January 28, 2004
The Florida Bar
Department of Lawyer Regulation
651 East Jefferson Street
Tallahassee, Florida 32399-2300
Re: Barry Krischer, Palm Beach County State's Attorney
Ken Selvig, Palm Beach County Assistant State’s Attorney
Dear Sir or Madam:
This is a complaint pursuant to the Florida Rules of Professional Conduct, concerning the conduct of Mr. Barry Krischer and Mr. Ken Selvig, of the Palm Beach County State’s Attorney’s Office ("SAO").
On January 22, 2004, the Sun Sentinel reported that Palm Beach County State’s Attorney Krischer’s office released to it letters between attorneys representing Rush Limbaugh and the SAO. (Exhibit 1, Sun Sentinel, "Pro, con Limbaugh e-mails released," January 24, 2004.) The SAO also released a January 22, 2004, memorandum to file purporting to have made the release of these letters based on ethics advice from the Florida Attorney General’s office and the Florida Bar. (Exhibit 2, Selvig "Memo to the File," January 22, 2004.)
It is clear from public records obtained by Landmark Legal Foundation ("Landmark") that Mr. Krischer and Mr. Selvig have misrepresented the advice provided them by both the Florida Bar and the Florida Attorney General’s office in direct violation of the Florida Rules of Professional Conduct. (Exhibit 3, January 22, 2004 Florida Bar Call Record; and Exhibit 4, January 28, 2004 Office of the Attorney General, General Counsel Gleason letter.) Landmark respectfully requests that the Florida Bar initiate a formal investigation into this matter and take appropriate disciplinary action where merited.
In response to a January 22, 2004, telephone inquiry to the Florida Bar’s ethics office regarding the release pursuant to a public records request of records, including letters between defense counsel and the SAO, Mr. Krischer’s office represented in its memorandum to file that the Bar told prosecutors it had an ethical obligation to release the letters. According to a Florida Bar "Call Record" of Krischer’s inquiry, however, the Bar did no such thing and Mr. Krischer’s assertion appears to be a fabrication. The call record states:
Facts: Caller’s office received a public records request in Rush Limbaugh case. File includes letters from atty in SAO to Roy Black, defense counsel. Checked with AG’s office and AG says the files are public records except that there are 2 letters which include plea negotiations which are not normally to be revealed so may or may not be public record. AG said to call ethics dept.
Answer: Can’t provide legal advice or interpret public record statute. All info in file is confidential as to his client, the state, under 4-1.6. Once legally compelled to provide info, it becomes a question of law, whether a/c privilege or public records. If client, state, only agrees to reveal what they are required to under public records law, caller must determine what is legally required and what is not. If unsure, may need to ask court to determine it for them. See 92-5 generally on confidentiality vs. privilege. How legal issues of public record statutes factor in is beyond an ethics opinion. (Exhibit 3.)
Clearly, the call record does not state that the SAO had an "ethical obligation to release the letters." In fact, it suggested that Krischer should consider seeking court intervention.
Moreover, in a January 28, 2004 letter, Patricia R. Gleason, General Counsel, Office of the Attorney General, declares that Mr. Krischer’s assistant, Ken Selvig, created an incomplete and misleading record of the Attorney General’s office’s advice on the matter. (Exhibit 4.) Ms. Gleason’s letter states, in relevant part:
... I am concerned that your memorandum to the file and the subsequent e-mail summarize only a portion of our conversation and