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How will lawyers be paid?

Role of BYU professor still to be determined

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With two high-powered attorneys representing him, former Olympic bid leader Tom Welch could probably not be in a better position to defend himself of conspiracy-laden charges related to his efforts to bring the 2002 Winter Games to Salt Lake City.

Except that now he has to keep them happy . . . and paid.

According to Welch's newest attorney, Brigham Young University law professor Michael Goldsmith, Welch is "still trying to line up appropriate funding for his entire legal team."

That might not be easy if the Salt Lake Organizing Committee decides it doesn't have to advance legal fees for Welch and former bid committee vice president Dave Johnson.

SLOC President Mitt Romney said Wednesday it would be financially irresponsible to cover those fees if the organizing committee is not legally obligated to do so. He has asked attorneys to review the situation.

Welch retained Goldsmith to serve as local counsel for his defense team, based in Washington, D.C. Goldsmith says he will continue to work on the case "subject to Mr. Welch being able to secure funding for his entire legal team."

Another issue that seems to be looming on the horizon for Welch is deciding what role his two very experienced and well-connected attorneys will play in what could turn out to be one of the most publicized trials in Utah history.

Neither Welch's lead attorney, William Taylor, nor Johnson's attorney, Max Wheeler, could be reached for comment.

A federal grand jury handed up an indictment last month charging Welch and Johnson with 15 felony counts of fraud, conspiracy and racketeering in connection with about $1 million in cash, gifts and scholarships given to International Olympic Committee members to obtain their support for Salt Lake City's bid to host the 2002 Winter Games.

Welch and Johnson pleaded not guilty at their arraignment Monday. They are scheduled for another court appearance in October, but a trial is not expected to start for another year.

Welch first approached Goldsmith last winter.

Aside from teaching BYU law students evidence and criminal procedures, Goldsmith brings to the case four years on the U.S. Sentencing Commission, 10 years on the American Bar Association Racketeering Committee, two years as legal counsel for the New York State Organized Crime Task Force, and two years as counsel for the U.S. House of Representatives Select Committee on Assassinations.

He has also served as U.S. attorney in Philadelphia, state prosecutor in Vermont, and law professor at Vanderbilt University. Most recently, Goldsmith has been researching legal issues related to the "Innocence Project," a national network of law professors and lawyers trying to help people who have been "wrongfully convicted," he said.

"I'm considered to be an expert in federal criminal prosecutions," Goldsmith said.

Indeed. Among other things, Goldsmith assisted in the investigation of New York mob boss John Gotti, and in 1990 Goldsmith was called to testify at Gotti's trial regarding the legality of the state's electronic surveillance of organized crimes, which he supervised.

It was Welch's daughter, Lindsay Welch, a recent BYU law school graduate and a former student of Goldsmith, who asked Goldsmith to represent her father: "She approached me last winter and asked me to help him if I could."

Goldsmith was too busy at the time and instead referred Welch to William Taylor, whom he has known for almost 20 years in part through their involvement in American Bar Association committees.

Among other things, Taylor has represented members of the Clinton administration during the Whitewater investigation and brokered a deal between the son of former Commerce Secretary Ron Brown and federal investigators looking into campaign finance abuses.

Welch hired Taylor in January. But in May, Taylor asked Goldsmith to submit an affidavit to the Department of Justice as an independent expert, which in part strongly disagreed with the notion that bid committee leaders violated Utah's commercial bribery statute, one of the laws embraced by the indictment.

After the indictment was filed, Welch again asked Goldsmith to serve as "local counsel" for his defense team. Local counsel usually provides the credentials needed for out-of-state lawyers to practice law and little else.

But Goldsmith says he told Welch he understood "his situation was a difficult one and I would help as best as I could."

Thus far, his role is still largely undefined, "at the very least I'll be analyzing complex federal statutes for the defense," he said.

Even less clear is where the money for the defense team will come from.

After the indictment was filed, Romney asked outside legal counsel to determine what SLOC's contractual obligations are.

Romney said he alone will make the decision about advancing legal fees for Welch and Johnson because the amount of money involved is expected to be less than $5 million. The SLOC Management Committee does not need to approve expenditures of less than $5 million.

"If we have an obligation, we will fulfill it completely," Romney said. "If we do not have an obligation, our responsibility to have break-even Games and to put on the Games for the athletes of the world suggest it would be irresponsible for us to hand out money we don't have an obligation to pay."

Welch and Johnson would not have to be convicted in federal court to get SLOC off the hook for their legal fees thanks to a bylaw change made in February 1999 at the same time that Romney was hired.

SLOC's bylaws were amended then to spell out the conditions under which legal fees could be advanced to trustees, officers, employees or agents of the organizing committee.

The new conditions require a written affirmation of the person's "good faith belief" that he or she has not engaged in "fraud, criminal conduct resulting in a felony conviction, malicious or willful misconduct."

In addition to the written affirmation, the person must supply a written promise to repay any legal fees advanced "if it is ultimately determined that he or she did not meet the standard of conduct."

Welch and Johnson have submitted the required documents, according to SLOC. At issue is whether organizers believe they were telling the truth when they said they did not violate the standards.

If Romney decides not to advance fees, SLOC could end up being sued by Welch and Johnson. If, however, the pair are convicted, it seems clear that SLOC would not have to worry. The organizing committee would be freed of having to pay any legal fees and entitled to be reimbursed any fees it had advanced.

What does concern SLOC about coming up with the money now is the possibility that Welch and Johnson may not be able to repay SLOC if they are convicted.

Goldsmith says a lack of funds "would be very unfortunate and would really interfere with Mr. Welch's ability to mount an effective defense, especially given the millions of dollars and thousands of man hours spent by the federal government in this effort."

"Mr. Welch requires considerable resources to try to respond to this indictment effectively," he added.

Still, Goldsmith says he may "consider creative ways" to continue to assist Welch in a worst-case scenario but most likely "would not be able to participate extensively if funding were withdrawn."

How much Goldsmith participates depends on his obligations to BYU, he said. He had planned to take a sabbatical this fall to further his work with the Innocence Project. But "if my work as a member of the defense team interferes with my responsibilities to BYU, I would convert the sabbatical into an unpaid leave of absence," he said.

Researching the rights of people who have been wrongfully convicted is one of the things that both prepared him and made him take particular notice of the Welch case, Goldsmith said. Although neither Welch nor Johnson has been convicted of anything, Goldsmith says their case is "a good example of actual innocence."

"They basically conformed their conduct to the cultural expectations and without violation of any law," he said. "The evidence points to their innocence."

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