Are Birmingham law firms -- especially Maynard Cooper Gale -- angling to tackle Mike Hubbard's appeal on convictions related to Alabama ethics law?

Mike Hubbard

Of the many questions raised by the conviction of former Alabama House Speaker Mike Hubbard on ethics-law violations, this might be one of the most interesting: Who will handle Hubbard's appeal? (A related question: Will the matter go to the Alabama Court of Criminal Appeals or directly to the Alabama Supreme Court?)

The obvious answer to the primary question is Bill Baxley and his Birmingham-based law firm. After all, they represented Hubbard at trial and should be well acquainted with issues that might be raised on appeal. The Baxley firm, however, produced a poor result for Hubbard the first time around. According to one report, court insiders rated defense attorney Lance Bell's closing as the "most bizarre and amateurish" they had ever witnessed.

I can think of at least two other Birmingham firms who might want in on the Hubbard appellate action -- one is Bradley Arant and the other is Maynard Cooper Gale. In fact, one of those firms already has produced written material that indicates it's ready to jump into the game.

Bradley Arant might be a fairly obvious choice for Hubbard. It's a right-wing, pro-business firm with longstanding ties to former governor Bob Riley and his Riley Inc. political machine, of which Hubbard is a prominent member. Kevin C. Newsom, chair of the firm's appellate group, reportedly has an exceptionally close relationship with U.S. District Judge William Pryor. It was Pryor, of course, who largely ushered in the Riley governorship by refusing to allow a recount after votes for Democratic incumbent Don Siegelman had disappeared overnight in heavily Republican Baldwin County.

Kevin C. Newsom
(From bradley.com)

As for Maynard Cooper Gale (MCG) the firm already has produced a blog post titled "The Hubbard Verdict: Some Initial Thoughts on What Businesses Need to Know." What is the purpose of the blog post? The headline suggests it is designed to counsel MCG's business clients (and potential business clients) about possible lessons from the Hubbard verdict -- and that might be the post's one and only purpose.

But it also has a tone of, "We think the jury got it wrong, and here are key points we could use to get the verdict overturned and ensure Mike Hubbard's freedom." In fact, the post highlights five points, with brief explanations, that could form the foundation of Hubbard's appeal. Here they are:

(1) The prosecution and jury broadly interpreted the term "principal"

"In the Hubbard matter, two of the counts on which the Speaker was convicted (Counts 16 and 23) involved the receipt of a “thing of value” from an individual described in the indictment as a board member of a trade association. According to the prosecution, therefore, a board member of an association that employs lobbyists is a principal, and is therefore prohibited from providing a thing of value to a public official. Given the conviction on these counts, the jury seems to have agreed with this interpretation. If the verdict stands, the meaning of principal would apparently be much broader than many believed prior to the Hubbard trial and places many businesses and associations at unknown risk if they employ lobbyists."

(2) The prosecution and jury interpreted the phrase "thing of value" broadly, and included intangible items such as advice and introductions.

"In the Hubbard matter, Count 23 alleged that a board member of a trade association provided “assistance with obtaining new clients . . . and/or financial advice” to the Speaker. Essentially, the charge alleged that the board member assisted the Speaker with an analysis of the Speaker’s business, and advice as to how to revive that business. Further, the Count alleged that the board member helped find possible investors in the Speaker’s company and may have provided introductions to those potential investors. The “thing of value” provided in Count 23 was therefore intangible, and not a gift, a sum of money, a trip, or a junket. Instead, it was something that—at least arguably—had no resale or intrinsic value. From the perspective of interaction with public officials and public employees, this creates the risk that non-monetary assistance such as advice will be considered a “thing of value.” If it is provided by a principal or lobbyist, it may create criminal liability.

(3) Though a “friendship” exception exists in the Act, the jury did not always accept the defense’s arguments based on it.

Throughout the Hubbard trial, the defense elicited testimony from those alleged to have provided things of value to the Speaker that they were friends with the Speaker, and that this friendship was what had motivated them, rather than the Speaker’s role in Alabama government. The jury appears to have accepted that defense in certain instances, as it acquitted the Speaker on numerous counts involving the receipt of advice or assistance from some people. However, the jury rejected the defense on other counts, particularly on that [involving] a person who had known and considered the Speaker a friend for 14 years before Speaker Hubbard ever ran for office.

A fairly strong argument could—and likely will—be made on appeal that the standard set forth in the statute may be too vague to impose criminal liability.

(4) The definition of a legislative "conflict of interest" is broader than the language of the Act itself.

Drayton Nabers
(From maynardcooper.com)

"In Count 5 of the indictment, Speaker Hubbard was charged with having acted under a conflict of interest when he voted for a General Fund budget that included language that would have benefited a business for which he was acting as a consultant. Section 36-25-5(b) of the Act prohibits a legislator from taking action on a measure when he knows or should have known that he has a “conflict of interest”. A conflict for a legislator is defined in Section 36-25-5(f), which states that conflict of interest exists when a legislator “has a substantial financial interest by reason of ownership of, control of, or the exercise of power over any interest greater than five percent of the value of any . . . business entity of any kind”. This conflict language was adopted by the Legislature following an Alabama Supreme Court case which held the same, and has been in place since the 1990s. However, it is undisputed that Speaker Hubbard did not have a “substantial financial interest” in the company at issue as defined under section 5(f). Instead, he simply had a contract with that company, under which he was paid a monthly fee. In other words, he was not even an employee. Despite these facts, the jury returned a guilty verdict on this count."

(5) Written consultation with the Ethics Commission is more important than ever.

Speaker Hubbard was acquitted on several counts for activity about which he had specifically met with the Ethics Commission’s staff and had received a letter indicating he was permitted to undertake. In contrast, the Speaker was convicted for conducting very similar activity for other entities in situations that he did not have written pre-clearance. It appears that the different verdicts on these similar counts may have been based [on] the existence of the letter authorizing the Speaker’s employment and activities.

What does this sound like to you? To me, it sounds like the lawyers of Maynard Cooper Gale believe Hubbard has some substantial issues to raise on appeal--and they are just the lawyers to do it.

Will that prove to be true? It's too early to tell, but Drayton Nabers, former chief justice of the Alabama Supreme Court, is "of counsel" at MCG. Who appointed Nabers as chief justice? Why, it was none other than then Governor Bob Riley, who had to fill the vacancy in 2003 when Roy Moore was removed from office for his insistence on keeping a Ten Commandments monument in the courthouse. Nabers served for three years, until Democrat Sue Bell Cobb beat him in a major 2006 upset.

Nabers clearly is a member of Riley Inc., and if Hubbard still is making the mistake of taking advice from the Riley clan, Nabers' law firm could wind up at the heart of Hubbard's appeal.