Delaware auditor’s attorney seeks state funds for her defense

By Craig Anderson
Posted 10/18/21

WILMINGTON — An attorney on Thursday filed a motion seeking state funds for the defense of indicted State Auditor Kathy McGuiness, who is charged with two felonies and three misdemeanors for alleged misconduct in office.

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Delaware auditor’s attorney seeks state funds for her defense

Posted

WILMINGTON — An attorney on Thursday filed a motion seeking state funds for the defense of indicted State Auditor Kathy McGuiness, who is charged with two felonies and three misdemeanors for alleged misconduct in office.

Attorney Steve Wood pointed to Ms. McGuiness’ role as a public officer of the state, thus precluding the Department of Justice from representing her due to a potential conflict of interest. Therefore, Mr. Wood said a private attorney must be appointed, as the court allows.

According to DOJ spokesman Mat Marshall, “It is sadly consistent with the defendant’s charged conduct that she would demand the taxpayers spend extra money when the law clearly commands a less profligate alternative.”

On Monday, DOJ filed a petition requesting that the motion be denied, pointing to Delaware law allowing for the provision of counsel for public officials “in a criminal ... action against the person arising from state employment.”

In DOJ’s opinion, “The language is unambiguous: such a defendant, regardless of his or her financial means, is entitled to a court-appointed attorney from the Department of Justice, or, if a conflict exists, the Office of Defense Services.”

DOJ also said that Ms. McGuiness — whose position could bring a conflict of interest with a court-appointed attorney from DOJ — has no such conflict with ODS.

Also, ODS handles nearly 35,000 cases annually. “In none of those is anyone compensated close to ($550) per hour,” DOJ said.

Paying such a rate “would exacerbate existing systemic inequities,” the department added.

DOJ maintains that granting Ms. McGuiness a private attorney to be paid by public funds would violate Delaware law and said the private lawyer would receive more than five times the rate of a state-appointed attorney, which is $100 an hour.

Ms. McGuiness is charged with conflict of interest, in violation of the State Officials’ Code of Conduct; felony theft; noncompliance with procurement law by structuring state payments; official misconduct; and felony witness intimidation. She entered a not guilty plea on all charges Tuesday.

Mr. Wood said he has represented Ms. McGuiness in the matter since approximately Sept. 10.

While Mr. Wood’s standard billing rate per hour is $625, he requested $550 for the McGuiness case. Mr. Wood said he and Ms. McGuiness negotiated the $550 rate before the indictment.

The defense attorney requested $425 hourly for associates and $325 for paralegals, on top of his own charges.

Additionally, Mr. Wood is seeking sanctions against Delaware Attorney General Kathy Jennings for remarks she made during an Oct. 11 news conference announcing the indictment.

He maintains that a statement made by Ms. Jennings violated the Delaware Lawyers’ Rules of Professional Conduct.

Speaking before media outside the Leonard L. Williams Justice Center in Wilmington that day, Ms. Jennings said, “Look, I have not spoken to the defendant, and that has been deliberate. I can tell you that the Division of Civil Rights and Public Trust has reached out to the auditor on several occasions, and she has declined to speak with them.”

In a filing, Mr. Wood opined that those remarks were “improper, and they are more likely than not to have a substantial likelihood of materially prejudicing an adjudicative proceeding in this case,” as defined by DLRPC.

The attorney called for sanctions to include a ban on all public comments by the attorney general and Attorney General’s Office employees. Also requested was “a finding of fact (by Delaware Superior Court) that certain statements made by the AG specified herein constitute a violation of DLRPC rule.”

A Superior Court judge canceled a first case review set for Monday, preferring to first meet with counsel in a scheduling conference within the next few weeks.

The decision came from Judge William C. Carpenter, assigned Tuesday to the case. Judge Carpenter notified Deputy Attorney General Mark Denney and Mr. Wood of the cancellation.

On Friday, the minority caucus responded to a request for comment on the indictment by saying through party leaders Sen. Gerald Hocker of Ocean View and Sen. Brian Pettyjohn of Georgetown: “The Senate Republicans will refrain from commenting until the criminal process has concluded.”

Joe Fulgham, a spokesman for the Republican caucus of the House of Representatives, said the GOP leadership also had no comment, adding that “the auditor maintains she is innocent of the charges, and her attorney has offered plausible explanations for why her actions are not violations. Both sides will get a chance to make their case and prove the legitimacy of their claims.

“Our organization does not believe there should be any rush to judgment before this deliberative, fact-based process has fully unfolded.”

Following last week’s indictment, Democratic House and Senate leadership called on Ms. McGuiness to take a leave of absence, as the case against her proceeds.