Sheriff Keith Nygren, et al’s attorney James Sotos filed motions for sanctions, including dismissal of Zane Seipler’s wrongful termination suit because documents that had been sealed were posted to a blog from his home’s computer.
After Sotos completed his side of the case Tuesday, Seipler attorney Blake Horwitz put attorney John Nelson on the stand.
“I can’t answer any questions unless there is a waiver,” Nelson said in reply to Horwitz’ question about whether he has represented Rose Seipler.
A court filing showed Nelson had represented Zane’s wife Rose in a marital immunity motion.
It turns out she turned to him again when after the sanctions motions (see below) were filed.
The first question was whether Rose would waive her attorney-client privilege. She and her current attorney, Dennis Giovannini.
The privilege was waived and Rose left the courtroom.
Because Nelson’s testimony shows how a veteran defense attorney approaches criminal cases, I shall attempt detailed explanation of the questioning.
Previously, it had been pointed out by Sotos that Horwitz had represented Rose in a deposition. Horwitz didn’t remember being at the deposition and it turns out he was not there in person, but did participation over the phone.
One of the key points that Sotos and his assistant Elizabeth Ekl made was that Horwitz had represented both Mr. and Mrs. Seipler.
Horwitz used Nelson to try to show Judge Frederick Kapala that what the did was proper.
In the deposition, Horwitz advised Rose to assert her Fifth Amendment privilege not to testify.
Nelson thought that appropriate.
During this line of questioning, which targeted the first time Rose went to Nelson, Sotos associate Elizabeth Ekl objected to Nelson’s being considered an “expert” on legal ethical questions.
“He’s a licensed attorney,” Judge Kapala pointed out, overruling the objection. “What more does he need?”
“With regard to [a marital dispute], would it have been appropriate for me to represent Mr. and Mrs. Seipler?” Horwitz then asked.
“No, I don’t believe so,” Nelson replied, “because there’s an inherent conflict of interest.
“You could at your own peril. By engaging in that type of conduct…[it] could result in problems for your client and then result in problems for you.
“It just leads to putting a barrier b3tween you and your client.?
The second call from Rose to Nelson was the next topic.
Horwitz asked if it would have been appropriate for him to represent both spouses in relationship to the blog postings of confidential material on the internet.
“If she said, ‘I have a lawyer,’ I think [Horwitz] would have been on dangerous ground trying to talk to her. [An attorney] can’t talk to a represented client without her attorney’s consent,” Nelson said.
The question of the timing of the second representation came up.
October 26, 2011, was the date Nelson provided.
Previously, Soto has hammered Horwitz for not informing the Court of his suspicion that Rose had posted the documents. He intimated that the two had cooked up the story that she had done it, arguing that the delay in Rose’s obtaining an attorney after the heated mid-August arguments between Zane and his wife was evidence of the falsity of the assertion that Zane had nothing to do with the posting.
At a previous hearing, Zane had pointed out that the family’s financial status was precarious with his not being back on the Sheriff’s Department payroll as Sheriff Nygren strung out his firing loss as long as possible (including a futile appeal to the Illinois Supreme Court).
More questions on conflict problems had Horwitz represented Rose as well as Zane.
“I would [suspect] a cautious, competent and good lawyer wouldn’t have done that,” Nelson opined. “It could place you in an ethical conflict.”
Asked a similar question, Nelson replied, “Absolutely there was a conflict between Ms. Seipler’s and her husband’s interests. It had to do with the potential of litigating the husband’s case effectively and the potential for Mrs. Seipler to have legal difficulties.”
Moving onto the second visit, Horwitz asked if Nelson needed to ask for a waiver.
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