A former Pennsylvania legislative staffer arrested on Computergate-related charges has sued two large law firms for malpractice, alleging their allegiances to state legislators caused them to ignore his pleas to strike a deal with prosecutors and testify against the legislators, resulting in 48 charges being brought against him.
Elmer “Al” Bowman, who ultimately pled guilty to one charge of conspiracy to commit conflict of interest, said in his complaint that subsequent conversations with prosecutors have led him to believe they would have offered him immunity for his testimony against legislators.
Bowman has sued Buchanan Ingersoll & Rooney and one of the firm’s partners, James Becker, in Allegheny County Common Pleas Court. Bowman has also sued K&L Gates, of counsel John P. Krill Jr., partner Linda J. Shorey and associate Abram D. Burnett. The Pennsylvania House Republican Caucus hired and paid the two firms to represent Bowman during the investigation until he ultimately retained his own counsel.
Bowman has raised legal malpractice, breach of fiduciary duty and breach of contract claims against all of the defendants.
According to the complaint, Bowman was employed by the House Republican Caucus when in 2008 he received a subpoena to testify before a grand jury investigating whether legislators were using public money and public employee time for political campaign activities. Computergate dealt specifically with the House Republican Caucus’ purchase of computer software to aid in political activity. It was separate from the Bonusgate investigation that initially looked into Democrats paying staffers bonuses for their work on campaigns on state time.
At the time he received the subpoena, Bowman reported directly to and was directly supervised by Brett Feese, the legal counsel to the Republican caucus. Feese told Bowman the caucus was paying for legal representation for House employees served with subpoenas. Bowman was later told K&L Gates would represent him, with Krill, Shorey and Burnett assigned to the case, according to the complaint.
Bowman met with the attorneys in September, October and November of 2008, at which points he detailed his knowledge of the activities of Feese, Feese’s aide Jill Seaman, former state House Speaker John Perzel, his aide Brian Preski and current state Speaker of the House Sam Smith, according to the complaint.
Bowman alleged in the complaint that, to a large extent, the information he provided incriminated those people in “improper and unlawful activities.”
Smith was never charged with any wrongdoing and testified at Feese’s trial. Feese and Seaman were found guilty after a trial and Perzel and Preski pleaded guilty.
Bowman said he was unaware that the K&L Gates attorneys were also representing Feese, Seaman, Preski, Smith and other people employed by the Republican caucus.
“At no time while he was providing confidential attorney-client communications to [the K&L Gates] defendants and seeking their advice and counsel was Bowman advised that they had a conflict of interest in representing both Bowman and those individuals about whom Bowman was providing incriminatory information,” he alleged in the complaint.
Bowman said he repeatedly asked the attorneys to negotiate on his behalf with prosecutors from the Office of Attorney General to secure his immunized testimony before the grand jury or other cooperation with the prosecution. He alleged that the lawyers ignored his pleas and instead arranged for prosecutors to meet with Smith, Preski, Seaman and others so they could proffer exculpatory statements that would have contradicted Bowman’s, according to the complaint.
Bowman alleged K&L Gates had a further conflict with respect to Smith because it enjoyed financial benefits from Smith’s position as speaker, “utilizing this relationship to foster lobbying activities as well as contracts for legal representation.”
When Bowman was arrested in December 2009, he alleged he learned prosecutors talked with the K&L Gates defendants and offered immunity for Bowman’s testimony. Bowman said, according to the complaint, that he also learned the attorneys suggested to the prosecutors that Bowman was unable or unwilling to cooperate with the government. Bowman said he was never told of these discussions with the prosecutors and was rather told that the government was not ready to meet with him, according to the complaint.
In December 2008, the supervising judge of the grand jury entered an order finding that K&L Gates had a conflict representing multiple witnesses before the grand jury. The judge ordered new and separate counsel be provided for the witnesses, according to the complaint.
On Jan. 29, 2009, Buchanan Ingersoll and Becker were hired by the House Republican Caucus to represent Bowman. According to the complaint, Becker entered a joint defense agreement with the K&L Gates attorneys, agreeing to keep them apprised of Bowman’s decisions and his appearance before the grand jury.
Bowman said this perpetuated the conflict of interest. He said the same added conflict existed between Smith and Buchanan Ingersoll as it did with K&L Gates regarding lobbying and legal work, according to the complaint.
Bowman said he repeatedly asked Becker to arrange for Bowman to meet with prosecutors, but nothing was arranged. Beginning in February 2009, Bowman said he began to ask Becker why the meetings weren’t scheduled and Becker said he was trying to finalize details for a meeting, according to the complaint.
On Nov. 9, 2009, Bowman became frustrated with the inaction to the point that he hired his own counsel. He was fired from his job that month and was arrested Nov. 13, 2009, on 48 criminal counts related to the grand jury investigation. He said he learned after his arrest that prosecutors had talked with Becker and offered immunity for Bowman’s testimony, according to the complaint.
“The actions of the defendants resulted in Bowman’s arrest and prosecution for criminal charges for which he otherwise would have received immunity from prosecution,” Bowman said in the complaint, filed by his attorney, Donna J. McClelland of Greensburg, Pa.
Ansley S. Westbrook II of Dinsmore & Shohl in Pittsburgh is listed on the docket as an attorney for the defense, but it doesn’t specify whether that is for all of the defendants. Calls to McClelland, Westbrook and Krill were not returned. Shorey declined to comment. A spokeswoman for Buchanan Ingersoll declined to comment on pending litigation.
“The firm believes that the complaint filed by Mr. Bowman is riddled with factual inaccuracies, and is without merit,” a K&L Gates spokesman said in an e-mailed statement. “The firm will contest the complaint vigorously in court if it is pursued, and the firm has no further comment.”
Lawrence J. Fox, a Drinker Biddle & Reath partner whose practice focuses on professional responsibility, said representing multiple defendants in a criminal matter is possible, but it is difficult to achieve. He was speaking in general terms and not about the specific facts of this case.
“It is OK sometimes for people to represent multiple defendants but it’s rare and it has to be done very carefully, and even if it is done very carefully in the beginning, you have to be on the lookout for conflicts that develop during the representation,” Fox said.
Fox called a judge’s ruling to remove K&L Gates from representing Bowman a “neutral fact” in the case. He said it doesn’t bless everything the firm did before the representation, but at the same time the firm could argue the judge was wrong or that its representation prior to withdrawing was completely appropriate. He said it would be an important fact for the plaintiff, but in the end would probably be a neutral factor in the case.