Judge denies indicted Delaware auditor’s bid to have taxpayers foot bill for $550-an-hour lawyer

Delaware auditor Kathy McGuiness stands in front of a Delaware government building

Prosecutors argue that the 'wealthy' McGuiness can afford her own private lawyer if she doesn't want a public defender. (State of Delaware)

Indicted Delaware auditor Kathy McGuiness won’t get her wish to have taxpayers foot the $550-an-hour bill for the defense lawyer she retained last month.

Instead McGuiness must settle for a public defender at no cost to her, or pay for her own private attorney to handle her felony corruption case.

The terse ruling by Superior Court President Judge Jan R. Jurden spells a quick end to the fee dispute between McGuiness and Attorney General Kathy Jennings.

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Jurden did not hold a hearing before settling the matter that emerged in the wake of the Oct. 11 grand jury indictment of McGuiness for theft, intimidation, official misconduct and other charges.

Instead the judge ruled in denying the auditor’s petition that a state law governing the issue “is clear and unambiguous.”

Prosecutors had argued that the law governing charges against a state employee only entitles McGuiness to a public defender.

Chief Deputy Attorney General Alexander S. Mackler wrote in court papers that the former pharmacy owner is “independently wealthy” and can afford to pay for her own defense if she’s not satisfied with what the state permits. Instead, McGuiness wanted the public to pay excessive fees to defend herself against allegations of “misusing the public funds she was elected to protect,” Mackler wrote.

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Steven P. Wood, a former longtime prosecutor hired by McGuiness, had argued in court papers that a Delaware Supreme Court rule permits state officials or employees to “petition for appointment of counsel” by a private attorney. He sought $550 an hour for himself — which he said is $100-an-hour less than his normal rate — and fees of no less than $325 an hour for other lawyers and paralegals at his firm, McCarter & English.

But with her ruling, Jurden clearly agreed with prosecutors that the only provision for taxpayer money to cover a private attorney would have been if the state Office of Defense Services had a conflict in representing McGuiness.

The judge wrote that she was assured by Chief Defender Kevin O’Connell that his office “does not have a conflict with representing the defendant.”

Prosecutors had also argued that if a conflict had existed, as often happens in criminal cases when more than one defendant qualifies for a public defender, a so-called private “conflict” attorney could only be paid $100 an hour — not the $550 an hour sought by McGuiness and Wood.

But with Jurden’s ruling, that issue is now moot.

Wood told WHYY News he had no comment on the ruling, and McGuiness did not respond to a request to discuss who would represent her going forward.

McGuiness is charged with two felonies and three misdemeanors for allegedly hiring her college-student daughter to a no-show job, giving her 2018 campaign consulting firm an illegal state contract, and intimidating employees who complained. If convicted of all counts, she faces zero to 13 years in prison.

McGuiness has pleaded not guilty and resisted calls by fellow Democrats and Republicans to step down or take a leave from the post she has held since January 2019. No court hearings are currently scheduled.

Wood had written in his motion that McGuiness is currently paying “somewhat” less than $550 an hour, but that rate was negotiated before she was indicted on Oct. 11.

Though he said McGuiness has “limited resources” from which to pay him, Mackler countered for the state that she is “independently wealthy by any standard.’’

Her state salary is $112,000. The pharmacist and entrepreneur who also owned a boot business loaned $75,000 to her 2018 campaign for auditor, Mackler wrote.

Mackler also estimated that the home McGuiness owns in Rehoboth Beach is “estimated to be worth between $2.2 million and $3.7 million.”

“Compensating a wealthy defendant’s law firm by several times the court’s standard fees,” Mackler wrote, “would metastasize the statutory entitlement into something absurd.”

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