One battle in the FBI public corruption investigation is the government’s motion to disqualify noted El Paso attorney Mary Stillinger from representing three clients, named in the government motion as Ysleta School Board Trustee Milton “Mickey” Duntley, El Paso School Board Trustee Charles Roark, and former NCED Chief Operating Officer Ernie Lopez.

The government motion filed June 4 in U.S. District Court, Western District of Texas, calls them “targets,” although in a June 20 El Paso Times story [link] Stillinger denied that her clients have received notification from the government that her clients are “targets.” Stillinger filed two responses to the government motion, one a response filed June 18, and the other a motion to strike the government’s motion, filed June 19.

Interestingly, Stillinger’s first response contains a footnote stating that “the prosecutors have indicated that they will be filing similar motions with respect to other attorney’s multiple representations.”

The most recent documents available on the government document storage and retrieval system, called PACER, are the government’s June 28 response to Stillinger’s first motion, and a July 3 motion asking for more time to assess Stillinger’s second motion.

This series of documents presents only a tiny fraction of the paper that certainly will be generated as this case develops, and the issues that most observers believe will engulf El Paso’s political, business and legal communities. This could happen by this week, as the buzz is growing louder that indictments and/or plea agreements will become public.

Meanwhile, Newspaper Tree presents a summary of the documents thus far, and links to the original documents, as a matter of public record:

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JUNE 4, 2007: THE BEGINNING [link]

The government’s original filing, on June 4, 2007, is titled “Motion to Disqualify Counsel for Conflict of Interest, and Brief in Support Thereof.”

The Cause Number is given as EP-06-CR-1369FM, the same number assigned to the “Information Document” – a charging document similar to an indictment -- describing Travis Ketner’s guilty plea. The Information was filed June 8, while the motion to disqualify Stillinger was filed June 4.

The June 4 filing opens with a “Statement of Facts” – that the FBI and the U.S. Attorney’s office have been investigating white collar crime and political corruption in El Paso for approximately three years. The investigation included intercepting electronic and wire communications.

Part 2 of the document is titled “Duntley/Lopez Conflict.” It alleges that in 2004, while Lopez was at NCED, the health care services company Access was seeking a contract with the Ysleta School Board, of which Duntley was a trustee. The national company Precis merged with Access, and NCED CEO Bob Jones because a Precis board member, NCED became a major shareholder in Precis, and Access president Frank Apodaca became President and CEO of Precis.

On Sept. 8, 2004, according to the government, Apodaca sent emails to three people, including Lopez, seeking “employment with any NCED related company for Duntley’s son.” The emails were copied to eight others, according to the government’s filing.

Duntley’s son was fired, according to the filing. On Oct. 11, 2005, Duntley and someone identified as “Schwartz” (no first reference is given) discuss the issue in an intercepted communication. According to the government, Schwartz told Duntley that Jones would ensure Duntley’s son had a job: “Bob said, I just want you to let the young man know he’s in our plans,” the government alleges Schwartz told Duntley.

“If LOPEZ wanted to cooperate, he would be placed in the position of addressing this issue,” the government document states.

Part 4 of the document is titled “Lopez/Roark Conflict.” The government states that Roark was not intercepted on wire tap, but that his position as a trustee on the El Paso School Board and as executive director of Hospice of El Paso presented a conflict. Hospice was run by a board of directors, with Bob Jones, NCED CEO, on the board. Hospice was located in an NCED building, according to the government.

NCED, Jones, and Roark are the focus of investigators in a wire fraud investigation regarding a Chicago-based charity, according to the government document. On July 25, 2003, the subject of Hospice came up at an NCED board meeting, at which Lopez appears as present in the minutes. “Clearly, Lopez is a potential witness in a case against Roark, if one should be filed,” states the government’s motion to disqualify Stillinger.

The government’s motion ends with a section titled “Law and Argument,” in which the basic thrust of the argument is that if Stillinger’s clients are indicted in the same case, their interests may conflict if one offers testimony against another. The government cites the Federal Rules of Criminal Procedure, Rule 44(c), which addresses clients who have been charged. However, the government argues that the intent of the rule “places the instant situation squarely within the Court’s responsibilities.” The government also cites Rule 1.06 of the Texas Disciplinary Rules of Professional Conduct.

If Stillinger’s clients are charged in separate indictments, the government argues, “disqualification is required where successive representation involves ‘substantially replated matters.’”

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JUNE 18, 2007: STILLINGER’S FIRST RESPONSE [link]

First, Stillinger notes that Rule 44(c) pertains only once a client has been charged. She acknowledges that Rule 1.06 applies, but states that “those rules do not give the Government a cause of action to interfere with counsel’s relationship with her clients. … Short of an allegation that counsel is obstructing justice, the Government has no ability to bring an action before the Court to disqualify counsel.” Stillinger suggests that the government file a grievance with the State Bar, “as this is the appropriate forum to hear such a concern.”

She also argues that it is speculative to assume that her three clients will be charged together.

Further, Stillinger challenges the notion that one client may be in conflict with another. For example, in the government’s allegation of a conflict between Lopez and Roark, the evidence is board minutes. “(Lopez) typically stayed for his own presentation and left,” Stillinger states. “There is no allegation Mr. Lopez ever discussed Hospice, was actually present when Hospice was discussed, or participated in any correspondence or documentation of any kind regarding Hospice.”

Stillinger claims the government is attempted to coerce her clients into giving information.

“The Government is fishing for information to which it is not entitled at this time, and is further attempting to interfere in the highly protected attorney-client relationship of these three individuals,” she writes.

As a footnote, she adds that “the prosecutors have indicated that they will be filing similar motions with respect to other attorney’s multiple representations.”

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JUNE 19, 2007: STILLINGER’S SECOND RESPONSE [link]

Stillinger filed this document June 19, asking that the Court throw out the government’s motion because it was improperly filed. The government filed its motion with the Ketner case number, and her clients have nothing to do with Ketner and are not among the unindicted co-conspirators mentioned in the Information document that laid out the charges against Ketner.

She also notes problems with the electronic filing system for filing her motion, which included the filing system’s failure to recognize her because she is not an attorney either for the United States or Ketner. Stillinger notes that she filed as an attorney for the U.S.A., and “included a lengthy note” indicating it was her, not the U.S.A., filing her motion.

She suggests the government allow its initial motion to be struck as improperly filed, and re-filed under its own case number, “if the Government should choose to do so.”

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JUNE 28, 2007: GOVERNMENT RESPONSE TO STILLINGER’S FIRST RESPONSE [link]

The government argues that there is precedent for finding a conflict of interest at the grand jury stage, even when clients have not been charged. The government also cites a previous ruling that did not find a conflict, but that suggested a conflict could exist if “a grant of immunity was offered in exchange for a client’s testimony” or if a lawyer might receive “witness A information that was detrimental to the interest of witness B.”

The government also argues that the e-mail sent to Lopez on Sept. 8, 2004 regarding employment for Duntley’s son is sufficient to establish a connection between the two. The government states that Stillinger’s claim that Lopez likely wasn’t present at the NCED board meeting of July 25, 2003, in which the board discussed the Hospice lease, “does not negate the connection between the Chief Operating Officer of NCED and the Executive Director of Hospice’s connection to a rent free scheme provided by NCED for Hospice.”

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JULY 3, 2007: GOVERNMENT RESPONSE TO STILLINGER’S MOTION TO STRIKE [link]

The government asks to have until July 13 to respond to Stillinger’s Motion to Strike.