The Renfroe defendants in Ex rel. Rigsby (adjusting firm E.A. Renfroe and its owners Gene and Jana Renfroe) have now moved for summary judgment. The basis for the motion is the this case is that the allegations in the qui tam case were publicly disclosed on at least four separate occasions beginning more than seven months before the Rigsby sisters filed their original complaint and that the Rigsbys offered no independent and original knowledge of the allegations. The motion also alleges that the Rigsbys have failed to present any specific records that show fraudulent claims handling.  State Farm made a similar argument in its earlier motion to dismiss, but the Renfroe motion goes into more detail. The Sun Herald has a story here.

In McIntosh v. State Farm, US Magistrate Judge Robert Walker has stayed his May 15 order (earlier) requiring Dickie Scruggs to turn over number of documents to State Farm by today, pending resolution of objections by Scruggs. NMC at folo has a good analysis here.

As the New York Law Journal article notes, Weisberg was also indicted last October along with five other men (including two Israeli nationals) on securities fraud, money laundering and conspiracy counts; those charges stem from a short selling scheme which allegedly generated $55 million in illegal profits for the Israelis, who allegedly paid several million in kickbacks to Weisberg and the other defendants. And a WSJ Law Blog article from last fall here notes his involvement and eventual acquittal in a 1991 case.

We noted earlier that the disqualified former SKG attorney Don Barrett had written his clients on April 18 to advise them that the Provost-Umphrey law firm (headquartered in Beaumont, Texas) had agreed to take over their cases. Both firms share a Nashville office. A May 10 Sun Herald story indicated that Provost-Umphrey had picked up about 200 of the firm’s approximately 400 former Katrina clients. However, State Farm contractor E. A. Renfroe on May 20 asked the court to determine if Provost-Umphrey is an “associated firm” in connection with the disqualification order. This was followed by a May 22 State Farm motion objecting to Provost-Umphrey’s appearance and asking the court to compel compliance with its previous motion of disqualification. In light of the associations between the two firms alleged in the memorandums supporting the motions, and the fact that Barrett provided client information to Provost-Umphrey and actively worked to move clients, it’s hard to see Judge Senter allowing Provost-Umphrey’s appearance to stand (Renfroe memorandum, State Farm memorandum, Sun Herald).

At former Sen. Jean Carnahan’s Fired Up Missouri, Howard Beale takes Rigsby qui tam “trailer lawyer” Todd Graves to task, blasting his lack of ethics and suggesting that he may be subject to bar complaint in Missouri due to his conduct in Mississippi:

It really shouldn’t be so surprising that the same man who as U.S. Attorney would have been responsible for investigating or prosecuting a Governor whose acts took place in his District but who saw no problem with his wife’s accepting a lucrative patronage plum from the very same Governor would also see no ethical barrier to cashing in by turning a blind eye to the unethical and inappropriate situation arranged by his fellow attorneys in the Rigsby imbroglio. All of a piece.

Eaton v. Frisby is a civil trade secrets case not directly related to Dickie Scruggs as far as we know, but it is being investigated by the FBI in connection with public corruption allegations against Hinds County Circuit Judge Bobby DeLaughter and former Hinds County DA Ed Peters (earlier here and here), who are also under investigation in connection with at least one Scruggs case, Wilson v. Scruggs. Last week both Peters and DeLaughter were subpoenaed after senior Hinds County Circuit Judge Swan Yerger, who is presently handling the case, issued an order allowing the subpoenas “to determine whether Ed Peters attempted to or did improperly influence any judicial officer and to determine whether any other person or entity participated in or had knowledge of any such efforts” (Clarion Ledger). Peters has moved to quash, but DeLaughter has responded, and his response is telling. While he claims not to have much of the requested information and objects to other requests on grounds of relevancy or confidentiality, he in effect admits furnishing Ed Peters with draft orders and opinions in this case: “Respondent is not aware of an particular opinion or order that may have been furnished to Ed Peters, but any such opinion and/order would not have been any different than that also furnished to all attorneys in the case.” He makes a similar statement regarding information requested re Wilson v. Scruggs. Keeping in mind that Peters had never made an appearance in either case and that his behind-the-scenes involvement was unknown until Joey Langston’s guilty plea, this is quite an ominous admission.

Foggo was originally indicted in February 2007 in connection with the bribery case of former US Rep. Duke Cunningham; Wilkes and Foggo were named in a superseding indictment in May 2007. Both previous indictments were handed down in the Southern District of California; but when Wilkes was sentenced to 12 years in prison in February 2008 for bribing Cunningham (earlier), US District Judge Larry Burns approved an agreement to drop the charges against Wilkes in the corruption case against Foggo and to move the prosecution of Foggo on the same counts to the Eastern District of Virginia. Cunningham was sentenced to 8 years and 4 months in prison in March 2006.

