Could crime-fraud exception to confidentiality rule thwart efforts to disrupt Mike Hubbard probe?

Mike Hubbard mailer from the 2014 campaign

During the 2014 election, Alabama House Speaker Mike Hubbard (R-Auburn) touted his Christian faith as a reason voters should re-elect him, even though he faced a 23-count indictment for alleged felony violations of state ethics laws. One pro-Hubbard mailer featured a photo of the Holy Bible with a compass--and a tag line that states: "Faith Is His True North."

Was that a reference to Mike Hubbard or to Jesus Christ himself? Sometimes, in right-wing Alabama politics, it's hard to tell where the candidate ends and the deity begins.

This much seems clear: The behavior of Hubbard, and various lawyers connected to him in the Lee County grand-jury investigation, is anything but Christ-like. In fact, it might be enough to test the gag reflex for any person of genuine faith.

What is most gag-inducing at the moment? Well, there is a close race for that "honor," but our vote goes to an apparently coordinated effort by various lawyers to use attorney-client privilege for purposes of gaining inside information about the criminal probe. Our research indicates the "crime-fraud exception" might help pierce the attorney-client privilege and produce additional damaging information against Hubbard--and perhaps some of the lawyers who appear determined to disrupt the grand jury's work.

Two members of Attorney General Luther Strange's office--Sonny Reagan and Gene Sisson--have been forced out amid allegations that they leaked grand-jury information to pro-Hubbard forces. Bill Britt, of Alabama Political Reporter, wrote in late April that Birmingham lawyers Rob Riley and Bill Baxley likely were among those participating in the Reagan/Sisson schemes.

How does the attorney-client privilege scheme work? Here is how we described it last December:

Britt reports that Rob Riley and others are taking extraordinary steps to undermine the investigation. At the heart of the scheme is a game of legal musical chairs, with Rob Riley and Bill Baxley representing multiple clients in an apparent effort to use attorney-client privilege as a way to get inside information.

The idea seems to be that Riley and Baxley can use their status as lawyers for multiple clients in the case to obtain inside information--and the attorney-client privilege will provide a shield to help them get away with it. The inside information, it apparently is hoped, will help their clients avoid criminal convictions--and maybe avoid prosecution altogether.

Attorney-client privilege, however, is not absolute--and a provision known as the crime-fraud exception might throw a wrench into the plans involving Riley and Baxley. What is the crime-fraud privilege? It is described in Rule 502 of the Alabama Rules of Evidence. Section (d)(1) of the rule states:

(d) Exceptions. There is no privilege under this rule:

(1) FURTHERANCE OF CRIME OR FRAUD. If the services of the attorney were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;

How might this play out? Well, we know that Special Prosecutor Matt Hart already has subpoenaed Rob Riley to testify before the grand jury, and Riley lawyer William Athanas has fought it. (See Athanas letter to Hart at Exhibit J from the following link.)

Athanas, from the Birmingham firm Waller Lansden Dortch and Davis, cites Rules 1.6 of the Alabama Rules of Professional Conduct as primary grounds for his position that Riley should not be called to testify. But Rule 1.6 appears to be in line with the crime-fraud exception, including the following language (citations omitted):

First, the lawyer may not counsel or assist a client in conduct that is criminal or fraudulent. See Rule 1.2(d). Similarly, a lawyer has a duty under Rule 3.3(a)(3) not to use false evidence. This duty is essentially a special instance of the duty prescribed in Rule 1.2(d) to avoid assisting a client in criminal or fraudulent conduct. . . .

If the lawyer's services will be used by the client in materially furthering a course of criminal or fraudulent conduct, the lawyer must withdraw . . . 

E-mail evidence in the case indicates Rob Riley was among those who received leaked grand-jury information from Sonny Reagan. That points to likely obstruction, which would trigger the crime-fraud exception and require Rob Riley's testimony. Similar circumstances also could require Bill Baxley's testimony.

Curiously, Athanas points to advice from Tony McLain, general counsel for the Alabama State Bar, to buttress his argument that Riley should not be forced to testify. That raises at least two questions:

(1) Is the Alabama State Bar trying to protect Rob Riley, perhaps due to his status as the son of former Governor Bob Riley?

(2) Is Tony McLain familiar with the very rules he is supposed to uphold?

The bottom line? Mike Hubbard might use The Bible in an effort to maintain his seat of power, but when you examine his actions and the actions of those connected to him . . . well, it's hard to see anything holy about that.