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Foundations Without Representation?

by Miriam Rozen Texas Lawyer

In the days since the FBI secured the premises of the Holy Land Foundation for Relief and Development’s headquarters in Richardson, Texas, the subject of who will represent the nation’s largest Muslim charity has prompted an uncustomary level of consternation and soul-searching among lawyers.

“I’m not gonna do that,” Mark Werbner, a prominent white-collar criminal defense lawyer, says when asked about his name appearing on a short-list of prospective counsel that had been given to HLF leaders. “I guess I’d be open-minded. But I’m a strong supporter of Israel. I’ve visited 15 times. I speak Hebrew fluently. I don’t think it would be a good fit. That is not to say that I wouldn’t take an unpopular cause,” says Werbner, a partner in the Dallas firm of Sayles, Lidji & Werbner.

HLF leaders began approaching white-collar criminal defense lawyers earlier this month when their organization’s assets were frozen by the U.S. Treasury and President George W. Bush. On Dec. 4, Bush stood in the Rose Garden and accused the foundation of aiding and abetting Hamas terrorists in Israel — allegations HLF vehemently denies.

Initially, an Akin, Gump, Strauss, Hauer & Feld attorney stood alongside a foundation spokesman and reiterated HLF leaders’ assertions that the group supports only humanitarian efforts.

But by Dec. 5, George Salem — a partner in the firm’s Washington, D.C., office who initially had established Akin Gump’s client relationship with HLF — had told his partners he wanted to curtail ties with HLF.

Salem, a former solicitor of the U.S. Department of Labor from 1985 to 1989, told his partners at the Dallas-based 1,024-lawyer firm that he didn’t want to represent HLF in further matters. Salem has served as president of the National Association of Arab-Americans and as chairman of the Arab-American Leadership Council.

Akin Gump will continue, Salem says, to serve as the attorney of record for HLF in Boim v. Quranic Literacy Institute, et al., which is pending in the 7th U.S. Circuit Court of Appeals. The plaintiffs — family members of a murdered Israeli settler — allege that a number of organizations, including HLF, sponsored terrorists. The groups deny the allegations. But the Akin Gump partners have decided not to represent HLF in any litigation related to the frozen assets, Salem says.

He says the firm represented HLF primarily on the 7th Circuit case but also on other matters from time to time, generally answering subpoenas issued by state agencies.

“We do not discuss our reasons for accepting or declining to represent or be engaged by our current or prospective clients,” Salem says when asked about why Akin Gump has limited its relationship with HLF. He notes that the firm does not want to disadvantage HLF in its case with the government in any way.

Salem declines to comment on whether Akin Gump has recommended alternative counsel to HLF leaders or to confirm specific names of lawyers who may have been queried.

BUSINESS LOST?

Arch C. McColl III, a founding partner in Dallas-based McColl & McColloch and a white-collar criminal defense lawyer, says, “It’s all a business decision. Firms will lose business if they represent an organization that the president says is aiding and abetting Hamas.”

McColl may speak from experience. He represents InfoCom Corp., a Richardson-based company with a director who also serves on the HLF’s board. Earlier this year, the U.S. Treasury also froze InfoCom’s assets and alleged that the company had sponsored terrorism. Company officials deny the allegations.

“I cannot comment on that,” McColl says about Akin Gump’s decision.

But a moment later, he recalls an entry in the diary of the nation’s second president, John Adams, about his defense of British soldiers accused of murdering American colonists in the Boston Massacre of the 1770s. “The British were hated as much as the Hamas are now,” says McColl. Adams’ practice declined because of his decision to represent a group regarded as the enemy, McColl says.

But McColl contends he is unconcerned about such consequences because of his ties to the HLF. “I don’t worry about that,” he says.

