 criminal trial in Cannon’s court where, after forgetting to swear in the jurors and needing to restart voir dire afresh, Judge Cannon refused to allow the defendant’s mother at least, nor mother and sister, at most, to sit in the courtroom — a structural error “so significant” that it could “invalidate a criminal trial because it strikes at the heart of the entire process.”
Notice the prosecutor stepped in at least TWICE to assist the defense attorney in securing the defendant’s public trial rights. No slight on defense counsel here, but the prosecutor had to step in to “teach the judge” about a fundamental right that is Supreme Court “settled law,” to keep the case from derailing. At lunch, the prosecution offered defense a generous plea, including a provision that preserved A RIGHT FOR THE DEFENDANT TO APPEAL evidence exclusion rulings Cannon made. Anyone ever seen a plea, with a generous olive branch like this, extended to the defense? (Specifically stating what was ripe for appeal?)
Please forgive me Ella Fitzgerald; I don’t think Rogers & Hart would mind.
After one whole quart of brandy
Ready for trial and wide awake
With no cafe latte handy
I don’t even shake
Crim Pro not a new creation
Local Rules online I think
But this half-pint imitation
Puts this case on the blink
I’m viled again, beguiled again
A simpering, whimpering child again
Bewitched, bothered and bewildered – am I
Must shopkeep. Complain? Not a peep.
When Smith came and told me, don’t oversteep
Bewitched, bothered and bewildered – am I