Judge says prominent forensic accountant can’t be expert witness in fraud case because of conflict

A state judge on Tuesday disqualified prominent forensic accountant Gil Miller from testifying as an expert in the criminal trial of a Fountain Green father and son accused of defrauding investors in their company.

Third District Judge Paul Parker at the end of a hearing accepted defense attorney arguments that Miller had a conflict of interest because he had previously worked for Wendell and Allen Jacobson and their attorneys when the pair was under investigation by federal regulators.

As the accountant for the Jacobsons’ attorneys, Miller was exposed to information, documents, analysis and legal theories that should remain private and that disqualify him as a prosecution expert, attorneys for the Jacobsons argued in court papers.

The also contended that Miller had provided “patently false” information about his work for the Jacobsons during the Securities and Exchange Commission investigation.

“The judge made it clear that you don’t get to switch sides when the prior relationship with a client was a confidential one,” said Richard Van Wagoner, an attorney for Wendell Jacobson.

Amanda Mendenhall, a lawyer for Jacobson’s son Allen, said attorneys “must be able to rely on the confidentiality of the consultants they hire to assist in providing legal services to their clients. Without these protections, it is scary to think an expert could be privy to critical defense strategy and then turn around and deliver the information to a prosecuting agency.”

Defense attorneys believe the whole case is tainted by Miller’s participation with Utah Attorney General’s Office prosecutors and have asked that the prosecution team be removed from the case.

Prosecutors can appeal Parker’s decision. 

Parker said that while Miller could not offer opinions about the evidence as an expert, he could be a witness about the facts of the case.

Miller’s attorney, George Hofmann, pointed out that the judge said he was “not making any findings of any unethical or unprofessional conduct or that his conduct was lacking in any fashion.”

The U.S. Securities and Exchange Commission sued the Jacobsons and their company Management Solutions Inc. in federal court in December of 2011, contending that the company was insolvent and the Jacobsons were running a Ponzi scheme as they bought and sold apartment buildings.

U.S. District Judge Bruce Jenkins ruled, however, that MSI was not a Ponzi scheme as a court-appointed receiver had argued and the Jacobson’s settled the case without admitting wrongdoing. Investors are expected to recover most if not all of their funds.

The Jacobsons were charged in state court with 16 felony fraud-related counts alleging they failed to tell investors important information about how their monies were being handled.

A trial has not yet been scheduled. 

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