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County files motion to restrict former attorney’s testimony in lawsuit

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By AJ Vicens

Former county attorney Frank Hutfless may have violated attorney-client privilege by offering to testify against the county in a federal wiretapping lawsuit, according to the Jefferson County Attorney's Office, and the county is now asking a federal judge to make sure it doesn't happen again.

"In preparing declarations and in a previous deposition … you may have already improperly disclosed attorney-client privileged information in conflict with your duty of loyalty to your former client, the (Jeffco County Commission)," Assistant County Attorney Writer Mott said in a July 28 letter to Hutfless.

Hutfless was the county's top in-house attorney from February 2005 to March 2007. He recently submitted a declaration saying that he believes Jeffco Commissioner Kevin McCasky and former commissioner Jim Congrove may have broken state and federal laws in the way they handled Mike Zinna, a long-time county critic. In that declaration, Hutfless said his opinion comes from publicly released evidence, statements made by a former commissioner and a report done by the Colorado Bureau of Investigation. Mott told the Courier Hutfless' declaration was "meaningless" because he didn't say what evidence he had to back up his claims.

Hutfless wouldn't comment on the matter when reached Aug. 7.

Zinna alleges that Congrove, former assistant county attorney Duncan Bradley and a man named Robert Cook set up a website to defame him using illegally obtained military records and e-mails.

The case is working its way through the federal court system, and Hutfless will be deposed in the case Aug. 19 to discuss his claims about McCasky and Congrove breaking federal laws while he was the county attorney. The county is not a defendant in the case, so Mott filed a motion asking the judge to allow him to sit in on Hutfless' upcoming deposition and to bar him from revealing any attorney-client privilege.

"This is just generally to remind him of his ongoing duty to his former client, the board," Mott said in an Aug. 7 phone interview. "There hasn't been any waiver (of attorney-client privilege)."

Mott said the request to the court is a precaution, and since the county is not a defendant in the case, the county wouldn't be able to object to any of Hutfless' testimony in the deposition without the court order.

Mott said Hutfless hasn't told the county what information he has, so it's possible the county won't have to object to anything during the deposition.

"We could go into the deposition, and it could turn out there's none of (the testimony) that's privileged," Mott said. "But it could be that we're objecting quite a bit. I have no idea."

Mott added he's not sure what Hutfless will present to back up his claims of illegal activity by McCasky and Congrove.

"If what he says in his declaration is true, he had a duty to report it while he was county attorney to law enforcement, and he didn't do that to my knowledge," Mott said.

Zinna said Hutfless has cooperated with the CBI and a special prosecutor during related investigations in recent years, and that Mott's request is an attempt to prevent Hutfless from revealing what he knows.

"Last week, out of one side of their mouth, county officials claimed that Hutfless' sworn statement is 'meaningless,' " Zinna said in an e-mail. "This week, out of the other side of their mouth, county officials filed a 28-page motion to silence Hutfless from further expanding on his sworn statement and testifying against them on the witness stand. You do the math."

Contact AJ Vicens at aj@evergreenco.com, and check www.columbinecourier.com for updates and breaking news.