Prosecutors said yesterday that State Sen. Vincent J. Fumo's lawyer, Richard A. Sprague, has a likely conflict of interest because he also represented the alleged victims in the case - and could even be called as a witness himself at next year's trial.
At one point or another, Sprague's firm has represented Fumo personally as well as the three "victim" organizations he is accused of defrauding - the state Senate and two nonprofits, Citizens' Alliance for Better Neighborhoods and the Independence Seaport Museum. In all, the firm of Sprague & Sprague has been paid more than $1.3 million for its work.
That raises questions about whose interests the lawyers were serving, the organizations' or Fumo's, prosecutors said in a motion filed yesterday asking the judge to consider removing the defense lawyers from the case.
The firm might have represented all those clients "for the single purpose of protecting Fumo's position, even at the expense of others," Assistant U.S. Attorney John Pease wrote yesterday.
He went on to suggest that Fumo might have placed lawyers there in an effort to "control and limit" how much employees and board members told the FBI.
"A jury may readily conclude that Fumo placed his chosen attorneys . . . to assure the entities that Fumo's conduct was blameless, at the same time that criminal activity actually continued," the motion said.
Mark Sheppard, a lawyer at the Sprague firm, would not comment on the specifics of the motion.
But he said it was unfortunate that the U.S. Attorney's Office files such motions "for tactical reasons to smear defense counsel and to remove attorneys who vigorously defend their clients."
Yesterday's filing was the most pointed attack in what has become years of fierce exchanges between prosecutors and Fumo's defense team.
Two weeks ago, prosecutors sent a secret, advance copy of the latest motion to defense lawyers and offered not to make the conflict allegations public if the defense lawyers dropped out of the case.
"The answer was an emphatic no," a person involved said. "Two words you can't print."
Pease declined to comment.
The sweeping 66-page motion also provides fresh details of the case not found in Fumo's Feb. 6 indictment:
Frank Wallace, a private investigator used by Fumo and paid with state funds, swept the senator's offices and those of his City Council allies for listening devices. Those allies weren't named.
The government said Wallace would testify at trial that he was worried the sweeps were wrong, but was later told that Sprague said they were permissible. Wallace also told authorities that Sheppard urged him to pick an attorney recommended by the Fumo defense team. When Wallace hired his own lawyer, a top Fumo aide said the Senate would not pay his legal fees, as it has for other aides.
Citizens' Alliance has paid more than $1 million to defend Ruth Arnao, its former executive director and a former Fumo Senate aide, who was also indicted. Prosecutors said they believe the nonprofit is still paying the legal fees, which continue to mount.
Another Sprague lawyer, Geoffrey Johnson, had represented Citizens' Alliance at critical points during the federal probe and recommended in 2004 that its board approve en masse 12 years' worth of expenses "with absolutely no scrutiny."
The board took his advice and signed off on expenses at the heart of the federal case, including the purchase of a luxury minivan for Fumo's personal use, a lawsuit against a political foe of the senator's, and $250,000 in political polling, the motion said.
The government also said that Johnson tried to persuade the lawyer for the New York polling firm, Global Strategies, to chalk the expense up to an accounting mistake, thereby giving Citizens' Alliance a cover story. That lawyer rejected the request because the story wasn't true, the motion said. He also will be a trial witness.
In fact, the government said, it planned to put on the stand all members of the Citizens' Alliance board. If Sprague would be allowed to continue on the case, it would set up a situation in which the firm would be cross-examining its former clients.
Fumo has steadfastly denied the accusations and remains in the Senate while fighting the charges. His trial is expected to begin in February.
The motion yesterday said Sprague would be called as a witness against Fumo on several issues critical to the government's case, including the senator's personal use of his state staff.
Once a week, Fumo had dispatched aides to Sprague's home in Haverford to have his shirts laundered. Sprague, a longtime Fumo friend, has said publicly that the senator did this because he liked the way the lawyer's aides handled his clothes.
According to grand jury testimony, Fumo also had his Senate staff call a hotel in London where Sprague was staying to help the lawyer configure his computer in July 2000.
That same year, another witness said, Citizens' Alliance gave Sprague a cell phone to use during a European trip, the motion says.
Sheppard said that prosecutors had been aware of the firm's prior work for Citizens' Alliance, the museum and the Senate "for years" but did not raise objections until after the indictment, and after Sprague held a news conference at which he called the charges politically inspired and U.S. Attorney Patrick L. Meehan a political operative.
"We find it more than just a little curious that the government chose to file this motion only after this firm stated its intention to vigorously investigate this U.S. attorney's motivation to pursue a case against an effective and high-profile Democrat," Sheppard said.
He said Meehan's motivations are now "even more in question given the revelations coming from Washington regarding the administration's politicizing of the Department of Justice."
Federal prosecutors yesterday also questioned whether three attorneys representing Arnao - Edwin Jacobs, William Lamb and Joel Frank - should stay on the case.
Before the indictment, Lamb and Frank had been paid $680,000 by Citizens' Alliance to represent Arnao. The two therefore would be "torn between the interests of their client, and the interests of the entity that has paid and may continue to pay their bills," the motion said.
Frank called the timing of yesterday's motion "peculiar, coming three years into our involvement in the case and after the setting of a trial date."
"There's no way we're voluntarily getting out of the case," Frank said. "We believe we will be successful defending against the motion, as well as the underlying charges against Ruth."
Jacobs, an Atlantic City lawyer, was among a delegation that traveled with Fumo in 2002 to Cuba in a trip paid for by Citizens' Alliance. He has told the government that at the time he didn't know of Citizens' Alliance and agreed to go on the trip because he was curious about the effects of the U.S. trade embargo with Cuba and, as an automobile aficionado, had heard the streets of Havana were filled with cars from the 1950s.
Jacobs did not respond to requests for comment.
Prosecutors said they do not necessarily believe that all of the alleged conflicts are severe enough to warrant disqualification of the lawyers involved.
But the prosecutors raised all conceivable conflicts now because they do not want them to be an issue on appeal if Fumo is convicted.
U.S. District Judge William H. Yohn Jr. could rule that some of the relationships do not represent conflicts, the motion said, or that other conflicts may be waived by the parties involved.
Read more of The Inquirer's coverage of the case against State Sen. Vincent J. Fumo at http://go.philly.com/fumo
Contact staff writer Mario F. Cattabiani at 717-787-5990 or firstname.lastname@example.org.