February 19, 2004
Dear Mr. Risner:
Please be advised that this law firm has been retained by KXCI
Community Radio. Attorney Bradley Miller is still
considered counsel of record for KXCI. However, this firm was also retained for specific legal research projects. I am writing
because of a serious concern on my part regarding your work with KXCI. While I have a natural reluctance to raise this type
of issue, I am compelled by what I perceive to
be my ethical obligations to raise the following points in light of the mounting evidence that supports these concerns.
Having had the opportunity to review most of the
KXCI minutes, bylaws and resolutions, it appears
that from 1982 to 1990 you sat as an active member of the KXCI Board of Directors and Executive Committee. During that time, the minutes suggest you were actively involved
with the research, preparation, review and revision
of various KXCI legal documents and projects, including but not limited to: i) research, preparation, review, revision and approval of KXCI bylaws; ii) research, review and approval of various contracts and agreements between KXCI
and third parties; iii) research, preparation,
review, revision and approval of internal kXCI policies; iv) research, review and establishment of KXCI legal compliance procedures for various governmental agencies; v)
research and reporting of various meeting rules
and regulations for closed meetings; vi) legal advice and
consultation regarding various and miscellaneous legal matters and lawsuits.
While KXCI undoubtedly appreciated your pro bono
legal work during your tenure as Board and Executive
Committee Member, the mounting evidence suggests that you also acted as KXCIs de facto counsel
and at the very least, you acted in your capacity as an attorney on a myriad of occasions, as documented by the corporate minutes. To confirm your participation not only
as Director of KXCI, but also as the perceived
attorney for KXCI, we solicited the opinions of several past and present KXCI members to see if their impression of your work supported the written documentation that you acted as counsel for KXCI on numerous occasions. The overwhelming
impression was that you in fact were acting in the capacity of counsel for KXCI and on several occasions, you apparently represented to others and held yourself out as counsel
for KXCI. This brings me to my direct concern.
Your present stance with respect to KXCI is clearly
adversarial, as it presently relates to the Democracy Initiative and as it related to your prior lawsuit against KXCI for
the production of their membership list. While you
may personally be critical of KXCIs policies on various issues, your ongoing fiduciary duties as a former KXCI Director, as it specifically relates to confidentiality,
and your ethical duties as former counsel for KXCI
must be addressed herein.
As you know, Arizona Rules of Professional Conduct provide in relevant part as follows:
ER 1.6 Confidentiality of Information
(a) A lawyer shall not reveal information relating to the representation
of a client unless the client gives informed consent,
the disclosure is impliedly authorized in order
to carry out the representation or the disclosure is permitted or required....
ER 1.9 Duties to Former Clients
(a) A lawyer who has formerly represented a client
in a matter shall not thereafter represent another
person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing....
(c) A lawyer who has formerly represented a client in a matter
shall not thereafter:
(1) Use information relating to the representation to the disadvantage
of the former client except as these Rules would
permit or require with respect to a client, or
when the information has become generally known....
While the aforesaid citations are not meant to be exhaustive nor
conclusive, we have growing concern that the inside
knowledge and information you learned as a former Director and counsel for KXCI may have harmed KXCI and its members. As you know, you possess higher knowledge by virtue of your status with KXCI and as a result, you possess
a higher duty of care to act reasonably and responsibly
as to issues of confidentiality and issues that directly relate to KXCI.
As I understand, you have presently been spearheading and advising
others in an effort to modify portions of the
very bylaws that you helped research, prepare, review, revise and approve for KXCI. You have also previously instituted legal action against KXCI and have apparently threatened
to do so again. You have further been calling
for various KXCI policy changes through the so-called Democracy
Initiative and have apparently participated in various campaigns against KXCI, either through representation or association, and you have undoubtedly used your inside knowledge
of KXCI to your advantage as to how KXCI makes decisions,
settles cases, analyzes conflicts, conducts meetings, reviews issues, prepares legal documents
and records information. Your inside information and
knowledge has placed you and your present Democracy Initiative clients at an advantage and placed your former client KXCI, at a disadvantage. These acts and omissions have
caused us great concern and we take these matters
I know you will consider the aforesaid Rules, as well as the facts and circumstances
surrounding them in assessing whether your actions
have compromised our client's position. We would
appreciate your response to the issues raised herein as soon as possible and we hope any harm to KXCI can be promptly rectified. We await your response.
Gary A. Wolf