Attorneys Timothy McAfee, Charles Thomas Brown, and Eric Broch Lawson all represented or continued to represent others with regard to either the government's criminal investigation or the related civil action. Mr. McAfee represented Southwest Virginia Insurance, the insurance agency that sold Harleysville's fire insurance policy, when one of its agents was subpoenaed to appear and produce evidence before the grand jury investigating the fire. He also represented the agency in a deposition of one of its agents taken in the civil action.

Mr. McAfee represented that, if permitted to represent Mr. Riebe in the criminal case, he would not participate in the examination or cross-examination of any representative or employee of Southwest Insurance Agency who might be called to testify at trial. He further represented that he knew of no dispute in the facts concerning the acquisition of the fire loss insurance coverage or the amount of coverage held on the funeral home at the time of the fire loss.

Messrs. Brown and Lawson represented Golden Rule and the other defendants in the civil action based on a contingency fee arrangement. They acknowledged that, pursuant to the contingency fee arrangement, they would not get paid for their work in the civil action should Mr. Riebe enter a guilty plea in the criminal case.

Messrs. Brown and Lawson also represented Goodman, Gable, Gould Adjustors/International in other unrelated matters. The government asserted that this business assisted in filing the fire loss claim at issue and that representatives of this business likely would be called to testify at trial.

Messrs. Brown and Lawson also filed a document in which Marvin B. Wilson, Jr., on behalf of the three defendants in the civil action, waived any conflict created by counsel's representation of Mr. Riebe in the criminal case.

Mr. Riebe appeared in court with retained counsel Richard Kennedy, who represented that he has had no role in the criminal investigation on behalf of any other person or entity other than Mr. Riebe and that he did not represent any party with regard to the civil action. After being placed under oath, Mr. Riebe stated that he had discussed the potential conflicts with Mr. Kennedy and that he understood the potential conflicts posed by Messrs. McAfee, Brown, and Lawson representing him. Nonetheless, he stated that he was requesting that each of these attorneys be allowed to represent him. He further stated that he understood that, should the court allow any of these attorneys to represent him, one or more of these counsel might have to withdraw or be removed from further representing him should a true conflict arise.

The Employment Agreements

Mr. McAfee's written employment agreement with Mr. Riebe stated in part:

The Firm and Client have discussed the possible conflict that exists because the Firm represented Southwest Virginia Insurance on matters related to the fire loss, Client has been fully informed of the nature of the possible conflict, and having been fully informed as to the nature of the conflict, Client waives any possible conflict, and desires to engage the services of the Firm notwithstanding the possible conflict.

The employment agreement among Messrs. Brown and Lawson and Mr. Riebe stated:

The scope of the representation shall not extend to offering advise [sic] or counsel regarding potential plea bargains….

… The Firm and Client have discussed the possible conflict that exists because the Firm represented Holding Funeral Home, Inc., Golden Rule Family Management, LLC, and L.J. Horton Florist, Inc. on matters related to the fire loss. Client is also aware that the Firm has represented Goodman, Gable, Gould, Adjusters/International in other, unrelated matters. Client has been fully informed of the nature of the possible conflict, and having been fully informed as to the nature of the conflict, Client waives any possible conflict, and desires to engage the services of the Firm notwithstanding the possible conflict. Client acknowledges that he has sought and obtained independent legal advice prior to waiving any possible conflict of interest and actual conflict of interest.

The Court's Decision

The court ruled that Mr. McAfee had no conflict but that Messrs. Brown and Lawson had unwaivable conflicts and could not represent Mr. Riebe.

In its decision, the court explained that although the Sixth Amendment right to counsel in a criminal case included the right to be represented by an attorney of the defendant's own choosing, that right was not absolute.

The court then noted that Messrs. McAfee, Brown, and Lawson all wanted to enter a general appearance on behalf of Mr. Riebe in his criminal case. The court added that the only limitation offered with respect to Mr. McAfee's representation was that he would not participate in the examination or cross-examination at trial of any representative of Southwest Insurance. It also noted that Messrs. Brown and Lawson had offered no limitation on their roles at trial but had agreed to limit their roles only insofar as they would not advise Mr. Riebe regarding whether he should enter a plea or defend the charges at trial.

The court then ruled that there was no conflict that prevented Mr. McAfee from representing Mr. Riebe. The court said that it based this conclusion in large part on the representation by Mr. McAfee that he knew of no dispute in the facts concerning the acquisition of the fire loss insurance coverage or the amount of coverage held on the funeral home through Southwest Insurance at the time of the fire loss. The court added, however, that if Mr. McAfee's former representation of Southwest Insurance ever posed a conflict of interest with his continued effective representation of Mr. Riebe, Mr. McAfee had to move to withdraw from further representation of Mr. Riebe or be disqualified.

Then, the court decided, with respect to Messrs. Brown's and Lawson's requests to represent Mr. Riebe in the criminal matter, that their contingency fee arrangement with the defendants in the civil matter presented an “unwaivable conflict of interest” with representing Mr. Riebe on the related criminal charges. The court noted that Virginia's Rules of Professional Responsibility prohibited the charging of a contingency fee by an attorney for representation of a client in a criminal case. It explained that if an attorney were to collect a fee in a criminal case only upon the contingency of the client's acquittal, the attorney's financial interest in defending the charge “would present a conflict in advising the client as to whether entering a guilty plea would be in the client's best interest.” The court then ruled that the “same conflict would exist in this case” were Messrs. Brown and Lawson allowed to enter a general appearance and represent Mr. Riebe at trial.

The court was not persuaded by the argument put forth by Messrs. Riebe, Kennedy, Brown, and Lawson that Messrs. Brown and Lawson were needed to represent Mr. Riebe on the criminal charges because they were familiar with the voluminous documents relating to the fire loss and what these documents may, or may not, prove. Even this limited role, the court ruled, “would pose a conflict for these attorneys.”

Accordingly, the court refused to allow Mr. Riebe to be represented by Messrs. Brown and Lawson in his criminal case.

The case is United States v. Riebe, No. 1:17cr00014 (W.D. Va. Aug. 2, 2017). Attorneys involved include: For Michael Paul Riebe: Richard Dudley Kennedy, LEAD ATTORNEY, Kennedy Law Office P.L.L.C., Wise, VA USA; Timothy Worth McAfee, LEAD ATTORNEY, Timothy W. McAfee, PLLC, Big Stone Gap, VA USA, Charles Thomas Brown, Eric Broch Lawson, Silver & Brown, P.C., Fairfax, VA USA.