The NRA's Outside Counsel - Ethical And Billing Concerns

An article concerning William Brewer III, the NRA's outside counsel, written by Mike Spies appeared yesterday in the New Yorker and was contemporaneously published in ProPublica, and The Trace. I had been told a few weeks ago that rumors about such an article had been swirling amongst the lobbyists on "K Street". After reading the article, the rumors were true that it would report on his questionable ethics and tactics within the NRA.

Brewer has been the NRA's outside counsel for approximately the last year and a half. In that time, his firm has billed in the neighborhood of $24 million. He was hired initially to sue Gov. Andrew Cuomo, Department of Financial Services head Maria Vullo, and the NY Department of Financial Services over their warnings to financial services companies on the "reputational risk" of having dealings with the NRA. It was alleged that their actions had cost the NRA millions of dollars in damages. In May, US District Court Judge Thomas McAvoy dismissed the moneydamages  part of the lawsuit against DFS and against Cuomo and Vullo in their official capacities. He did allow the First Amendment part of the case to continue.

Brewer and his firm have recently represented the NRA in their lawsuit against Ollie North and are involved in the cases in Virginia dealing with Ackerman McQueen.

According to the article, senior accountants at the NRA were raising red flags regarding questionable expenditures including payments to Brewer's firm.

In 2018, accountants for the National Rifle Association began cataloguing for its board of directors questionable financial arrangements that had led to millions of dollars in payments to a group of the organization’s top executives and consultants. The N.R.A. was experiencing cash-flow problems, and the accountants were trying to address what they believed to be serious financial mismanagement.

For a year and a half, the N.R.A. has employed an outside counsel, William A. Brewer III, who represents the organization in high-profile legal disputes and is also deeply involved in its internal decision-making. The accountants believed that the financial dealings they had found could jeopardize the organization’s nonprofit standing with regulators. Yet, according to a former senior official in the N.R.A.’s treasurer’s office, Brewer tried to thwart their efforts to draw attention to the problematic payments.

The former senior employee, Emily Cummins, who worked for twelve years in the N.R.A.’s treasurer’s office, quietly resigned, in November, as the group’s internal strife escalated. Cummins, in a written statement that began circulating this month among N.R.A. leaders, including at least one board member, alleges that Brewer obstructed the work of N.R.A. accountants and vastly exacerbated the organization’s financial woes as he charged it hefty legal fees. Cummins confirmed that she had produced the statement, which was obtained by ProPublica, but declined to provide any additional comments. Brewer’s firm said its work was justified and of the highest quality.

The statement lays out a list of allegations regarding Brewer’s legal work and his treatment of N.R.A. staff as questions surfaced about his law firm’s billings, which totalled twenty-four million dollars in a thirteen month period. In the first quarter of 2019, Brewer’s firm charged over ninety-seven thousand dollars per day, according to internal N.R.A. documents posted anonymously online.

You may remember that then-NRA President Oliver North and 1st VP Richard Childress raised questions regarding the billings of Brewer's firm in a letter dated April 18th. They referenced advice from then NRA Board Counsel Steve Hart that it was part of their fiduciary duty to ensure the billings were accurate and reasonable. Prior to the Annual Meeting in Indianapolis, Mr. Hart was summarily dismissed by Wayne LaPierre even though he was the Board's counsel and not the NRA's counsel.

Here is where it gets really interesting. Brewer sought to intimidate NRA staff that questioned his billings, arranged to have his bills paid first, and reportedly threatened to ruin the professional reputations of those accountants using "burn books" or dossiers containing private information.

Cummins accuses Brewer of trying to intimidate, deceive, and silence N.R.A. staff who were processing his bills while growing increasingly troubled by the organization’s mismanagement, exorbitant spending, and questionable deals involving conflicts of interest. Former colleagues of Brewer’s, as well as written correspondence obtained by ProPublica, broadly supported her claims.

Cummins writes in her statement that Brewer “intimidated NRA staff and threatened our professional livelihoods.” She alleges that he used pressure tactics with staffers “to keep them acquiescent,” compiling what she called “burn books” filled with personal information that he could use against individuals.

“I witnessed what appeared to be unrealistic and duplicative billing from Bill Brewer,” Cummins writes. “I witnessed that Bill Brewer himself created a 2018 cash flow crunch by interfering with accounts payable to prioritize paying himself immediately versus other NRA vendors that had been providing goods or services for months without payment, also jeopardizing the NRA’s biweekly staff payroll.”

Ms. Cummins, I was told by a prominent Second Amendment attorney who is personal friends with her, was a true believer in the Second Amendment and gave up a lucrative position with what was then Wachovia Bank. Ms. Cummins is a Certfied Public Accountant, a Certified Internal Auditor, and holds advanced degrees from both George Washington University and George Mason University. She served the NRA as Manager of Tax and Risk Management and then Managing Director of Tax and Risk Management for over 11 years. This is not the type of person who would make unfounded and inaccurate charges. She impresses me as a sober individual who cared deeply about the organization and its mission.