Attorney Lawrence McMichael argued the reversal of the single count was due to a substantive error and therefore all counts should be reevaluated. He also asked the court to consider new sentencing rules and new evidence from civil proceedings that has come to light since the original trial. However, Judge Sand said the reversal was on a lesser count of bank fraud and not the bigger conspiracy charge, and he has already rejected a motion to reconsider based on new evidence. He could choose to let the sentences stand since the reversed count was being served concurrently; McMichael asked for both sentences to be reduced to only 12 months. Judge Sand declined to rule immediately, indicating that he would publish a written decision in the coming weeks. But he stated, “There’s no acceptance of any responsibility for what occurred at Adelphia, and I don’t think that’s an overstatement. I think the defendants are in total denial, and that’s very disturbing” (Reuters ).

US District Judge Arthur Schwab last Monday canceled the retrial, which had been scheduled to begin tomorrow, and released about 250 prospective jurors back into the pool for future jury duty (Pittsburgh Tribune-Review). On Friday, to no one’s surprise, Schwab denied defense motions to acquit Wecht, to dismiss all charges and to suppress certain evidence at the second trial (Tribune-Review).

As a practical matter, what do prosecutors do when investigating a case where the target has asserted the attorney-reliance defense before the indictment is returned? Often, the prosecutor will be able to satisfy (or convince) himself ahead of time that the attorney was not told the whole story by his client or that the attorney did not give the advice asserted by the target. But some prosecutors solve the problem by indicting the attorney along with the client. This is obviously unfair and improper if the attorney was sincere in giving advice–even mistaken advice. On the other hand, there are definitely occasions in which an attorney knowingly aids and abets a crime by providing “advice” to the principal that is really nothing more than a cover for fraud. This seems to happen a lot in connection with alleged tax shelter schemes.

Why am I even thinking and talking about this stuff? The whole attorney reliance issue came to mind yesterday when I read the Washington Post story on the latest John C. Yoo memo to surface. Yoo is the former Deputy Assistant Attorney General in DOJ’s Office of Legal Counsel, infamous for writing a memo providing legal cover for the mistreatment and/or torture of enemy combatants.

The government has now declassified a sentence from another Yoo memo, penned in 2001. This memo relates to the Foreign Intelligence Surveillance Act (”FISA”). FISA states that FISA is the “exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted.” The Bush Administration wanted to conduct warrantless electronic surveillance without even post-surveillance judicial authorization in certain situations, which is prohibited by FISA. FISA allows emergency warrantless eavesdropping, but requires the government to obtain post-surveillance judicial approval withinn 72 hours of the electronic surveillance. That wasn’t good enough for the Bush Administration. Yoo’s declassified sentence states that: “Unless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area — which it has not — then the statute must be construed to avoid [such] a reading.”

In other words, even though FISA says on its face that it is the “exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted,” Congress really meant to carve out an exception for the inherent Presidential authority to conduct such surveillance and interception. Not only is this analysis false and Orwellian–it doesn’t even make sense as a matter of Constitutional Law. If the President has this inherent authority, it is Constitutional in nature, and cannot be restricted by Congressional enactment.

Predictably, Senator Diane Feinstein is outraged and calls for new FISA legislation with even stronger exclusivity language. But respect for the English language, including the plain language of statutes, has never been a strong suit of the Bush Administration. Senator, and former federal prosecutor, Sheldon Whitehouse, is more to the point: “I cannot reconcile the plain language of FISA that it is the exclusive procedure for electronic surveillance of Americans with the OLC opinion saying Congress didn’t say that. Once again, behind the veil of secrecy, OLC appears to have cooked up extravagant or misguided legal theories which would never survive the light of day.” Translation: Yoo is no better than a tax attorney handing out phony opinion letters to justify a fraudulent off-shore tax fraud scheme.

Brian A. Benczkowski, DOJ’s Deputy Assistant Attorney General in the Office of Legislative Affairs, said that the government no longer relies on the 2001 Yoo memo to justify its warrantless electronic surveillance. Benczkowski, like former Attorney General Alberto Gonzales before him, believes that when Congress approved the September 18, 2001, Authorization for Use of Military Force, it “confirmed and supplemented the President’s Article II authority to conduct warrantless surveillance to prevent catastrophic attacks on the United States.” Almost nobody in Washington involved in the passage of the Authorization really believes this.

So here is my question: If the Obama Administration decides to criminally prosecute members of the Bush Administration for their knowing violation of FISA, will Yoo be a witness for the government, a witness for the defense, or a co-defendant?