Legal contracts, details of Perry’s representation, now secret

By Angela Morris
Texas Lawyer
Originally published Sept. 9, 2014

When Gov. Rick Perry, facing two felony charges, chose to pay his lawyers from his campaign account instead of using state funds, the move eased the burden on taxpayers but also drew a veil of secrecy across details of Perry’s representation.

Using the Texas Public Information Act, Texas Lawyer asked the Office of the Governor for legal contracts and payment amounts for five lawyers that Perry hired immediately following his indictment. The office only released the contracts for criminal defense lawyer David Botsford, who received $79,550 in June, and Baker Botts partner Tom Phillips, whose firm got $15,000 in November 2013.

The governor’s office did not release the information for three other Perry lawyers: Houston plaintiffs lawyer Tony Buzbee and Washington, D.C., campaign attorneys Bobby Burchfield and Ben Ginsberg.

“We have provided you with the contracts with the state that are responsive to your request. The other attorneys you mention are not under contract with the state, and we cannot provide you with contracts that we do not have,” Lucy Nashed, a spokeswoman for the Texas Office of the Governor, wrote in an email.

The TPIA records show that Perry paid his first legal bills, totaling $94,550, from state funds. But within one week of his Aug. 15 indictment, Perry’s office announced that he would start paying his lawyers from his political action committee, Texans for Rick Perry.

Open records lawyer Bill Aleshire, shareholder in Riggs, Aleshire & Ray in Austin, wrote in an email, “If public funds are used, the records are subject to disclosure under the TPIA. I suspect Perry decided to stop using public funds for two reasons: One, it is of doubtful legality to use public funds to pay his attorney fees for defending him on criminal charges; and two, if he uses public funds, a lot more information about his attorneys’ activities and expense would be revealed than if he handled it as a private expense.”

Joe Larsen, a board member of the Freedom of Information Foundation of Texas, said the situation represents “something that has stuck in my craw for some time.

“What they will do is represent to the attorney general’s office that it’s not public information, because it’s not kept by on or behalf of the governmental body,” said Larsen, special counsel at Sedgwick in Houston. “While it may be Perry has retained these lawyers from his campaign account, as opposed to the state paying for them, it’s pretty hard to believe there’s no reference to them in any public documents between Perry and his staff or otherwise.”

Lauren Bean, a spokeswoman with the Texas Office of the Attorney General, the state agency that enforces the TPIA, declined to comment.

Texas Lawyer asked Perry’s campaign for copies of the legal contracts and payment records for Buzbee, Burchfield and Ginsberg. Travis Considine, the spokesman for Texans for Rick Perry, responded in an email to give a link to a published news article that summarized “who is on Gov. Perry’s legal/PR team.” Perry also has hired Steve Schmidt and Mark Fabiani.

A political action committee would not be subject to the TPIA, but it would have to reveal any attorney fee payments as expenditures on its next campaign finance report.

“The contracts are protected by the attorney-client privilege and are not subject to the public information act, as we are being paid by the campaign,” according to an email by Tony Buzbee, the lead lawyer of Perry’s defense team, who put together the team of attorneys.

“Each of these individuals has a specific skill set helpful for the team, and each are engaged in that specific skill set. Beyond that, I am not going to reveal legal strategy or talk about hourly rates, other than to say none of these attorneys are hurting for work, and all are proud to be working on this important case,” wrote Buzbee, owner and managing partner in The Buzbee Law Firm in Houston.

Lawyering Up

The news that Perry hired Botsford was widely reported in April 2014.

But Perry and his office lawyered up much sooner.

“I think I was the first one hired,” said Austin solo Chuck Bailey, who said he contracted with Perry’s campaign in the summer of 2013 to represent Perry in an individual capacity.

“It was just basically to advise him on just the general laws that related to Texas government and grand juries,” said Bailey, who has legal experience in both criminal and governmental law.

“I’ve been in and out of state government for over 30 years,” he explained, noting that he’s known Perry for years. “It’s not often I feel so strongly about what a client did, but there is no question in my mind what Gov. Perry did was lawful and constitutional.”

Bailey’s contract ended “when the grand jury made its decision.” He declined to comment about the amount of his attorney fee but said it’s “a safe assumption” that Perry’s campaign paid that bill.

When he was still serving as Perry’s individual counsel, Bailey noted that he worked closely with Baker Botts, which represented the Office of the Governor and Perry in his official capacity.

The governor’s office hired Baker Botts just six days after Judge Bert Richardson, who was overseeing the criminal complaint against Perry, chose members for a grand jury on Sept. 6, 2013.

The Sept. 12, 2013, engagement letter from Baker Botts to David Morales, then general counsel of the governor’s office, said the office agreed to pay a $15,000 flat fee “for preparation of an initial memorandum about the governor’s legal obligations to cooperate with the special grand jury prosecutor and the special grand jury, and the governor’s possible avenues to seek expedited judicial review of actions by the prosecutor or grand jury or to predetermine further actions by the special prosecutor or grand jury, and for the firm’s representation at an initial meeting with the special prosecutor.”

The letter said that Baker Botts anticipated that three lawyers would work on the matter: Phillips would be “the primary contact,” and lawyers Evan A. Young and Ashley A. Carr would assist him. The representation would stop after the firm delivered the “initial memorandum” and attended the meeting with the special prosecutor, said the letter.

Phillips is working on the team of lawyers defending Perry against the indictment.

Michael McCrum, owner of the McCrum Law Office in San Antonio, is the special prosecutor in the case. He said he’s never met with Phillips, but that in September 2013, he met with Bailey and Mary Anne Wiley, who is now general counsel for the governor’s office.

“It was about the general nature of the allegations that had been made in the complaint that was filed,” McCrum said about the meeting.

Botsford, Phillips, Burchfield, Ginsberg, Young and Carr each didn’t immediately return emails seeking comment. Fabiani didn’t immediately return a LinkedIn message seeking comment. Texas Lawyer couldn’t locate contact information for Schmidt.