In yet another surprise development in the Michael Flynn case, on Tuesday Judge Emmet Sullivan ordered Flynn’s former Covington and Burling lawyers to appear in court to receive a lecture on ethics from the senior legal ethics counsel for the District of Columbia Bar. While Sullivan’s order expressed concern only over Covington and Burling’s delay in providing Flynn’s new attorney, Sidney Powell, access to his complete legal file, given recent revelations, one must wonder whether Sullivan is equally concerned that a conflict of interest existed in Covington and Burling’s representation of Flynn.
Tuesday’s order followed a briefing by Powell and federal prosecutors on the possible effects on Flynn’s sentencing of recently unsealed court records in the criminal case against Flynn’s former business partner, Bijan Rafiekian. Flynn, who pleaded guilty on December 1, 2017 to making false statements to the FBI, awaits sentencing before Sullivan.
At a status hearing last month, the attorneys informed Sullivan that Flynn was scheduled to testify in mid-July at Rafiekian’s trial. But then last week, the judge presiding over Rafiekian’s trial in a Virginia federal court unsealed various filings, including a motion by the government seeking to brand Flynn a co-conspirator. It also stated that the prosecution will no longer call Flynn as a witness.
The government maintained in its response to Judge Sullivan’s order that it could not currently “speculate on how specifically the aforementioned records will impact the government’s sentencing position in the proceedings before this Court.” But the U.S. attorney’s office in D.C. then suggested that “the Rafiekian trial may still impact the government’s position,” concerning Flynn’s sentence, for example, if Rafiekian called Flynn to testify at trial.
“The government intends to reassess its sentencing position at the conclusion of that trial,” federal prosecutors told Sullivan, requesting the court continue to delay Flynn’s sentencing until the conclusion of Rafiekian’s trial.
Powell: Flynn Sentencing Must Be Delayed
Powell countered forcefully, arguing that the documents unsealed in the Rafiekian case, “in which Mr. Flynn has long been cooperating with the government, should have no negative impact on the proceedings before this Court now or in the future.” Flynn’s new attorney continued:
Despite intimations in the Government’s Response that it will try to increase Mr. Flynn’s sentence depending on his testimony, if any, for the defense or otherwise, there is no basis to do so. Regardless of who might call Mr. Flynn as a witness, his testimony remains consistent with his grand jury testimony—which the government used to obtain the Rafiekian indictment.
While Powell maintained that the outcome of the Rafiekian trial should not affect Flynn’s sentence, she stressed the need to delay Flynn’s sentencing further. “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,” Powell explained. “Indeed, counsel for Mr. Flynn just received an additional 7,300 documents last week. Additionally, former counsel advised they expect to do rolling productions of ‘many more’ tranches over the next several weeks.”
Judge Sullivan seized on Powell’s reference to the delays, to justify calling Flynn’s former Covington and Burling lawyers before the court for a hearing August 27. In ordering this status hearing, Judge Sullivan noted that the District of Columbia Rules of Professional Conduct require attorneys, upon the termination of representation, “to take timely steps to the extent reasonably practicable to protect a client’s interests, such as…surrendering papers and property to which the client is entitled.”
He then announced that “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.”
One must wonder whether Judge Sullivan has other concerns and questions for the Covington and Burling lawyers and the bar’s legal ethics counsel. After all, Sullivan had already scheduled a status hearing for August 30, and Powell indicated she would have the complete file by then. If Powell is still waiting on the complete file then, Sullivan could have hauled Flynn’s former attorneys in following the August 30 hearing, instead of a few days before it.
It seems extremely likely instead that Sullivan—whose recent orders demonstrate he has been closely following the developments involving Flynn—noticed what Powell called in her brief “crucial and troubling issues that should concern any court.” Powell deftly highlighted the main concern: a conflict of interest between Flynn and his Covington and Burling attorneys.
What Was Really Going On Here?
With cautious framing, Powell laid out facts raising grave concerns about Covington and Burling’s representation of Flynn in the underlying criminal case. Covington and Burling represented Flynn and Flynn Intel Group’s filing of the Foreign Agent Registration Act (FARA) statements that the government now contends Flynn conspired with Rafiekian to file, with the inclusion of material false information.
But, as Powell points out in her brief, “former counsel had all the emails and information that the government claims supports a ‘conspiracy’ and more when they completed the FARA filing.” And “according to Covington’s own notes, and consistent with what they told Mr. Flynn, prior counsel admittedly ‘did not necessarily go through every doc; were trying to capture high-level info of who client was and nature of work.’”
Notwithstanding Covington’s role in preparing the FARA filings, Covington attorneys also represented Flynn and helped negotiate the statement of offense that Flynn signed, in which he admitted the FARA contained material false facts. Covington’s handling of Flynn’s criminal case in these circumstances raises serious questions concerning whether Covington had a conflict of interest that prevented them from providing Flynn effective assistance of counsel.
It will be interesting to learn whether Judge Sullivan has similar questions—and whether that is the real reason he wants Covington and Burling to hear from the D.C. bar’s ethics counsel.
