SAN ANTONIO — Attorney Kent Schaffer, one of the court-appointed attorneys prosecuting Attorney General Ken Paxton in a securities fraud case, is running into trouble of his own in a racketeering and conspiracy case where he represents the former president of the Bandidos Motorcycle Club.
Federal prosecutors say that Schaffer has acted as “house counsel” to the organization, “entangling himself … to an extraordinary degree” in the club’s affairs so that he and his co-counsel are in effect “unindicted co-conspirators.”
Assistant U.S. Attorney Eric Fuchs is asking federal Magistrate Judge Henry J. Bemporad to remove Schaffer and his co-counsel, James Kennedy, as defense attorneys for Jeff Pike, the former Bandidos president.
Fuchs claims Schaffer and Kennedy have conflicts of interest, as also reported by the Houston Chronicle last week.
While Bemporad rejected an earlier version of the motion, it became clear at a hearing Friday morning that the government has produced enough evidence to cause him to reconsider.
Prosecutors have raised three issues.
First, they say the club had Schaffer review legal paperwork to try to identify snitches, which could conceivably involve him in the alleged conspiracy. Second, prosecutors say the club kept Schaffer on retainer as “house counsel,” raising the same issue.
Finally, they say Schaffer previously represented two witnesses against Pike, which could put him in an untenable position if he knows anything he would want to use against his former clients this time around.
It is already a conflict, prosecutors say, that Schaffer is insisting on being told their identities while they wish to remain anonymous until trial.
Bemporad postponed consideration of the first two issues Friday, while asking for additional written arguments from Schaffer’s team. Schaffer must now convince Bemporad that adding a new lawyer to the team who is “walled off” from information about the former clients will solve the conflict. Otherwise, Bemporad said he will disqualify Schaffer and Kennedy.
After that issue is resolved, the court will have a chance to consider whether or not Schaffer had any actual involvement in a criminal enterprise.
Evidence that damages Schaffer’s reputation could prove highly embarrassing to the Collin County judges who agreed to pay Schaffer and two other attorneys more than $1 million to prosecute Paxton in a case based on a mistaken assumption.
Assistant U.S. Attorney Joey Contreras argued that Schaffer also has a conflict between protecting his own reputation and serving his client.
“He’s trying to salvage his own reputation because it does sound bad,” Contreras said, citing allegations of murder and attempted murder.
The evidence, which includes testimony from an agent of the Drug Enforcement Administration and two members of the club, remains under seal. Schaffer was given a redacted copy of an affidavit by the DEA agent Friday.
However, because the testimony remains under seal, it’s impossible for the public to know how much of this could be gamesmanship.
Schaffer told the judge that, as best he could figure, the witnesses were likely two club members he had represented in “assault-type cases” over bar fights.
His argument was that a bar fight involving a club member in his individual capacity would have no bearing or connection to the alleged criminal conspiracy.
This matter creates a problem with appearances for Schaffer. The case against Paxton is based on an allegation that he put his own interests before his partners. Here, Schaffer is effectively asking a judge to let him put his own interest before the interest of his former clients.
Contact Jon Cassidy at [email protected] or @jpcassidy000.