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Defense: Ex-Sutherland Partner Incompetent to Stand Trial on Fraud Charges

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The federal prosecution of a former Sutherland Asbill & Brennan partner for allegedly stealing millions of dollars from a longtime Sutherland client will be delayed—at least temporarily—while a judge considers whether the 76-year-old attorney is incompetent to stand trial due to dementia.

U.S. Magistrate Judge Linda Walker on Friday stayed the criminal prosecution of Bennett Kight and in a teleconference on Tuesday directed federal prosecutors and Kight’s defense counsel to select a physician who will examine Kight and prepare a report on his mental capacity.

— (Related on ThinkAdvisor: If Advisors Get Dementia, What Happens to Their Clients?)

According to Kight’s defense team, a physician with whom Kight consulted last year said that an MRI of his brain revealed a “black hole”—caused by the apparent death of brain cells—in an area of the brain that affects judgment, memory, motivation, and personality. Over the objection of prosecutors, Walker granted a motion to seal the underlying medical records.

The federal indictment, handed down by a grand jury in Atlanta last year, accuses Kight of multiple counts of mail fraud stemming from allegations that he stole more than $2 million from a longtime client of the law firm, now known as Eversheds Sutherland, by orchestrating sham real estate transactions that siphoning funds from the client’s family trusts

The indictment accuses Kight of diverting funds in trust to pay a $500,000 mortgage on his Buckhead home and using another $1.5 million for personal investments.

While the indictment identifies Kight’s now former client only by the initials F.B., ongoing civil fraud suits in Fulton County’s State and Superior Courts naming Kight as a defendant claim that for years the lawyer plundered at least $60 million from trusts he oversaw for Frances Bunzl, the 97-year-old widow and heir of industrialist and philanthropist Walter Bunzl. When Walter Bunzl died in 1988, he was worth more than $130 million, according to the Fulton County cases. Court documents say the Sutherland firm first began representing Walter Bunzl and his companies in the 1940s after Bunzl and family members fled Austria Prior to World War II.

Kight’s lawyers requested a stay and a competency hearing last month. Dentons attorneys Barry Armstrong and Rachel Cannon contend that after suffering a brain hemorrhage in January 2008, Kight’s mental capacity “declined progressively” and that he was diagnosed with dementia in December. For at least four years after the 2008 brain bleed, Kight continued to manage the Bunzl trusts, according to Fulton County court records.

The defense team also told the court that Kight fell in December, sustaining a second brain bleed and three broken ribs that last month resulted in a seizure and a trip to a hospital emergency room. Kight, they said, also now suffers from a language impairment known as aphasia.

Kight’s attorneys have asked the court to seal the underlying medical records, asserting that Kight’s medical and mental health history is “confidential and sensitive” and releasing the records would violate his privacy.

That request drew objections from federal prosecutors who counter that the press and the public have a qualified First Amendment right of access to criminal proceedings and a common law right of access to judicial records.

Prosecutors also questioned why Kight would publicly claim “that his ‘dementia’ has ‘now progressed’ into ‘aphasia,’ and that his ‘altered mental state’ and ‘delirium’ preclude him from assisting counsel” but then seal the exhibits that would support those claims.

Neither of the exhibits Kight’s lawyers have submitted and sought to seal “reflects any mental symptoms that [Kight] may or may not be exhibiting, the results of any mental acuity tests (assuming any were even performed), or any physician’s notes or comments specific to [Kight's alleged mental conditions," wrote Assistant U.S. Attorney Douglas Gilfillan.

Instead, prosecutors suggested that sealing the records "serves only to conceal that [Kight's] public claims lack support” and “fosters a public misimpression that [Kight] has submitted medical records supporting his assertion that he suffers chronic dementia, aphasia, and delirium.”

Walker granted Kight’s motion to seal. But, the magistrate judge did allow all parties and the court to refer to, describe, incorporate or quote from the exhibits in court filings without sealing or redacting them.

— Read Your 7-step guide to working with the cognitively impaired on ThinkAdvisor.