December 7, 2007
Would You Take Barry Bonds As a Client?
Home run king Barry Bonds is supposed to appear in federal court for his initial appearance -- and most likely an arraignment -- on perjury and obstruction of justice charges contained in a federal indictment issued in San Francisco. A Wall Street Journal article (here), by Bay Area legal maven Justin Scheck, points out the problems Bonds has had in hiring a new attorney with significant federal court experience to conduct the defense at trial. The article notes that Bonds met with John Keker, of Keker & Van Nest, a nationally-known white collar defense lawyer who has defended, among others, former investment banker Frank Quattrone, who was also charged with obstruction of justice arising from a forwarded e-mail. There may have been an issue in hiring Keker because he represented the baseball players union in its fight to keep the government from getting the results of drug tests players took (see a New York Daily News story here). In discussing the approach to Keker, and various in-fighting among Bonds' current legal team, the WSJ article raises in my mind the question whether a lawyer would really even want Bonds as a client.
There are obvious benefits to being the attorney for one of the most famous players in professional sports history, in a trial that will gain national -- and probably even international -- attention. Bonds' lead counsel will be on television daily whenever there is any court proceeding, and the chance to have your picture appear over the shoulder of an ESPN SportsCenter anchor on a regular basis is publicity you just can't buy. The lawyer will join the pantheon of well-known defense counsel in this country, one of the "usual suspects" who will begin to appear regularly in a variety of cases, or be asked to comment on them. Pretty tempting, isn't it?
But from this ivory tower, I have to say that there are certainly a few major red flags that a lawyer has to think about seriously before undertaking the representation. The article notes that Bonds asked Keker for a discount on his $900 hourly rate, and wanted another law firm to review the billings. That certainly goes against the grain in white collar cases, in which cost is often not an obstacle. Bonds' past baseball income plus future earnings potential, regardless of the outcome of the case, probably means he can afford Keker's rate. There's nothing wrong with asking for a discount, and it makes good business sense to double check bills. Not the best way to begin a relationship, but it shouldn't be a showstopper, either.
If that was all, then the fact that Bonds wants a discount and will flyspeck bills would hardly be of interest beyond the stereotype of the allegedly cheapskate athlete. But the article also says that "Keker was concerned he wouldn't have control over Mr. Bonds's public relations and legal strategies and bridled at the prospect of collaborating with the player's current legal team." [Italics added] That starts to spell trouble for the lawyer. The fact that Bonds' current legal team is a bit on the dysfunctional side is problematic, but if the strings in the case will be pulled by someone else, then there is a significant danger for the lawyer. A defense lawyer being pulled in different directions, or forced to clear legal strategies through the "home office," may not be effective. Trust is a two-way street, and if the lawyer is not going to be trusted, then why take on the case?
It is always difficult to control a high-profile client who is used to being in charge of everything -- look no further than Lord Conrad Black, when the judge in his case threatened to take action against him for out-of-court comments during the trial if his lawyers didn't muzzle him. I'm not saying the lawyer has to control everything, but a trial is a lot like any theatrical production in which everyone has a role to play. The client who believes he or she can "talk my way out of this" or who showers the government with disdain, no doubt believing it is richly deserved, is looking for trouble. Heaven forbid the client demand the opportunity to testify to "explain" everything for the jury so they will understand how misunderstood the defendant really is -- that drooling person would be the prosecutor waiting for the cross-examination. Especially in a perjury and obstruction prosecution, portraying the defendant as an honest person whose statements were just misunderstood is paramount, but the defendant may be the worst person to say that. The hardest decision in a case, especially a white collar prosecution, is whether the defendant will testify, and there can only be two people involved: the lead counsel and the client. If there is a fight over control of the case from the beginning, then it means other agendas may be playing out, with the trial lawyer getting the blame if things go wrong.
So, would you really want to be Barry Bonds' lawyer? Tough call, but it would be pretty cool to appear on SportsCenter right after the Patriots highlights. (ph)
UPDATE: The San Jose Mercury News reports (here) that Bonds has added two Bay Area attorneys: Allen Ruby and Christine Arguedas. Ruby has represented the NFL in one of Oakland Raiders owner Al Davis' many lawsuits against the league, and Arguedas is well-known in white collar crime circles for her work recently on behalf of various corporate executives caught up in options backdating, including the former GC at Apple, and the former general counsel of Hewlett-Packard in that company's pretexting imbroglio.
Arguedas has represented others in connection with the Balco (Bay Area Laboratory Cooperative) steroids investigation, including witnesses who appeared before the grand jury. That gives her some familiarity with the case. While it can be dicey to represent different people involved in a grand jury investigation, I doubt there is a conflict of interest problem for her because there does not seem to be any overlap between the witnesses who testified before the Balco grand jury and those who are likely to be called in the Bonds trial. It remains to be seen, however, whether prosecutors will look for a potential conflict of interest as the basis to move to knock Arguedas off the case. Another interesting question will be whether Ruby or Arguedas takes the lead in the case, or whether they are co-leaders of the defense -- which one gets to be on SportsCenter. No word yet on whether either discounted his/her fees for the case. (ph)
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Having met Barry Bonds socially, I found him to be intilligent and personable. Bonds is no stranger to having representation. If you recall, his divorce case went to the California Supreme Court. I am not aware of any reports of Bonds having been a difficult client or unwilling to pay his bills.
As to Keker, he certainly has a great reputation, and he has successfully represented some high profile people. I don't understand the implication that Keker would want to jettison the experience and understanding of Bonds' current representation, or that Keker would have to be a dictator in representing Bonds. Don't you think he would appreciate the in-put of the people who have represented Bonds and who (presumably) have a longstanding relationship of trust with Bonds. Moreover, in my practice, I always appreciate the input of the client(and I usually to defer to the client) when there are decisions that are essentially judgment calls. After discussing the issue, I really can't recall a major decision where a client has ever wanted to go off the reservation. Do you think Dickie Scruggs, or any other intilligent client, would give Keker carte blanche in terms of decision making in his case? Why shouldn't Barry Bonds want to be part of the decision making process in his case?
As to the billing issue, why would any client want to give a lawyer a blank check -- particularly at $900 an hour? It seems entirely reasonable that if insurance companies and corporate clients make it clear to counsel that their bills will be reviewed (as you describe it "flyspecked"), why shouldn't a dumb athlete like Barry have a chance to look over a bill to make sure that he is being properly charged?
Posted by: another view | Dec 8, 2007 8:26:57 AM