A federal district court allows the government to use an affidavit given by a Virginia elder law attorney in a state bar proceeding to impeach the testimony of the attorney in a federal criminal case involving misappropriation of funds from elderly clients. United States of America v. Washburn (U.S. Dist. Ct., W.D. Va., No. 6:20-cr-00013, May 21, 2021).
Lynchburg, Virginia, attorney Cherie Ann Washburn held herself out as a specialist in elder law and estate planning. The Virginia State Bar opened an investigation into Ms. Washburn for misappropriating client funds while acting as an agent under powers of attorney. Ms. Washburn consented to the revocation of her license to practice law and signed an affidavit admitting that the allegations of misconduct were true. Virginia Supreme Court rules provide that the affidavit is not an admission in any proceeding except to the one relating to Ms. Washburn’s status as a member of the bar.
The federal government indicted Ms. Washburn on several counts related to the misappropriation of funds. Ms. Washburn filed a motion to prevent the affidavit from being mentioned in front of the jury, arguing that the court rule preventing the use of the affidavit as an admission in another proceeding is a safeguard that promotes the interest of the bar in bringing matters to a conclusion. The prosecution argued that they only planned to introduce the memo to impeach Ms. Washburn’s testimony if she took the stand.
The United States District Court, Western District of Virginia, denies Ms. Washburn’s motion, holding that using the affidavit to impeach Ms. Washburn’s testimony would not violate the rule. According to the court, the rule merely “states that such an affidavit ‘shall not be deemed an admission’ in another proceeding, and since the Government does not plan to use it as such, it would not run afoul of the Rule.” The court notes that if there were competing interests between the rule and federal criminal law, “the federal interests in enforcing the federal criminal law and ensuring that the defendant not be provided ‘a shield against contradiction of his untruths’ outweigh any contrary state interests.”
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