February 27, 2004
Mr. William Risner, Esq.
Dear Mr. Risner:
We are in receipt of
your February 26, 2004 response and would encourage you to not only review
the Ethical Cannons, but also the advisory opinions and case law regarding your acts and omissions. We regret to inform you
that your February 26 response does not begin to address the ethical issues of concern. Suffice it to say that we take issue
with the sum and substance of your February 26 letter and we will let the Ethics Committee address any remaining concerns
not addressed herein.
In your letter, your
comparing the legal work you performed for the Pima County Board of Supervisors is really comparing apples and oranges. As you know, different rules apply when dealing with governmental organizations versus private
parties and private entities. KXCI is not considered a governmental organization and therefore must be afforded the same standard
of care as any other private client, whether legal work was performed pro bono
I am basically a transactional
attorney and corporate counsel and sit on various Boards of both for-profit and nonprofit organizations and unfortunately,
one of the occupational hazards of sitting on Boards and also providing legal advice (pro
bono or not) is that one thereafter becomes "conflicted out" of any future disputes (and not just disputes relating to
a particular subject matter). One of the primary rules stressed at almost every CLE seminar regarding attorneys that sit on
Boards is that one cannot thereafter represent adverse interests against that same organization, whereas at best it creates
the appearance of impropriety and at worst it creates an actual conflict of interest,
as it has done in this case.
We also acknowledge your
own admissions in your February 26 letter that you in fact represented KXCI as counsel (regardless of how long ago). The KXCI
minutes are also replete with numerous other references and examples of internal and external legal matters to which you attended
for KXCI up through (as you suggest) 1992. Therefore, the only remaining issue is how much damage have you actually caused
It is also important
to note that KXCI came to me primarily for my expertise in the areas of corporate law, since I have formed and represent many
nonprofit and for-profit organizations. They initially were soliciting my opinion on the Bylaws and Bylaw procedures, contrary
to your allegations they initially hired me to attack you. It was only after I learned about your role as both counsel for
KXCI and counsel against KXCI that an ethical red flag went up for me (as it should) and the KXCI legal billings reflect this
fact. I therefore regret to inform you that your "cloak and dagger" conspiracy
theory about the KXCI Board being elite insiders that are out to get you and destroy the autonomy of the KXCI members is specious
at best. By the way, were you not also a self-proclaimed KXCI insider for 10 years?
I previously solicited
ethics opinions from several members of the Ethics Committee regarding my own role as a Board member on various nonprofit
Boards and providing occasional pro bono legal advise. Without exception, each
member's advice to me was the same, mainly "do not thereafter represent adverse
interests against the organization." You also quoted my February 19 letter on your unnumbered Page 6 of your February
26 letter and claiming the following to be "sheer nonsense."
"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."
It may interest you to
know that much of the wording about inside knowledge referenced in my above quote originally came from one of the members
of the Ethics Committee when they were originally advising me (and lawyers like yourself) not to represent adverse interests
against such organizations. You are thus claiming the Ethics Committee member who advised me is basically "a moron attorney. You will undoubtedly have an opportunity to explain
your views in greater detail to the Committee, whereas our Bar Complaint was forwarded to the Ethics Committee yesterday when
we failed to receive a timely response from you.
This February 27 letter
and your February 26 letter will also be forwarded to the Ethics Committee for their review. Bill, it seems clear from your
response that you feel you have done nothing wrong, that you do not appreciate the gravity of the situation and you feel you
have carte blanche to represent any party against any former client you wish, so
long as it does not involve the same subject matter. I disagree and I know members of the Ethics Committee disagree as well.
Gary A. Wolf