Landmark's Reply to ASAO Selvig's Response to Bar Complaint


Ms. Lillian Archbold

Bar Counsel

The Florida Bar

5900 North Andrews Avenue

Fort Lauderdale, FL 33309

Re: Complaint against Florida Bar member Kenneth Selvig
TFB File No. 2004-51,030(15E)

Dear Ms. Archbold:

This is complainant’s reply to Mr. Kenneth Selvig’s response to the above-referenced ethics filing.

First, it should be noted that despite your February 12, 2004 letter directing Mr. Selvig to provide complainant with “a complete copy of everything you provide to The Florida Bar during the pendency of this matter,” to date complainant has not received any such information from Mr. Selvig or his counsel, Mr. Arthur I. Jacobs. In fact, not until late Friday, March 5, 2004 did complainant receive Mr. Selvig’s response, which had been released to the media by Mr. Michael Edmondson, spokesman for Palm Beach County State Attorney Barry Krischer. A member of the media, seeking comment from complainant, provided a copy of Mr. Selvig’s response to complainant. Please note further that Mr. Jacobs specifically indicates in his February 27, 2004 letter -- which serves as Mr. Selvig’s response -- that he provided a copy to complainant. The mail is slow, but not that slow.

Mr. Selvig’s response says many things, yet it fails to address adequately the core issue in the January 28, 2004 complaint. First, the issue is not, as Mr. Jacobs appears to contend, whether the release of the correspondence between the State Attorney’s Office (“SAO”) and Mr. Rush Limbaugh’s counsel, Mr. Roy Black, was legally or ethically proper under The Florida Rules of Professional Conduct. The issue is not whether the SAO was supposedly compelled to release the correspondence under the Florida Public Records law. The issue is whether Mr. Selvig (and Mr. Krischer) misrepresented advice provided them by both the Florida Bar and the Florida Attorney General’s office. This is the sole basis for the complaint. And the question before the Bar is whether that misrepresentation violated The Florida Rules of Professional Conduct.

According to Mr. Selvig’s January 22, 2004 memorandum to file, the SAO “received a public records request from Peter Franceschina of the Sun-Sentinel for, among other things, any correspondence to or from Roy Black and his law firm. …” As an aside, Mr. Jacobs’s February 27, 2004 response to the Bar repeatedly claims that the SAO released the correspondence pursuant to complainant’s public records request. Indeed, he writes that “the only reason the records … were made public is that [complainant] asked for them.”

Clearly, Mr. Selvig’s own memorandum to file, if it is to be believed, contradicts Mr. Jacobs’s factual representations to the Bar. It is worth noting this when weighing the veracity of the arguments in this case. Moreover, complainant has since filed a second public records request with the SAO to determine whether Mr. Franceschina’s public records request specifically seeking the correspondence was made at the suggestion of the SAO, and whether the SAO has released such letters (or asserted certain exemptions) in any other public record requests.

More to the point, Mr. Selvig’s January 22, 2004 memorandum states, in relevant part:

Yesterday afternoon I 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 a
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