The Dan Markel Case: Lingering Questions Over Who's Paying Katherine Magbanua's Legal Fees
If everything here is on the up and up, what's the problem with revealing this information?
Katherine Magbanua
Back in November, I wondered: who is paying the legal fees of Sigfredo Garcia and Katherine Magbanua, two of the defendants accused of plotting the July 2014 murder of Florida State University law professor Dan Markel?
Fast forward five months, and the question remains unanswered. From the Tallahassee Democrat:
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Katherine Magbanua’s attorneys say prosecutors are on a fishing expedition to figure out who is paying her legal fees.
Last month, Assistant State Attorney Georgia Cappleman set out to figure out whether the former in-laws of slain Florida State University law professor Dan Markel were paying for two Miami lawyers defending Magbanua, who is suspected of being the conduit in the murder-for-hire plot.
Cappleman said the money trail leads to co-conspirators in the case. But in a Friday court filing, Magbanua’s attorneys Tara Kawass and Christopher DeCoste say prosecutors are doing so on the basis of “conjecture rather than proof.” They want Leon Circuit Court Judge James Hankinson to deny the request.
A case management conference is scheduled for May 1.
If the Adelsons, Markel’s former in-laws, are bankrolling Magbanua’s defense, that strikes me as information that ought to be made public. Given the suspicions that law enforcement officers have about possible involvement of the Adelsons in the murder, the potential for a conflict of interest here is huge. Funding of Magbanua’s defense should therefore be disclosed, so the court can ensure that there is no actual conflict and that Magbanua is receiving the most effective representation possible. (As we’ve mentioned many times before, no member of the Adelson family has been charged in this case, and the Adelsons maintain their innocence.)
Note how Magbanua’s lawyers do not deny that the Adelsons are funding their client’s defense, whether directly or indirectly, in whole or in part. They simply accuse the prosecution of a “bad faith ‘fishing expeditions’ to obtain information to which they are not legally entitled.”
Well, not so fast — the prosecution is entitled to this information, if the court so rules. There is no constitutional or statutory bar to disclosure of funding arrangements in litigation. And if there’s a trend in this area, it’s in favor of more disclosure, not less.
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For example, earlier this year the federal court for the Northern District of California (San Francisco) adopted a rule requiring the automatic disclosure of third-party funding agreements in proposed class action lawsuits. The purpose of the new rule is to help avoid conflicts of interest and ensure that a funder is not exercising undue influence over a litigation.
So too in this case. Knowing who is paying for Katherine Magbanua’s defense can only be for the good. If Christopher DeCoste and Tara Kawass have confidence in the quality and independence of their representation of Katherine Magbanua, they should have no problem with the prosecution and the court knowing who is footing their bill.
As Justice Brandeis famously put it, “Sunlight is said to be the best of disinfectants.”
UPDATE (8:53 p.m.): Although they are now declining to disclose who’s funding Magbanua’s defense, her lawyers said last month that Katie Magbanua’s defense is being paid for by her family:
“They’re wrong on their theory of the murder just like they’re wrong on their theory of who’s paying for Katie’s defense, which is her immediate family,” DeCoste said in an email [to the Tallahassee Democrat]. “They’ve gone into their savings, into their retirement accounts, causing financial hardships, all in order to protect Katie from a wrongful conviction at the hands of an overzealous prosecution. In time their suspicions of the murder will be disproved just like the offensive suspicions that Tara Kawass and myself are focused on anything other than our duty to Katie.”
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If this is the case — the Magbanua family is paying for her defense, and her lawyers have no problem saying so — then it’s not clear what the issue is here. I have reached out to Christopher DeCoste and Tara Kawass for clarification.
UPDATE (9:07 p.m.): Here is what DeCoste just told me: “We’re not trying to keep [the funding arrangements] confidential. The point of our motion is the government shouldn’t be able to operate based on mere speculation.”
Magbanua’s attorneys: State on a ‘fishing expedition’ [Tallahassee Democrat]
District Court Adopts First-of-its-Kind Litigation Funding Disclosure Requirement [The D&O Diary]
David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.