John Bryant, a partner in Dallas’ Glast, Phillips & Murray, represented HLF from 1997 until March 2001. HLF was looking for a larger, national firm, so the group turned to Akin Gump last spring, while HLF’s lawyer, Bryant, a former Democratic U.S. congressman, lobbied the U.S. State Department, the Israeli Embassy and the Anti-Defamation League on HLF’s behalf. He says other lawyers gave him flak for representing HLF, but his law practice has suffered no setbacks.

“They were under constant rhetorical assault. It continued year after year. I went up there and talked with the agencies. I said, ‘This is a transparent operation. The Israelis know what they are doing. Why don’t you tell us how you would like this organization to operate?’ ” Bryant recalls.

In light of the lack of response he got back then, Bryant believes the federal government’s current actions are unjustified. The government, having insufficient evidence to pursue criminal charges against HLF, has instead decided with the freezing of the foundation’s assets that “we’re just gonna shut them down,” Bryant says.

“[HLF] has never even been interviewed by the FBI. The facts have not changed. But the politics have changed,” Bryant says.

Lori Bailey, a spokeswoman for the FBI in the Dallas office, says the agency doesn’t comment on specific allegations, but she notes she would not specifically refute Bryant’s contention that the bureau never interviewed HLF leaders.

HOT POTATO

Akin Gump’s decision and the subsequent scramble for HLF to find lawyers raise interesting questions.

“We have a long tradition in the profession of lawyers being obligated to provide representation to unpopular causes,” says Chuck Herring, a legal ethics expert and partner in Austin’s Herring & Irwin. “It will be interesting to see how many lawyers turn [HLF] down. It will show how hot a potato they are.”

In the HLF representation, Herring says, Akin Gump and other lawyers are within the bounds of the state rules.

“This is a decision individual attorneys have to make. You would expect a firm like Akin Gump to handle it this way. I’m not surprised. It’s a practical situation. We have a wave of patriotism in this country, and people are acting different. But to be scared to represent them is to surrender to terrorism. I’m sure there will be good lawyers who have the courage and perseverance to come forward,” Herring says.

Who will ultimately represent HLF was far from clear at press time.

Charles Blau, a partner in Dallas’ Meadows, Owens, Collier, Reed, Cousins & Blau, says Akin Gump partners had begun inquiring about his firm’s interest in defending HLF two weeks ago. But the suggestion sparked fireworks internally at the white-collar criminal defense boutique.

“There was a great deal of consternation and discussion. Let’s just say it was not universally accepted as a good idea,” Blau says.

The firm ultimately declined to take on HLF as a client, Blau says. Two other partners at the firm — Trey Cousins and David Reed — decline to comment on the matter.

FOUNDATION’S PLANS

When asked about the foundation’s plans for hiring counsel, Shrukri Abu Baker, the president of HLF, responds sarcastically: “We will have Ariel Sharon [the Likud Party Israeli prime minister] represent us and someone else from the ADL.” Abu Baker then hung up the phone.

For his part, Ghassan Elashi, the chairman of HLF, insists that Akin Gump still represents HLF in the most recent developments. “They have been good and fair. We’re working through them to find representation,” he says.

Elashi says other lawyers “are lining up, wishing that they can represent us.” Asked to name specific lawyers, Elashi says, “You will know when the time comes.”

Khalid Hamideh, a solo practitioner from Garland, Texas, who represents HLF in Holy Land Foundation for Relief and Development v. A.H. Belo Corp., The Dallas Morning News, et al. — a defamation suit that the foundation asked a judge to have nonsuited this week against A.H. Belo Corp. and The Dallas Morning News — also contends the list of prospective defense lawyers for his clients remains long.

“There is no shortage of lawyers on both sides — those who are fleeing and those who are dying for this case,” says Hamideh. He says financial resources will not be a concern for the attorneys who ultimately are hired to defend HLF. Even though the foundation’s assets are frozen, Hamideh says, “They have a lot of loyal supporters. I don’t think funding will be a problem.”

Ultimately, Hamideh says, HLF will hire “someone who is well known, someone who handled high-profile cases before.”

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