Photo: Jason Doiy/ALM

A former sales executive at Insys Therapeutics who is seeking a new trial after a racketeering conviction has cited new evidence that he said shows his ex-lawyers at Weil, Gotshal & Manges kept him in the dark about potential conflicts posed by its simultaneous bankruptcy work for Insys.

Richard Simon was one of five defendants convicted for pushing doctors to prescribe Subsys, a super-potent and addictive painkiller. In his bid for a new trial in Boston federal court, he has argued that Weil could not represent him while working for Insys because the pharmaceutical company's bankruptcy plans were inextricably linked to its cooperation with prosecutors, who were seeking a huge fine from the company.

"Insys was actively assisting in the prosecution of Mr. Simon," his new lawyers at Boston-based Fick & Marx argued in a brief filed last week, in which they incorporate emails and notes from Weil attorneys.

"Weil could not be loyal to both clients. Mr. Simon never provided his informed, written consent to this arrangement. Worse, when he asked his trial counsel, Weil partner Steven Tyrrell, what the Insys engagement would mean for him, Tyrrell responded, 'nothing, really,'" said Simon's defense attorneys Daniel Marx and William Fick.

But Weil denies that there was any conflict, said it took steps to avert the possibility of one and said Simon was fully informed about its work for Insys. Tyrrell said in an affidavit filed Sept. 16 that he told Simon about the pending bankruptcy representation in August 2018, and "Simon stated he understood my explanation, had no questions, and voiced no objection."

Tyrrell also said Weil implemented an ethical screen "to avoid any appearance of impropriety," according to a Weil memo filed in court. He said his firm circulated memos to the team working on Simon's defense and on the Insys bankruptcy that instructed them not to have any discussions or share or access any files concerning each others' matters.

In another point of contention, Simon said Insys cooperated with prosecutors and refused to waive privilege on an investigation conducted by Skadden, Arps, Slate, Meagher & Flom that could have given him the ability to impeach Insys witnesses who implicated him in wrongdoing. But in his affidavit, Tyrrell said he subpoenaed Insys during the trial and tried in good faith to make the case to jurors that Simon had sought to comply with the law in his effort to increase sales.

"Simon assumes that Insys possessed privileged, exculpatory information demonstrating that he acted in good faith," Tyrrell wrote. "During trial, however, the government repeatedly represented that it had received inculpatory information from Insys."

U.S. District Judge Allison Burroughs of the District of Massachusetts has yet to rule on the new trial motions filed by Simon and his codefendants.

Marx, Simon's lawyer, and a Weil representative didn't immediately respond to requests for comment. In a previous statement, the firm has made similar points to those Tyrrell made in his affidavit.

The criminal case against Simon and other Insys executives, including CEO John Kapoor, has been closely watched. Prosecutors accused the defendants of pushing off-label uses of Subsys, which was approved to treat intense so-called breakthrough cancer pain in a way that was no different than drug dealers on street corners. They said the convictions they secured struck a blow against the opioid epidemic that has ravaged much of the U.S.

Simon's attacks on his former lawyers aren't the only case where Weil lawyers have recently drawn headlines.

Just in the last month, the New York Post reported that the firm made mistakes with the compensation of two former bankers at its client Perella Weinberg Partners that could result in a multimillion-dollar liability for the client. The Post reported that Weil recently stepped aside from its representation of the financial firm after the error was revealed. A Weil representative did not immediately return a message seeking comment on that matter.