Atlanta lawyer Ken Hodges’ letter asking for the reimbursement of state Sen. Don Balfour’s legal fees and expenses provided these details as to how Balfour ran up a $156,787 tab for his defense:
- During the initial phases of the investigation, Balfour retained Pat McDonough of the Duluth law firm Andersen Tate & Carr to represent him. That firm billed $52,484 for its legal services.
- Recent law school graduate Joshua Ehrich billed Balfour $7,210 to conduct research and work with evidence and witnesses.
- Once the formal charges were brought, Balfour hired Hodges and his law partner, William Hill, for a flat fee of $75,000 plus expenses, which wound up totaling $7,093. After the trial, Balfour agreed to pay Hodges and Hill an additional $15,000 to handle the reimbursement of legal fees request, Open Records Act issues and record expungement issued that needed to be addressed.
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Georgia’s attorney general should disqualify himself from deciding whether state Sen. Don Balfour should recoup $156,787 he spent defending himself against charges he filed false expense reports, some of the nation’s top experts on legal ethics say.
State officials acquitted of a crime can try to recover legal fees, and the attorney general has the responsibility of determining whether such a request is reasonable. In this case, however, Attorney General Sam Olens’ office brought the charges against Balfour. Olens then decried the verdict. Also, Balfour’s lead defense lawyer, Ken Hodges, unsuccessfully ran against Olens in the 2010 race for attorney general.
Experts say the legal fee reimbursement issue is fraught with so many conflicts Olens should recuse himself from the issue and let the governor appoint someone else to decide the reasonableness of Balfour’s legal fees.
“He has a clear conflict of interest and would be forbidden from doing this under the rules of lawyer ethics,” said Hofstra University law professor Monroe Freedman, who has authored of a number of books on legal ethics. “As a lawyer, he is bound by that and he must disqualify himself. It’s clearly wrong.”
On Thursday, Olens’ spokeswoman said it was “premature” to comment on Balfour’s reimbursement request. Earlier this week, when asked if Olens was going to recuse himself, his spokeswoman emailed the section of the state law that designates the attorney general as the decision-maker.
In one of Olen’s highest profile criminal prosecutions, a Fulton County jury took less than three hours in December to find Balfour, R-Snellville, not guilty on 18 felony counts that he tried to steal money from the state.
Following state rules, Hodges submitted Balfour’s bill on Monday to the state Department of Administrative Services. It’s the first time Hodges has tallied the numbers, which spanned two separate legal firms, countless aides and the work of a recent law school graduate.
The department must forward the bill along with any supporting documentation to Olens’ office.
Penny White, a former Tennessee Supreme Court justice, said Olens should have nothing to do with it.
“It seems so self-evident,” said White, a University of Tennessee law professor. “It’s so obviously a conflict of interest that a neutral authority should be appointed to consider it. It seems like, for no other reason, to give integrity to the decision he must follow that course. I don’t see how this can be a fair tribunal otherwise.”
Once one of the most powerful politicians in Georgia, Balfour faced charges related to expense reports he filed with the General Assembly over a five-year period ending in 2011. The former chairman of the Senate Rules Committee was accused of intentionally taking reimbursement for expenses to which he was not entitled — charges that could have brought him up to 10 years in prison and thousands of dollars in fines.
From the start of the three-day trial, however, the state’s prosecution struggled to show Balfour intentionally inserted errors into expense reports and mileage claims paid to him by the state. Almost immediately, starting with the state’s first witness, the defense took hold of the trial’s narrative and turned it into one involving a nosy government’s obsession with the mistakes of an honest, overworked man. Balfour had always admitted the reports had errors, but said it was unintentional.
In his request filed Monday, Balfour turned to a Georgia law that allows state officials and employees to seek reimbursement of legal fees and expenses they incurred “in the successful defense of a charge arising out of the performance of his or her official duties.” Under this statute, the attorney general is assigned the task of deciding whether such a request is reasonable.
During the trial, Hodges roundly criticized Olens for bringing the case against Balfour.
On Thursday, he said Olens should step aside. Hodges said he would be satisfied if the decision was left up to the judge who oversaw the case, Fulton County Superior Court Judge Henry Newkirk.
“Judges decide reasonableness of fees all the time,” Hodges said.
Prominent Atlanta criminal defense attorney Don Samuel, who was not involved in the Balfour case, said Olens should disqualify himself.
“A decision like this has to be made by an impartial decision-maker,” Samuel said. “It doesn’t seem like a close call.”
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