A federal judge in Santa Ana Tuesday denied a request to appoint a public defender to assist attorney Michael Avenatti in his Orange County criminal case, but he’ll likely have another chance Wednesday to argue his request.
The Public Defender’s Office filed the request on behalf of Avenatti, requesting to have Cuauhtemoc Ortega and Georgina Wakefield appointed to represent the attorney, who came to national prominence in a legal tussle with President Donald Trump over a nondisclosure agreement with porn actress Stormy Daniels.
The Public Defender’s Office argued that Avenatti is willing to pay whatever the court decides he should owe for his defense against embezzlement and bank fraud charges, but wants to do so after the case is final. Avenatti’s financial situation is up in the air, the attorneys argued in the filing, because he faces two criminal cases and his continued work on pending civil matters is uncertain.
Public defenders are usually appointed for defendants who are indigent and cannot afford a lawyer. But they can be appointed to more well-off defendants if the cost of defending the case exceeds living expenses, according to the Public Defender’s filing, which says Avenatti “submits that he falls into the latter category of eligibility and requests an opportunity to contribute to his representation.”
The Public Defender also asked that U.S. District Judge James Selna not require Avenatti to fill out a form at this time that would detail his finances.
“Providing a complete picture of Mr. Avenatti’s finances at this stage of the proceeding would be a demanding and time-intensive effort,” the motion reads. “Mr. Avenatti is involved in several lawsuits requiring ongoing expense and financial responsibility.”
In addition to criminal charges he faces in New York regarding allegations of extorting the shoe company Nike, Avenatti is “a party to several civil lawsuits — both personally and professionally — at various stages of the proceedings, including on appeal,” according to the motion.
“He has continuing obligations to counsel on those cases and is uncertain as to the ongoing costs and expenses associated with that litigation,” the motion states. “It would be difficult, if not impossible, to fully capture the ongoing liabilities and potential financial assets at stake in these other proceedings at any given moment…. Mr. Avenatti is in the difficult position of facing criminal charges and needing counsel on both coasts at the same time.”
Avenatti is facing a case in California that is “complex and will require significant resources,” the Public Defender argued.
“Mr. Avenatti has tried to secure private counsel over the course of the past month but has been unsuccessful due in large part to the government’s forfeiture counts,” according to the Public Defender’s motion, which says Avenatti also fears that federal prosecutors in New York and California will use “his statements against him” in both cases.
Avenatti “agrees that he should contribute to his representation but requests that the court defer determination of the exact amount of contribution until the end of the case,” the motion says. “By that time he will have greater certainty regarding the status of his New York case and representation.”
Selna denied the request without comment, but is scheduled to preside over a hearing Wednesday morning to further discuss Avenatti’s legal representation.
Last week, Selna gave Avenatti until this Wednesday to either find a new attorney to represent him, file a request for a public defender or represent himself legally.
After last week’s hearing, Avenatti told reporters that he expected to hire new attorneys and added, “I’m very fortunate in that I’ve had a lot of attorneys from around the country who have offered to represent me both here and in New York, which I have been flattered by.”
Federal prosecutors last week asked Selna to appoint a lawyer for Avenatti after he signaled he would change legal representation at his arraignment on the Orange County charges.
Prosecutors want Selna to order Avenatti to fill out a financial affidavit and for the judge to immediately appoint an attorney for the defendant and, if he can afford it, pay some of his legal bills.
The prosecutors argued that “there is a strong public interest in ensuring that this case proceed to trial as soon as possible. The indictment alleges that the victims of the wire fraud counts in this case have lost millions of dollars as a result of defendant’s fraudulent conduct… Indeed, one of defendant’s alleged victims… had been dependent on defendant for basic living expenses for the last four years and recently lost his Supplemental Security Insurance benefits as a result of defendant’s conduct.”
Avenatti is also facing efforts by his former law partners to collect on a $10 million court-ordered payment to them.
Avenatti previously had been represented by the Bienert Katzman law firm, which has not responded to requests for comment.
Prosecutors are skeptical Avenatti needs free legal representation, writing in their filing that he “appears to have the financial wherewithal to retain counsel” and “is currently represented by retained counsel in other litigation matters.” Prosecutors also argued that “as recently as April 2019 defendant was renting a luxury condominium for approximately $11,000 per month.”
The prosecutors said Avenatti in March filed a bankruptcy petition on behalf of his law firm, which they allege was done to delay a hearing. Avenatti did not have the authority to file for bankruptcy — in February, a receiver was placed in control of his firm’s business affairs — so a federal bankruptcy judge dismissed the filing, the prosecutors said.
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