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State Supreme Court ruling favors gaming lawyer

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Thursday, Jan. 14, 2010

HARRISBURG -- A staff lawyer for the Pennsylvania Gaming Control Board can continue to be represented by a Pittsburgh law firm the board hired because of an ongoing grand jury investigation, the state Supreme Court ruled.

The Tribune-Review reported in November that a grand jury under Attorney General Tom Corbett is investigating the 2006 award of slot licenses by the state gambling board.

The court order issued Tuesday affirms the grand jury investigation is under way and provides a glimpse at a behind-the-scenes legal battle over who represents a key gambling board employee. Motions and briefs in the case were sealed because of the secrecy of the grand jury process.

The Supreme Court reversed a decision by a grand jury judge who ruled that Reed Smith, a Pittsburgh firm the board retained, should be disqualified from representing agency lawyer Nan Davenport. The attorney general's office challenged the notion of having a law firm employed by the board represent a witness.

Davenport, the chief deputy enforcement counsel, is not accused of wrongdoing. She was out of the office Wednesday and could not be reached for comment.

"We are cooperating with the grand jury and have contracted with outside counsel but are not commenting any further on the matter," said Doug Harbach, a board spokesman. The board has paid Reed Smith $50,131 to date, Harbach said.

The court order outlines an argument over a "potential conflict of interest," said Bruce Antkowiak, a professor at Duquesne University Law School. "Generally speaking, the issue is whether one law firm or one lawyer can represent more than one person who is of interest to a grand jury."

"There's nothing on the surface of (the court order) that you can draw any inference about," Antkowiak said.

The Supreme Court said the attorney general can challenge the firm's representation of other gaming board employees.

W. Thomas McGough Jr., the Reed Smith lawyer listed in the court ruling, did not return phone calls. A spokesman for the law firm said McGough was in a trial on the West Coast.

Kevin Harley, a spokesman for Corbett, declined comment.

"This is not an uncommon situation," said Antkowiak, a former assistant U.S. attorney. Prosecutors "always get nervous" when a lawyer or firm represents targets and "certain peripheral people," he said. It often comes up in legal proceedings against corporations, he said.

Antkowiak said there is nothing inherently wrong with a law firm representing more than one party in an investigation. "You have to look at it on a person-by-person basis to see where a conflict arises," he said.

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