Attorney conflicts, delays — seeking justice for Dan Markel continues

Famous fictional mob lawyers have represented more than one family member.

“The Godfather’s” Tom Hagen repped Vito and Michael Corleone; Maurice Levy, in “The Wire,” took on the causes of multiple members of the Barksdale crime family; “Mob City’s” Sid Kleinman served as defense for Bugsy Siegel and Mickey Cohen as well as other members of their crime syndicate; and of course in “The Sorpanos,” multiple lawyers including Neil Mink, Harold Melvoin, and Robert Baccalieri, represented the (often conflicting) interests of numerous family members.

On TV, it may be easier to cast one lawyer for all members of a crime family across episodes to build continuity and allow fans to benefit from familiar characters.

But in real life, it just doesn’t happen. And shouldn’t.

Unless you’re Florida defense attorney Daniel Rashbaum, who took up the flag, collected the fees – and has now fallen on that predictable sword – in his representation of multiple members of a family accused (and in one case convicted) of murdering FSU law professor Dan Markel.

Markel was killed in July 2014 by hitmen Sigfredo Garcia, sentenced to life, and Luis Rivera, who pled and cooperated, sharing how the two were hired to kill Markel by members of his ex-wife Wendi Adelson’s family. Wendi has been named as an unindicted co-conspirator. Her brother, Charlie Adelson, was convicted in November 2023, and now her mother, Donna Adelson, awaits trial. The hitmen were linked to the Adelson family through Katherine Magbanua, Charlie’s then-girlfriend and the mother of Garcia’s children.

Following a sting operation and the arrests of the hitmen in 2016, Rashbaum entered the scene first as Donna’s lawyer. Charlie hired David Oscar Markus (who successfully defended former Tallahassee Mayor Andrew Gillum and members of the Cali Cartel).

These attorneys and Wendi’s lawyer, John Lauro (who represents former President Donald Trump), signed a letter calling the state’s theory of their family’s involvement “fanciful fiction.”

But shortly after Charlie’s arrest in April 2022, Markus withdrew as his counsel, and Rashbaum stepped in to take his place. Donna and her husband Harvey found a new attorney to speak for them as needed – at least on paper. In reality, the connection between Donna and Rashbaum only grew stronger during Charlie’s incarceration. Publicly released jail calls suggest extensive communication between Donna and Rashbaum through this time, with Donna using the lawyer for personal counsel and serving as an intermediary between the mother and son on Rashbaum’s secure, unrecorded jail line.

But her plans weren’t foolproof, despite Donna’s best efforts to avoid incriminating content on monitored lines. On one recorded call – captured a few days after Charlie’s conviction – Donna can be overheard speaking after she thought the call had dropped. She and they were discussing their plans to flee to a non-extradition country and hoping to avoid one possibility Rashbaum warned of – that while they may get out in time, they could get stopped at the airport.

That’s precisely what happened, too.

Donna was arrested just as she was about to board a plane with a one-way ticket to Vietnam. Her lawyer at the time, Marissel Descalzo, pulled ‘a Markus’ and, after two initial hearings, also stepped aside.

Once again, it was Rashbaum who filled the void.

The entire growing universe of legal experts covering Markel’s murder online gave a collective gasp when Rashbaum reentered as Donna’s counsel. Here’s why: multiple layers of conflict are inherent when one lawyer tries to represent various members of the same family or criminal syndicate, even if sequentially. Doing so presents significant ethical, legal, and practical challenges.

Lawyers are bound by ethical obligations to zealously represent the best interests of their clients. When a lawyer represents multiple members of the same family or conspiracy, their loyalty can become divided. For example, one family member might cooperate with law enforcement, while another might prefer to fight the charges in court. The lawyer’s duty to both clients become compromised if those strategies conflict. Representing both clients would likely lead to a situation where the interests of one client are directly at odds with the others.

There are also strategic conflicts. When representing multiple conspiracy members, the lawyer may inadvertently learn sensitive or conflicting information that could harm one client while benefiting another. A lawyer privy to sensitive information in a past case (e.g., details about criminal activities or internal family dynamics) could be put in a position where that knowledge would affect their representation in the new case. They cannot use that knowledge, but they also cannot unknow it, potentially compromising their defense strategies. It’s why the Florida Rules of Professional Conduct – following the American Bar Association – says that “[t]he potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co-defendant.”

All of this was explained to Donna Adelson by Judge Stephen Everett when she first re-retained Rashbaum as her “new-again” attorney. Donna acknowledged the conflict and waived it. Repeatedly. So, too, did Charlie Adelson – or so the court was led to believe. Rashbaum insists that Charlie had given Rashbaum his verbal waiver, permitting his sort-of-former lawyer to represent his mother in her trial. And that remained the case until today – Sept. 17, the first day of what would have been jury selection in Donna’s trial. More than 100 prospective jurors were already in the courthouse when it was revealed that Charlie decided to revoke his waiver, permitting Rashbaum to represent his mother.

Worse, Rashbaum didn’t even have such a waiver in writing.

