This article, which was originally published on October 21st, at 11:07 P.M. ET., has been updated and revised at 2:30 PM on October 22nd to reflect comments by attorney Marc Fernich, the opinions of two other attorneys, and other modifications to reflect an ongoing understanding, some new information and other developments in the matter. In short, I did a rewrite.
Marc Fernich, a former attorney for Keith Raniere, filed a letter with the US Court of Appeals. In so doing, a question was raised as to whether he breached attorney-client privilege.
Fernich’s letter was about a missed deadline for a supplemental brief for Raniere’s appeal, which Fernich previously requested, and was expected to file. It was due on October 20th but was not filed by that deadline.
Fernich’s letter was short and to the point: He won’t be filing the brief. I was curious as to why he waited until the day after the deadline to tell the court this news.
Here is the letter:
Hon. Catherine O’Hagan Wolfe
Clerk, US Court of Appeals – Second Circuit
Thurgood Marshall US Courthouse
40 Foley Sq.
New York, NY 10007
Re: US v. Raniere (Bronfman), 20-3520 (CA2)
Dear Ms. O’Hagan Wolfe:
I write, as lawyer of record for Keith Raniere, to respectfully advise that I won’t be filing on his behalf the optional supplemental brief authorized by the Court. I understand that alternate private counsel is expected to substitute and file, with government consent, a delayed supplemental brief, currently due yesterday. I also sent Raniere, through his designated agents, a CJA 23 Financial Affidavit, explaining how he may seek the appointment of public counsel or otherwise represent himself.
The last sentence is problematic to me. Fernich seems to reveal that Raniere is out of funds. Reading into it, I assume Raniere owes him money or could not pay him what he wanted to write the supplemental brief. That Fernich sent a financial affidavit to Raniere’s designated agent in order to possibly help him get financial aid for a lawyer is not something I would want to be disclosed to the world were I a client.
Fernich is a Manhattan attorney with around 30 years’ experience. His practice centers on criminal defense, appeals and motions.
Fernich Responds
Updated:
After reading my original report, Fernich sent the following to me via text: “Mr. Raniere and I are parting ways for reasons that will remain private. He can’t go unrepresented on a pending appeal. My letter informed the Court, consistent with my professional obligations and Second Circuit rules, that I advised the client or his agents of his options moving forward in my absence — retain private replacement counsel, request the appointment of public counsel or represent himself — and that he appears to have chosen the first one.”
Two attorneys also weighed in on the topic.
One of them sided with Fernich.
He wrote, “Revealing the reason for withdrawal is standard fare and required by virtually every court. Likewise, the last sentence where Fernich writes that he informed Raniere that he may have access to court appointed counsel based on his finances (or lack thereof) is standard.
“There is nothing wrong in any of this letter. He’s not disclosing details about differences in strategy, or disputes with Raniere over the law or whatever. If anything, this letter is the minimum amount required. In any event, your post has it completely wrong. I leave it to you whether to correct it, since this email is for your edification and for the benefit of of those who follow your blog.”
The lawyer also added, “Not every communication between attorney and client is privileged, only those communications concerning or including legal advice is. Retainer agreements are usually confidential, but they are not privileged except to the extent they contain privileged matter (and then only those parts are privileged). Indeed, the fact that you may be able to review the retainer proves this point since anything privileged that is shared with you immediately loses that protection.”
Another View
Another attorney had an opposing view.
He said, “When Fernich wrote, “I also sent Raniere, through his designated agents, a CJA 23 Financial Affidavit, explaining how he may seek the appointment of public counsel or otherwise represent himself,” he is disclosing the client may not have the financial wherewithal to proceed, so he is tipping off the feds, letting them know they do not have to worry about this guy getting an expensive hard-nosed attorney. It makes it clear to the feds that he might not be represented by counsel anymore.
“I do not see what good came out of the last sentence. If the attorney felt he had to put it in, he should have filed it under seal, ex-parte. Let me ask you this, how would you feel if your attorney had written that letter? It has the feel of ‘something is wrong with the client.’ Still, everybody has their own standard. The question is, did Marc Fernich disclose information that his client revealed? Is it a borderline attorney-client privilege issue? Maybe. But the bigger question is whether it was necessary to do it publicly”
Restitution Follies
At a July restitution, hearing where Fernich did appear for Raniere, the lawyer had an angry exchange with Judge Nicholas G. Garaufis. The flare-up was not on behalf of his client but over a personal issue. Fernich was angry because the judge would not delay the proceedings by an hour so that Fernich might attend a close friend’s funeral and family get-together that followed.
After the exchange, Fernich got into an extraordinary staring contest with a federal judge that lasted literally 30 minutes. It ended with Fernich apologizing.
By the way, I am no fan of Raniere’s. In fact, I firmly believe that the best place for Raniere is USP Tucson – although not in the SHU where he is presently assigned but in a regular unit with other prisoners of his ilk. The prison is populated with prisoners who are sex offenders.
Keith Raniere
I hope Raniere stays at USP Tucson for as long as he lives and I hope that is for many years to come. However, I believe in due process. If the FBI tampered with evidence, I would like to see that addressed even if it means a new trial – which he will most likely lose.
I believe Raniere is a monster. I know also that he has been through numerous attorneys. He had Marc Agnifilo and Paul DeroHanessian for the trial.
Marc Agnifilo and Paul DerOhannesian
He had Jennifer Bonjean, who filed his direct appeal.
Jennifer Bonjean
He had Steven Metcalf and Joseph McBride. I am not sure what these two did.
Steven Alan Metcalf II, Esq.
And he had Jeffrey Lichtman, another lawyer whose role seems unclear, other than that he appeared with Fernich at the restitution hearing.
Jeffrey Lichtman
And he had Marc Fernich who was supposed to write a supplemental brief for Raniere’s appeal. But as we learned from his October 21st letter, he won’t be writing that after all.
It remains unclear if anyone will write a supplemental although Fernich did indicate that Raniere may have hired yet another attorney and that the prosecution may have consented to extend the filing deadline by a few days. Given that it’s the Court of Appeals that sets and extends such deadlines – and given that there is nothing in the record to indicate that any further extension has been requested or granted – it is not at all certain that raniere will be allowed to file a supplemental appellate brief..
Marc Fernich for the defense? Or is it the prosecution?
All of Raniere’s attorneys of record are gone. Probably most left with a bad taste in their mouth. In some cases, Raniere may owe them money and in other cases, the lawyers might have gotten one over on Raniere. It may be karma. When he was a free man he used dozens of attorneys to win through litigation wars of attrition. He littered the battlefield with unpaid attorneys, while others overbilled him enormously.
When I say “him”, I mean of course the Bronfman sisters who funded the litigation.
He used and abused the legal system and despite his claim of being the smartest man in the world, he sits in prison, going through one attorney after another.
Viva Executive Success!
