Robert Kelner Robert Kelner walks into court with Michael Flynn in Washington DC. (Photo: Diego M. Radzinschi / ALM)

The former defense lawyers for Michael Flynn at Covington & Burling on Monday defended their effort to transfer case files to the new attorneys representing the indicted former Trump national security adviser and denied clinging to client documents on the condition that an outstanding legal tab be paid.

Flynn terminated his Covington lawyers in June, hiring a new team of defense attorneys that include a conservative critic of Robert Mueller's special counsel prosecutors. Earlier this month, Flynn's new lawyers told Judge Emmet Sullivan of the U.S. District Court for the District of Columbia that the Covington team “has advised it will be several weeks before all of the information can be transferred.”

Sullivan quickly issued an order setting an Aug. 27 hearing at which he planned to confront any ethics issues tied to the transfer of files from Covington to Flynn's new lawyers. Sullivan was responding to an assertion from Flynn's new attorneys that they had not yet received the full case file, and that it would be “several weeks before all of the information can be transferred.”

Sullivan's court order said local D.C. attorney-conduct rules restrict how and when a lawyer can impose a lien on a former client's files. Sullivan said he intended to invite a senior ethics counsel from the D.C. bar “to attend the status conference and explain on the record the applicable District of Columbia Rules of Professional Conduct.” Sullivan set the hearing on his own, not because he had been asked by either side.

Flynn's primary former Covington lawyers—Robert Kelner and Stephen Anthony—said in Monday's court filing: “Undersigned counsel take very seriously the obligation to protect the interests of a client in connection with any termination of a representation.” They detailed the steps the firm has taken to hand over the Flynn file to their former client's new defense team, which includes former federal prosecutor Sidney Powell and attorneys from the litigation boutique Harvey & Binnall in Alexandria, Virginia.

The file transfer, Kelner and Anthony said Monday, is now complete. They said they're further prepared to give Sullivan a report “regarding the circumstances of the file transfer and the steps undertaken to complete that process.”

Kelner and Anthony said the transfer process included “Covington's meeting and speaking with new counsel to provide extensive briefings on the background and status of the matter.” The two attorneys added: “The firm never, in any way whatsoever, conditioned the transfer of files to General Flynn's new counsel on payment of outstanding fees.”

Powell, in an email Monday, said the “time it took Covington to turn over all the files had nothing to do with its bills or fees to my knowledge.”

The firm declined to comment Monday.

“Since the end of its representation of General Flynn six weeks ago, a team now consisting of 24 Covington lawyers has been collecting and transferring hundreds of thousands of documents to General Flynn's new counsel,” Covington said in a statement earlier this month, according to Politico. “Covington has communicated extensively with his new counsel and prioritized the collection and transfer of files as directed by new counsel.”

Flynn pleaded guilty in December 2017 to lying to federal investigations about his interaction with the Russian ambassador to the United States. Prosecutors last year, at the time Flynn was preparing to be sentenced, backed the former Army lieutenant general's request for leniency and did not recommend a prison term. Flynn's hiring of new lawyers has added some uncertainty to the next steps.

Politico reported on July 18 that Flynn had an outstanding legal tab of $4.6 million, though it was not clear how much Flynn had already paid. “Some of our bills are unpaid,” Kelner said in testimony in Virginia federal court, where a former Flynn business associate was found guilty of conspiring to act as an undisclosed agent of Turkey.

Kelner, the head of Covington's political and election law practice, reportedly testified that his hourly rate at the time of the Flynn engagement was $960, but that he now bills at $1,160. Flynn's new defense lawyers said earlier this month in a court filing that “he has incurred hundreds of thousands of dollars of legal fees attributable solely to his cooperation with the government.”

 

Covington's new filing is posted in full below:

 

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