As you can imagine, Brewer, Attorneys and Counselors, have denied compiling burn books as well as any improper or excessive billing on their part. They have built a reputation on being very aggressive in their tactics which also resulted in significant billings. A Dallas publication back in the 1990s referred to Brewer and his previous partner John Bickel as "high-priced, high-profile Rambo lawyers".

“Bill’s representation of the N.R.A. is a classic example of ‘servicing the client to death,’ ” Hal Marshall, a former Bickel & Brewer partner, told ProPublica. “We tried to leave no stone unturned in our cases, and it often yielded great results. On the other hand, the bills were hefty.”

Brewer and his firm bring with it ethical issues. Currently, Brewer is appealing a fine of $177,000 for attempting to influence potential jurors and witnesses by using a push poll in Lubbock. This fine and admonishment was affirmed by the Texas 7th Court of Appeals in 2018. They concluded that the trial court judge acted appropriately.

If the right to a civil jury trial, enshrined in both the Seventh Amendment to the United States Constitution and Article I of the Texas Constitution, is going to signify anything at all, it must denote the right to trial by a fair and impartial jury. Any conduct that erodes that fundamental core principle erodes public confidence in the entire judicial process. Judges, attorneys, and litigants must never condone practices that undermine that principle if the right to a jury trial is to remain “inviolate.”

Here, the trial judge was faced with serious allegations that attorneys for one party had consciously attempted to preemptively tip the balance of a fair and impartial jury in favor of their clients. After diligently hearing testimony for several days, the Honorable Ruben G. Reyes reached the conclusion that counsel’s conduct was committed in bad faith, that it affected a core function of the court, and that it was sanctionable. He then set the monetary amount of those sanctions in a rational manner based on competent evidence before him. Under the record before this court, we cannot say the trial judge abused his discretion in imposing those sanctions. Accordingly, the judgment of the trial court is affirmed.

Brewer has since appealed this decision to the Texas Supreme Court. The case appears to have been fully briefed and now awaits either an oral hearing or an order dismissing the appeal. However, his ethical problems in Texas did preclude him from representing the NRA in Virginia where he had applied for pro hac vice participation. US District Court Judge Liam O'Grady was none too pleased by Brewer's failure to mention that in his motion to appear.

If this were the only ethical case involving Brewer it would be one thing. However, as Spies points out, a number of former associates of Brewer, Attorneys and Counselors, were fired for raising questions about either billing or ethical issues.

In addition to Cummins’s statement, ProPublica obtained text messages and an e-mail composed by former Brewer employees in March, 2018, that alleged unethical behavior by the firm. Four former colleagues of Brewer’s—three of whom, like many firm employees, were abruptly fired during the past two years—described a pattern of disregard for ethical billing and conduct. The texts and e-mail were sent just before the N.R.A. began to heavily invest its dwindling resources in litigation by the firm.

In early March, an attorney who had worked as a Brewer associate sent an e-mail to another New York City-based law firm. The firm worked for a hedge fund that was locked in a legal fight against Eco-Bat, a lead-production company represented by Brewer’s firm. The e-mail warned, “A number of attorneys have recently left Brewer, concerned about the firm’s ethics violations.”

It went on to say that a Brewer attorney believed that he had been fired “for refusal to violate ethical rules.” The attorney thought that he had identified a disqualifiable conflict of interest involving an attorney on his team, the e-mail said. When the Brewer lawyer “confirmed his initial analysis,” the e-mail said, “he was told to drop the matter and terminated the following Monday.”

These allegations were denied by Brewer's firm. They went on to win the case for Eco-Bat referenced above and the client praised Brewer's work.

So where was the Board of Directors in this whole affair of questionable and excessive billing and threats to NRA staff. Even more importantly, where was the Audit Committee which was given a report with these concerns? I'll let Ms. Cummins have the final word on that.

According to Cummins’s statement, Brewer misled the N.R.A.’s board and “used information gathered by NRA staff to fit different purposes and to frame a different story to the board of directors.” It also says that Brewer “effectively silenced NRA staff who uncovered issues needing board of directors attention” and “influenced members of the board” by “selectively withholding information relevant to their decision making.”

Rogers, the Brewer partner, dismissed Cummins’s statement and said that it “may reflect a radical misunderstanding of certain work my firm performed.” Cotton, the N.R.A.’s first vice-president, said, “I am not aware of any concerns that would preclude the firm from representing the N.R.A., period.”

Cummins concludes her statement by saying that, while still an N.R.A. employee, she had tried to sound an alarm regarding the N.R.A.’s legal representation, writing, “I raised concerns about Bill Brewer internally and with the board audit committee.” According to Cummins, she was ignored.

The best you can say is that the Board of Directors was hoodwinked by Brewer and chose to believe him rather than a long-term loyal employee who was raising issues and asking difficult questions.