Clarifying the Defense Fund Issues  – Defenders of  George Zimmerman and his family (Team Freedom) have split based on their opinion of Mark O’Mara.

On one side it seems there are folks holding strong regard for the job O’Mara is doing.  And yes, I will concede their refusal to at least admit the mistakes under the auspices of infallible belief in O’Mara’s skill set has been considerably annoying to me personally.   It just seems intellectually dishonest at the most absurd levels.
On the other side people are not feeling so good about O’Mara, because they view the input/outcome equation as the primary tool for evaluating performance.   Does his representation, and the actual known actions he has taken, help or hurt George Zimmerman?
In my opinion O’Mara has substantively hurt his client, so I guess you would consider me in group #2.    Consequently I turned my personal research into “why” has he compromised his client, and why does he continue to do so?   I wanted to know his “motivation” for compromise per se’ and in doing so can that help identify intent.
I guess if you hold opinion that O’Mara has not compromised his client, then this research is not valuable to you and you just might as well quit reading right here.

There are many layers to the explanation of O’Mara’s actions, many layers.   From the outset of his expectations,  or the “what’s-in-it-for-me” factors; to the worry, fear and professional backlash from his peers, many of which are on the opposition.  Along with other angles I’m intentionally skipping.
For the sake of exhaustive text, I’m just going to explain the “indigent” filing and issues around the financial status of George Zimmerman and his defense through the prism of O’Mara’s intent.  Let me use an analogy:

You are charged with felony and need a lawyer.   Personally you are broke, and you live paycheck to paycheck.   But people care about you and do not value you on the size of your bank account.   You are arrested.

But, you have a rich crazy uncle ready to pay your defense.

The attorney(s) you select to represent you say, “ignore the rich uncle fund”.

What we will do is file indigent paperwork and then any special witnesses we need to call in your defense can have their costs subsidized by taxpayers.   This is a common, albeit a weird, practice.

Preparation and in-court costs for the types of witnesses needed are anticipated to  cost  around $600/hr.  If we file indigent status the state will cover the first $400/hr of each witness, leaving the actual cost to us, your defense, from private money around $200/hr.

Think of it like using taxpayer money as a defense subsidy of sorts available based on the initial financial disclosures during a bond hearing.

That is $400 more per witness hour left in the crazy uncle fund when the trial is over and the attorney then gets to bill said Crazy Uncle Fund.   Get it?   The pro-bono ain’t pro-bono, nudge, nudge, wink wink, sorta.

Nothing actually illegal at play here because you, the client, are actually broke, and you can honestly fill out the financial disclosures with said indigent status honestly represented.
In a case like George Zimmerman there can be say $500k in the defense fund.   If the state is reimbursing the defense for the first $400 of every hour, well that just leaves more in the fund at the end.   In the end the billable hours are tallied, the attorney presents his bill, and the check is written out to pay him/her.  Yep, the attorney, in this case, Mark O’Mara gets paid more based on the bill out, because the defense fund has retained a higher balance.
See how this works.?
When you replace the Crazy Uncle Fund with a George Zimmerman Defense fund you get the concept.   Except this one is different because the fund has actually now been structurally established by the attorney on behalf of his client.

As previously reported in the news:    George Zimmerman Fed-x’s the pay pal check from the defense fund balances to Mark O’Mara on April 25th along with his passport.   This effectively wiped out any personal funds for defense.   O’Mara told Judge Lester he holds the Fed-x receipt.

BEAR WITH ME ……   Going deep.    Generally client defense funds are kept distinct and separated from the operating funds of the lawyers.    As it was explained to me, traditionally the money would be put in trust through an IOTA account (Interest on Trust Account), where every bit of money must be accounted for in and out.   The Florida Bar gets the interest and the Bank reports to the Bar and the Lawyer.

[Generally]   All money goes in to the account. The Tax ID on the account is the Fla. Bar tax id.  The interest goes to the Bar. No money can be taken out by the Lawyer to the firm operating account until it is present and earned.
Some checks are considered same as cash, cashiers checks, other lawyers checks, etc.
If the bank sees any irregularities it reports them to the Bar. Accounting is very strict and co-mingling forbidden. In some cases client specific trust accounts are set up.
The Bar is not party to these type accounts. But they are usually for very large clients who want the interest.
The Bar set up these accounts because of so many complaints and problems with the Lawyers.  The bank reports to the Bar. The Bar would sanction the Lawyer if it was fooled with. The account is separate from the firms operating account. As money is earned and documented it is taken from the IOTA in to the operating account.

But this was not what Mark O’Mara did with the defense fund.  Mark O’Mara applied to the Florida Division of Consumer Services to get authorization to set up a donation account administered by his personally chosen former IRS agent, CPA.
O’Mara applied for authorization from the IRS to set up the account in it’s current form.  He was quick to get it out of his office trust fund accounts.  He hired a third-party administrator to oversee/control the funds.
O’Mara specifically said that he doesn’t have access to the funds.  However, that does not mean he cannot send a bill to the personally chosen administrator, and get immediate payment for his billings.

