Bart Reagor will not use ‘advice of counsel’ defense in federal bank fraud trial

Bart Reagor arrives at Amarillo federal courthouse on April 26, 2021.
Bart Reagor arrives at Amarillo federal courthouse on April 26, 2021.(KCBD NewsChannel 11)
Published: Sep. 21, 2021 at 9:04 PM CDT
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LUBBOCK, Texas (KCBD) - Two weeks ago Amarillo Judge Kacsmaryk ordered Bart Reagor’s attorneys to provide any records showing Reagor relied on his attorneys’ advice when moving loan proceeds to personal accounts. On Tuesday he filed a notice to the court saying he would not use the advice of counsel defense.

The judge’s order came after Reagor’s defense attorney told local media Reagor was acting based on legal advice, which prosecutors say could set the stage for an advice-of-counsel defense in the criminal trial. The motion demanding records of that advice states bringing that up in trial would “delay the proceedings, require a lengthy recess, and inconvenience the court and the jury.”

Prosecutors also claim that Reagor would waive attorney client privilege by claiming an advice-of-counsel defense. Reagor attorneys say asking for documents showing legal advice is excessive in this case and already involves more than 600,000 documents, according to the defense attorney’s response to the governments motion.

“What more discovery could the government possibly need in order to combat an advice-of-counsel defense when raised at trial? Much of the vast discovery already provided is comprised of years’ worth of emails between every member of the Reagor-Dykes Auto Group corporate entity, including its corporate counsel. The government has also already interviewed many, if not all, of these individuals. If the defense were to raise advice-of-counsel, we would not oppose a government request for a brief recess or continuance. But to suggest the government would require a ‘lengthy recess’ to address a ‘host of issues’ is belied by the vast discovery through which the government has already carefully culled.”

Judge Kacsmaryk granted the motion to compel stating Reagor’s attorneys placed protected information (attorney-client privilege) in issue through his media statements. Because he did this, “he implicitly waives its use protectively under that privilege.”

“Defendant may not simultaneously wield the privilege as a “sword” to combat the Government’s case while wielding the privilege as a “shield” to prevent disclosure of attorney-client communications.”

Reagor’s attorneys had until this week to provide all communication Reagor intended to use in his advice-of-counsel defense. Being that the notice was given he would not use the defense, no documents need to be provided.

“The defense notes there are email exchanges - already disclosed to the government - between Rachel Reagor (an attorney) and counsel for International Bank of Commerce (”IBC”). The defense may rely on some or all of these email exchanges but does not intend to call Rachel Reagor as a defense witness to support an advice of counsel defense,” the notice reads.

Prior to Mr. Reagor’s indictment, 15 of his employees pleaded guilty to various crimes involving dummy flooring and check kiting at Reagor-Dykes. Thirteen of the employees have been sentenced. Shane Andrew Smith, the former Chief Financial Officer for RDAG, and Steven Reinhart, the legal compliance director for RDAG, are expected to be sentenced in October.

Read more on the RDAG and Bart Reagor case here.

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