Everett wasn’t pleased, nor was Assistant State Attorney Georgia Cappleman, who has quarterbacked the prosecution of Markel’s executors.

“Does the State wish to be heard regarding withdrawal of counsel?” Everett asked her.

“I don’t think I have anything appropriate to say on the matter, judge,” Cappleman replied.

“Well put,” Everett acknowledged.

“We would like to proceed,” Cappleman continued, asking Everett whether Alex Morris, Donna’s second-chair counsel, was prepared to go to trial. Morris, also predictably, was not.

“I need time to regroup,” Morris said.

Everett continued the case, citing that the conflict issues were “so severe” that if they were to move forward, it could lead to a successful appeal. Rashbaum cited “surprise issues of the last couple of days” as the reason for the last-minute withdrawal. But according to every lawyer commenting on this case, nothing is surprising about the conflict itself – or where it would lead.

One legal expert and case commentator, Carl Steinbeck, predicted this very turn of events on Day One, following Donna’s first hearing with Rashbaum, saying that it was an “extreme dilemma” to have a lawyer representing two folks accused of doing the same crime and that there was no way to prevent the very thing that ultimately happened today. “If you look back at my past videos, I thought this conflict issue wasn’t properly addressed,” Steinbeck shared in a livestream on the eve of the trial.

Of the three possible outcomes that could result from Rashbaum’s conflict – withdrawal and delay, mistrial, or a viable claim for appeal, today’s outcome may be the “best.” But it still stings for those who await justice.

“Rashbaum’s insistence on representing both Donna and Charlie despite a clear conflict of interest and against common sense has only increased taxpayer cost in prosecuting the case and delayed, once again, justice for Dan Markel, his family, his loved ones, and members of the public who patiently wait for full justice to be served,” said Tamara Demko, an attorney who serves as a co-manager of Justice for Dan, Inc.

Regarding these costs, Everett was clear. “As to the inconvenience and the delay this has caused, I’m not happy, but at the same time, we’re trying to get this right so we don’t have to do it a second time,” he said, adding that upon a successful conviction, the state may bill all costs associated with the continuance to the defendant.

However, this case may not have seen the end of tricky legal issues.

The list of lawyers in this case who have become a part of the story is perhaps also unusual. Beyond Rashbaum and his conflicts, a few more attorneys have found their way onto witness lists. There’s Markus, who had to appear before Everett this week regarding testimony he might have been called to give regarding meetings he attended with Garcia’s former attorney; there’s Michael Weinstein, Charlie’s longtime friend and sometimes-attorney, who received a subpoena; Jim Lewis, Garcia’s first attorney, who was recently deposed, perhaps relating to a wiretap in which he tells Magbanua that Weinstein promised the Adelson family wasn’t going to talk to police.

Finally, there’s Tara Kawass, one of Magbanua’s attorneys, who also appears on the witness list. For his part, Rashbaum may have some new concerns on his mind. “I’m not worried about the Constitution,” he was overheard saying on a live mic before one of Tuesday’s conflict hearings.

“I’m worried for me now, with the Bar,” it sounds like he says.

“Today’s turn of events is disappointing and frustrating. Dan Rashbaum had an obvious and significant conflict that should have been resolved in writing long before the morning of the trial. I believe he failed his ethical obligation as an attorney first by taking on Donna’s case after representing Charlie and then by not properly obtaining the waivers needed to do so,” said Justice for Dan, Inc. co-manager and attorney Jared Ross. “It is most heartbreaking for Ruth, Phil, Shelly and the entire Markel family who have shown strength and grace throughout the last 10 years. If your thoughts turn to anyone, it should be to them and how they now have to endure another delay in justice for their son, Danny.”

Perhaps this delay represents but a bump in the road toward complete justice. Following today’s dramatic hearings, Alex Morris spoke as Donna’s now solo counsel for the first time.

“I think that it’s going to open up opportunities as it relates to negotiations,” Morris told Tallahassee Democrat reporter Jeff Burlew. “It opens up pathways to exploring different defenses that may not have been previously available. There are ways of resolving very difficult cases, and this may open up an opportunity for a different dialogue.”

“Resolve it outside of trial, you’re saying?” asked Burlew.

“Yes, sir,” Morris affirmed.

“Everyone knew how fraught with difficulty this situation was with the same lawyer, Mr. Rashbaum, representing Charlie and Donna,” Burlew said, asking the question all observers have been shaking their heads about, “How did we get here? If everyone knew that, how did we end up with a continuance today?”

“Ultimately, the question is whether their positions are at odds with one another, and there’s absolutely the potential of that,” Morris said, followed by something close listeners may take as a hint about what Donna Adelson may seek to offer in a plea.

“Stay tuned,” Morris said, quoting the line Cappleman herself offered less than one year ago immediately following Charlie’s conviction. “She said that in terms of who’s going to be prosecuted,” Morris continued. “I say that a little tongue in cheek, but you never know.”

Painful, but promising – from a fraught conflict to perhaps the potential for cooperation. The pursuit of justice for Dan continues.