*Note* on the flip side George Zimmerman does not have the same direct bill ability for his needs.  His expenses come from the defense fund via Mark O’Mara who approves and processes any living expense allowance.

It gets interesting because this aspect raises the antenna of the Florida Bar who are not comfortable with the set-up O’Mara has in place.   #1) His structure is highly dependent on the integrity of the attorney with little to no checks and balances on activity.   AND more importantly #2) the bar has no oversight nor does it get the “interest” from the account as would normally be the case with the IOTA set up.
The oversight of the Florida BAR is conspicuously absent.   And from what I am able to determine the Bar has sent inquiry in this regard to O’Mara’s law firm.
So that is the “who”, the “how”,  and the “what” regarding the Defense fund.   The “why” is a far more difficult question to answer.

The the bottom line is – regardless of Mark O’Mara’s protestations to the contrary, he was fully aware of a Legal Defense Fund prior to April 20th bond hearing.   Also, Mark O’Mara specifically instructed his clients George and Shellie Zimmerman, to disregard any financial disclosures on the Defense Fund at the time of the filling out of their financial affidavit based on the principle outlined above in the initial example.
These facts are going to come out because they are the Truth.  You simply cannot hide the Truth forever, without building a bigger and bigger lie.     Remember, apparently the Florida Bar is now interested and there are specific people who can validate – who knew what and when,  again the timeline:

• The defense fund was set up by George on Saturday 4/7/12.
• On Monday April 9th Mark Nejame and Mark O’Mara  discussed the referral, and again on Tue April 10th.   (Not yet retained)
• George Zimmerman was arrested on Wed April 11th the official first day of O’Mara representation.  At the time George was being arrested, Mark O’Mara was in Sanford giving media interviews etc.   So we fully understand the substance of the retention took place via phone.
• As the Miami Herald is now reporting between the hiring date of the 11th and the bond hearing date of the 20th, O’Mara was told specifically about the defense fund on at least one occasion, recorded April 14th.

[My spidey senses tell me George Zimmerman mentioned the existence of the defense fund when he retained O’Mara.  Perhaps not the amount, after all he only had the account for his defense fund set up for around three days prior to arrest,  but more than likely the existence of it was discussed.   Only George actually knows that, and certainly I cannot prove or disprove that aspect.   However,….. ]

MIAMI HERALD – […]  In a phone call recorded April 14 between Zimmerman and a friend named Scott, the two discuss the new defense lawyer and the attorney’s vision for an upcoming bond hearing. Zimmerman tells his friend that he told his new attorney, Mark O’Mara, that he tried to transfer $37,000 from his online legal defense fund site, but could not complete the transaction because of PayPal rules that prevent transfers larger than $10,000.

He twice mentions telling O’Mara about the money.    

“He said he’s going to have me declared indigent,” Zimmerman told his friend. “I told him I didn’t think that would be possible, because there was one sizable transfer I tried to make. It got stopped. You know, $37. He said: ‘Well that doesn’t matter. Right now you’re not working. You’re not providing an income for your family. You’re probably not going to be employable for the rest of your life.’”

At one point the friend asks whether O’Mara knew “the volume” of the donations that came into the PayPal account Zimmerman had set up to solicit donations from the public. Zimmerman said O’Mara knew about the attempted transfer of $37,000, but not any more than that.  (read more)

Mark Nejame knew about the defense fund and discussed it on TV 4/9.  Mark Nejame and Mark O’Mara talked the case out 4/9 and 4/10.   George Zimmerman personally told him 4/14, six days prior to the bond hearing, the bond hearing was not until 4/20.
So O’Mara had ten days from the time of retention to determine indigent filing status.  And according to the tapes he filed a full six days after Zimmerman told him of the “existence”, forget amounts for a moment, just knowledge of the accounts’ mere existence has been denied previously by O’Mara.   That cannot simply be considered plausible or truthful.
Mr. O’Mara is personable and his legal approach has been effective in many ways.  But, those financial disclosure forms and the indigent filing status was his responsibility alone to oversee as a lawyer.   George Zimmerman is not held to a standard of legal knowledge, or at least he shouldn’t be.  That was simply Mark O’Mara’s job and look at the consequences to such poor representation.
It was a strategic decision not to tell the court.   An O’Mara decision. Not malicious in intention, just strategic.   The filing of indigent status slows the defense fund burn rate and provides the opportunity for more subsidized deferral of costs.
And generally it would have gone unnoticed were it not for he prosecution reviewing all those audio tapes looking for something, anything, to hang George Zimmerman out to dry on.   Mr. O’Mara was obviously not expecting that depth of discovery during incarceration.
It was not merely ineptitude that let O’Mara watch George Zimmerman’s credibility hang out there to flap in the breeze.   It was fear.
Once Mark O’Mara realized the jailhouse tapes were evidence against his client regarding financial disclosures.   He quickly recognized the risk to himself for false financial statements presented to the court.    Fear brought on by a revelation of omission.  That omission was simply not the clients fault.  It appears he was following instruction of his attorney.

And look at the consequences from these decisions…..