As John Pierce's Jan. 6 Client List Grows, Conflict of Interest Concerns Follow

January 27, 2022 - Journalist Andrew Goudsward - law.com

• Right-wing attorney John Pierce is representing nearly two dozen defendants charged in connection with the Capitol riot.

• Judges in two recent cases have appointed a conflicts counsel to determine if Pierce's representations of multiple co-defendants charged together pose ethical issues.

• Pierce defended the number of Jan. 6 clients he has taken on and committed to withdrawing if conflict issues arise.

Judges in at least two cases have appointed a conflicts counsel to determine if Pierce's representations of Jan. 6 defendants pose ethical issues.

Right-wing attorney John Pierce’s fiery pro-Trump and anti-establishment persona, and his reputation for backing causes championed by conservatives, has helped him amass nearly two dozen clients charged in the Jan. 6 attack on the U.S. Capitol. But as his client list grows, so too are concerns about potential conflicts of interest in his cases.

Judges in at least two multi-defendant cases have appointed a conflicts counsel in recent weeks to examine whether Pierce’s representation of multiple co-defendants charged together for allegedly breaching the Capitol presents ethical issues that may require Pierce to withdraw. Pierce is representing at least 22 people charged in the Capitol riot, according to a review of court documents, the most of any defense attorney.

Legal experts said while it’s not unusual for potential conflicts of interest to arise with attorneys in criminal cases, it is extremely rare for an attorney to represent so many defendants charged in relation to one underlying event. Of course, the Capitol riot was also an unprecedented event, launching one of the largest investigations in the Justice Department’s history with more than 725 people charged so far.

But the sheer number of Pierce clients makes conflict issues more likely, experts said, leaving it to judges and conflicts counsel to sort out potentially thorny issues, such as how to proceed if arguments in one case may undermine potential defenses in other cases involving the same attorney.

Additionally, given his political posturing, Pierce will need to take care to avoid pushing an ideological agenda over the interests of his clients, ethics experts said.

“There are many hundreds of regular American citizens who desperately needed (and many who still need) legal representation in connection with the events of January 6th,” Pierce said in an email. “I am not one to sit idly by in that kind of situation. So I am helping as many of them as humanly possible.”

Pierce said he hopes the large number of Jan. 6 defendants he represents reflects that “people think we are pretty good at what we do.” He said he would withdraw from any case in which a clear conflict arises.

“I have seen no such conflict to date. The court, which I greatly respect, is simply doing its job under Federal Rule of Criminal Procedure 44 to ensure the rights of defendants are protected,” Pierce said. “That is entirely appropriate.”

U.S. District Judge Emmet Sullivan of the District of Columbia last month appointed a conflicts counsel in the Jan. 6 case of David Lesperance, his pastor James Varnell Cusick Jr., and the pastor’s son, Casey Cusick, all of whom are represented by Pierce.

After federal prosecutors flagged similar potential issues earlier this month in the case of Florida police officer Kevin Tuck, his son Nathaniel Tuck and Paul Rae, U.S. District Judge Timothy Kelly also named a conflicts counsel in that case.

In both cases, judges have turned to Santha Sonenberg to serve as conflicts counsel. Sonenberg is a former longtime public defender in the D.C. Public Defender Service and an expert on defendants’ rights, who has lectured at Harvard Law School.

Sonenberg will likely interview all defendants and Pierce separately to gauge their defense strategies and their views about the future of their cases, including whether they would be interested in a plea deal, said Michael Frisch, a professor and ethics counsel at Georgetown University Law Center.

Frisch said the lawyer will be on the lookout for issues such as whether a piece of evidence minimizes or maximizes one co-defendant’s culpability compared to another, or whether one co-defendant may want to cooperate with the government and turn over evidence against another. The defendants can waive any possible conflict if they wish to retain the same attorney.

“The question for the conflicts counsel and ultimately for the judge is whether there’s an inconsistency in the interest of the two clients that is serious enough to say that the lawyer cannot possibly competently represent both of them in the same matter,” said Stephen Gillers, a professor at New York University School of Law who studies legal ethics.

The final decision will rest with the judge. And while Gillers said experienced trial court judges have likely dealt with similar issues in the past, it can be a difficult decision. If a judge disqualifies an attorney, a defendant can argue on appeal that they were denied counsel of their choosing. If, on the other hand, a judge allows a lawyer with a conflict to remain on the case, a conviction can be overturned due to ineffective assistance of counsel.

Pierce’s large number of representations has been an issue before in Jan. 6 cases. When he was hospitalized in late-August, reportedly with COVID-19, he stopped appearing in court, leaving an unlicensed associate who was under indictment in a fraud case to appear in his place. Federal prosecutors refused to work with the associate and declared all of his cases were at a “standstill” until he returned.

The other ethical tripwire Pierce has to avoid, legal experts said, is having his broader political agenda overshadow the defense of his clients.

Pierce, a graduate of Harvard Law School, is a former partner at Quinn Emanuel Urquhart & Sullivan and Latham & Watkins, with a background primarily in civil litigation. His former firm Pierce Bainbridge Beck Price & Hech imploded over financial woes in 2020 and he has since emerged as a populist lawyer, attaching himself to right-wing causes and the defense of Jan. 6 defendants.

Pierce maintains an active Twitter presence where he frequently lambasts the Biden administration, COVID-19 vaccine mandates, and the D.C. establishment. He earned significant attention on the right for his role in defending Kyle Rittenhouse, the Wisconsin teenager who shot and killed two people during a Black Lives Matter protest and was later acquitted after arguing self-defense. Pierce left Rittenhouse’s defense team before trial, reportedly over a bitter financial dispute with Rittenhouse’s family.

Gillers said Pierce’s open support for many of the causes championed by Jan. 6 defendants likely helped him attract so many clients accused of storming the Capitol.

“Clients seek out lawyers, especially in high-profile cases with political coloration, who are ideologically aligned with them, that’s true on the left and right,” he said. “They may well accurately believe that he will take legal positions that resonate with their political beliefs that a lawyer who doesn’t share his view wouldn’t make.”

Many Jan. 6 defendants who aren’t represented by public defenders, especially those affiliated with extremist groups, have turned to outspoken right-wing lawyers including Pierce, Jonathan Moseley and Bradford Geyer.

Pierce has previously vowed to take all of his cases to trial, saying at a rally last year that “in that process we are going to find out what actually happened on Jan. 6.” He has also alluded on Twitter to unfounded theories about FBI agents or informants provoking the mob to attack.

But such a strategy can be legally fraught. Judges across the federal bench in D.C. have shown little patience for attempts to minimize the significance of the riot and have adamantly rejected conspiracy theories about the attack.

On Wednesday, U.S. District Judge Amit Mehta threatened sanctions against Moseley, an attorney representing a member of the Oath Keepers, who in a court filing suggested that the House Jan. 6 select committee is obstructing and undermining criminal cases tied to the riot. Mehta warned Moseley in a docket order to “keep the moralizing and sermonizing out of his motions.”

“These proceedings will not become a platform for counsel’s personal political views,” Mehta wrote.