Dentons lawyers in Atlanta asked a federal judge to reconsider disqualifying them from representing a former attorney in a fraud case, arguing he cannot assist new defense counsel because he suffers from dementia.

But federal prosecutors have countered that a court-ordered psychological examination this past summer of Dentons client Bennett Kight does not support the dementia claims, which prosecutors said surfaced after they sought to disqualify Kight's longtime lawyer and Dentons partner, Barry Armstrong.

Kight is the former managing partner at Sutherland, Asbill & Brennan. The firm is now Eversheds Sutherland.

In an Oct. 16 order, U.S. District Judge William Duffey Jr. disqualified Armstrong and the firm from continuing to defend Kight in the criminal case after federal prosecutors accused Armstrong of having “divided loyalties.”

Armstrong had jointly represented Kight and Atlanta accountant William Lankford in ongoing civil fraud suits in Fulton County associated with their work for the Bunzl trusts. Lankford, who eventually switched lawyers, is a federal witness in the criminal case against Kight and his been given immunity in return for his cooperation. Lankford has refused to waive his attorney-client privilege regarding his communications with Armstrong.

Until he was disqualified, Armstrong was defending Kight against multiple charges of mail fraud stemming from allegations Kight stole more than $2 million from the Bunzl trusts while he was trustee. The federal charges derived from the ongoing civil litigation filed by Bunzl beneficiaries who claim Kight stole more than $60 million from the trusts.

The trusts were established for the heirs of the late industrialist and philanthropist Walter Bunzl. The Sutherland firm first began representing Bunzl and his companies during the 1940s after he and his family fled Austria before World War II, according to court documents.

Two days after Duffey disqualified Armstrong and the firm, Dentons partners Randy Evans and Shari Klevens filed notices of appearance to replace Armstrong. On Oct. 27, they asked Duffey to reconsider his ruling. Evans–chairman of the Republican National Lawyers Association–was nominated by the White House in September as U.S. ambassador to Luxembourg.

Evans and Klevens didn't immediately respond to a request for comment.

In their motion, Evans and Klevens contend “the record confirms” Kight “is no longer able to assist in defending his own case” and that removing his Dentons lawyers deprives him of counsel “who can most capably defend him against criminal charges.” They contend that violates Kight's constitutional right to counsel.

Calling the ruling “a case of first impression,” the two Dentons lawyers said they have found no other case where a judge disqualified attorneys “representing a defendant afflicted with dementia or Alzheimer's whose mental capacity was diminishing daily.”

Evans and Klevens also contend the government likely won't call on Lankford to testify. They have asked federal prosecutors to confirm “on the record and before the court that they, in fact, plan to call Lankford as their witness.”

The Dentons lawyers also suggested any information Lankford may have shared with Armstrong are “purely speculative confidences.” They said “virtually all of the information” discussed during meetings Armstrong had with Kight and Lankford “is now publicly known, and therefore, not confidential” via the ongoing civil suits.

They also insisted Armstong's representation of Kight and Lankford is not a conflict because Lankford's testimony will help Kight. They said they intend to call Lankford as a defense witness.

Prosecutors have not yet responded to the motion to reconsider.

But in court pleadings filed in early October, prosecutors contended that Daniel Marson, a clinical psychologist who conducted the court-ordered competency examination this past summer, was concerned Kight's alleged memory issues “were driven by legal, not clinical, concerns.”

Prosecutors also suggested tests Kight underwent indicated he may have been “malingering” and that his “severely poor memory testing scores were markedly inconsistent with [Kight's] ability to recall and discuss recent events and other matters during his clinical interviews, including both 40-year-old court cases and 4-day-old doctor visits.”

That report remains under seal at the request of Kight's lawyers. The government has asked that the report be unsealed, arguing that to “maintain the seal aids [Kight's] efforts to publicly mis-portray Dr. Marson's work.”

Dentons

Dentons lawyers in Atlanta asked a federal judge to reconsider disqualifying them from representing a former attorney in a fraud case, arguing he cannot assist new defense counsel because he suffers from dementia.

But federal prosecutors have countered that a court-ordered psychological examination this past summer of Dentons client Bennett Kight does not support the dementia claims, which prosecutors said surfaced after they sought to disqualify Kight's longtime lawyer and Dentons partner, Barry Armstrong.

Kight is the former managing partner at Sutherland, Asbill & Brennan. The firm is now Eversheds Sutherland.

In an Oct. 16 order, U.S. District Judge William Duffey Jr. disqualified Armstrong and the firm from continuing to defend Kight in the criminal case after federal prosecutors accused Armstrong of having “divided loyalties.”

Armstrong had jointly represented Kight and Atlanta accountant William Lankford in ongoing civil fraud suits in Fulton County associated with their work for the Bunzl trusts. Lankford, who eventually switched lawyers, is a federal witness in the criminal case against Kight and his been given immunity in return for his cooperation. Lankford has refused to waive his attorney-client privilege regarding his communications with Armstrong.

Until he was disqualified, Armstrong was defending Kight against multiple charges of mail fraud stemming from allegations Kight stole more than $2 million from the Bunzl trusts while he was trustee. The federal charges derived from the ongoing civil litigation filed by Bunzl beneficiaries who claim Kight stole more than $60 million from the trusts.

The trusts were established for the heirs of the late industrialist and philanthropist Walter Bunzl. The Sutherland firm first began representing Bunzl and his companies during the 1940s after he and his family fled Austria before World War II, according to court documents.

Two days after Duffey disqualified Armstrong and the firm, Dentons partners Randy Evans and Shari Klevens filed notices of appearance to replace Armstrong. On Oct. 27, they asked Duffey to reconsider his ruling. Evans–chairman of the Republican National Lawyers Association–was nominated by the White House in September as U.S. ambassador to Luxembourg.

Evans and Klevens didn't immediately respond to a request for comment.

In their motion, Evans and Klevens contend “the record confirms” Kight “is no longer able to assist in defending his own case” and that removing his Dentons lawyers deprives him of counsel “who can most capably defend him against criminal charges.” They contend that violates Kight's constitutional right to counsel.

Calling the ruling “a case of first impression,” the two Dentons lawyers said they have found no other case where a judge disqualified attorneys “representing a defendant afflicted with dementia or Alzheimer's whose mental capacity was diminishing daily.”

Evans and Klevens also contend the government likely won't call on Lankford to testify. They have asked federal prosecutors to confirm “on the record and before the court that they, in fact, plan to call Lankford as their witness.”

The Dentons lawyers also suggested any information Lankford may have shared with Armstrong are “purely speculative confidences.” They said “virtually all of the information” discussed during meetings Armstrong had with Kight and Lankford “is now publicly known, and therefore, not confidential” via the ongoing civil suits.

They also insisted Armstong's representation of Kight and Lankford is not a conflict because Lankford's testimony will help Kight. They said they intend to call Lankford as a defense witness.

Prosecutors have not yet responded to the motion to reconsider.

But in court pleadings filed in early October, prosecutors contended that Daniel Marson, a clinical psychologist who conducted the court-ordered competency examination this past summer, was concerned Kight's alleged memory issues “were driven by legal, not clinical, concerns.”

Prosecutors also suggested tests Kight underwent indicated he may have been “malingering” and that his “severely poor memory testing scores were markedly inconsistent with [Kight's] ability to recall and discuss recent events and other matters during his clinical interviews, including both 40-year-old court cases and 4-day-old doctor visits.”

That report remains under seal at the request of Kight's lawyers. The government has asked that the report be unsealed, arguing that to “maintain the seal aids [Kight's] efforts to publicly mis-portray Dr. Marson's work.”