For Immediate Release Contact: Eric Christensen
January 28, 2004 703-689-2370
(Herndon, VA) ... Landmark Legal Foundation announced today that it has filed an ethics complaint against Palm Beach County State Attorney Barry Krischer and Assistant State Attorney Kenneth Selvig seeking an independent investigation into their conduct in creating a false record to justify the release of confidential attorney communications in the Rush Limbaugh matter.
False statements by Kenneth Selvig about conversations with Florida Attorney General's Office.
In a January 22, 2004 memo to file, which the State Attorney’s Office (SAO) first released to the Sun-Sentinel the same day Selvig wrote, in part:
Yesterday afternoon I [Kenneth Selvig] spoke by telephone with Pat Gleason, the AG’s most knowledgeable person on the Public Records Law. I did not tell her the particular case I was calling about. The question posed was whether there is an exemption to the Public Record’s Law that would allow us to refuse to disclose a letter from an attorney offering to plead guilty in a case that is under investigation but not yet filed. It is my opinion that there is no exception to the law that will allow us to withhold the letter. Ms. Gleason agreed with my position. She recommended, and I agreed, that we should consult the Florida Bar for an opinion on whether the release of the attorney’s letter would possibly raise an issue under the Rules of Professional Responsibility (RPC)."
Today, Patricia Gleason, general counsel to the Office of the Attorney General, and with whom Selvig conferred, issued a letter strongly disputing Selvig’s characterization of their conversation. She said, in part:
… Specifically, I note that your records of this matter do not reflect that when you telephoned me you indicated it seemed difficult to believe that plea negotiation letters could be releasable prior to trial. While both agreed that we were unaware of any applicable statutory exemption, we also discussed the possibility that a court might refuse to authorize release based on constitutional concerns. For this reason, I recommended that in addition to seeking counsel from the Florida Bar as to any ethical concerns about releasing such materials, it was appropriate to notify defense counsel of the public records request and consider whether a judicial resolution was advisable.
Both your file memorandum and e-mail emphasize that you did not tell me who the defendant was in this situation. However, that should not and cannot matter. Over the years, I have had many conversations with assistant state attorneys about pressing public records issues. These conversations have been candid and in my view, have helped the state to resolve public records issues and focus on the upcoming trial. In this case, however, it seems to me that the purpose in contacting me about this issue may not have been to obtain impartial advice in an open government issue, but rather to use a part of our conversation to justify your office’s decision that the documents should be released. This is disappointing to me personally and professionally.
Mark R. Levin, Landmark’s president, stated: "This is a damning condemnation of Selvig’s unconscionable conduct. Rather than honestly seeking guidance from one of Florida’s top legal ethics experts, Selvig hoped to use Ms. Gleason to justify blatantly political conduct."
False statements by Barry Krischer about conversations with the Florida Bar.
In the same January 22, 2004, memo to file, Krischer notes having spoken with Ms. Barbara Moore, and that discussion was characterized as follows:
This morning, Barry [Krischer] spoke with Barbara Moore of the Florida Bar about the issue. Ms. Moore’s opinion is that the Florida Public Record’s Law takes precedence over any possible issue raised by the RPC. She said that there is an e