Two Oregon attorneys came to the refuge at least once and inventoried which federal laws were being broken, while militant leaders ordered new recruits to engage in illegal activity.
While Ammon Bundy was teaching others about his interpretation of the Constitution, lawyers were schooling him about potential violations of federal laws as the militant leader led the occupation at the Malheur National Wildlife Refuge.
Both Ammon Bundy and his brother Ryan told several journalists, including OPB reporters, that an Oregon-based law firm was asking to represent the men.
On Jan. 7, in an interview with OPB, Ryan Bundy said the militants didn’t need lawyers, because he didn’t believe the group had broken any laws.
“But some are coming up to talk with us,” Bundy said.
On Jan. 9, Lissa Casey of the Arnold Law Firm tweeted that she and Bryan Boender, a fellow attorney from the Eugene Based Arnold Law Firm, met with some “very nice men” at the Malheur National Wildlife Refuge.
“Most dangerous part of the trip: [Bryan Boender] driving snowy pass,” Casey tweeted.
On Jan. 14, Ammon Bundy confirmed he met with lawyers over the previous weekend; however, he didn’t name them.
“I did, and they had their suggestions, but look, we’re not breaking any laws,” Bundy said. “They made a list and shared it with us and we’ll keep that in mind, but again, the federal government has no authority on this land.”
Federal government officials disagree, and indicted Ammon Bundy along with fifteen others for keeping federal employees from “discharging their duties.”
To defend him against those charges, Bundy retained the Arnold Law Firm.
That retention could potentially be a violation of Oregon State Bar guidelines.
Rules Against Soliciting Clients
Lissa Casey and Mike Arnold, the head of the Arnold Law Firm, confirmed that Ammon Bundy did not contact the firm, but rather attorneys for the firm went to meet the militants face-to-face.
"I felt duty-bound to give pro bono advice to the protesters out there given that they were practicing civil disobedience and didn't appear to have any legal counsel," Casey told OPB in a written statement.
That action could potentially violate Oregon bar rules, specifically, section 7.3. Portland criminal attorney Janet Hoffman said that the rule prohibits attorneys from soliciting clients by phone, electronic contact or in person.
"It kind of gives clients some distance from the proverbial image of like ambulance chasing — that you're calling people chasing after one catastrophe after another,” Hoffman said.
The rule specifically prohibits solicitation if one of the driving motivations for the attorney is financial gain.
In an email to OPB, Casey repeatedly emphasized that any legal advice given to Bundy and other militants was offered pro bono. But now that an indictment has been issued against Bundy and 15 others, Casey said the firm is charging for its services.
“We expect the litigation to be rather lengthy and expensive so he asked us to set him up with the crowd sourcing page to assist in raising funds,” Casey wrote.
As of Friday, Feb. 5, that page had raised about $27,000 of its $100,000 goal.
While representing Ammon Bundy could raise the profile of the Arnold Law Firm and potentially bring more business to the firm, a prominent legal professor said that shouldn’t be considered when looking at possible ethics violations.
“That wouldn’t be a factor here, because it’s not money they’re going to make from [this] client,” said John Strait, an associate professor at the Seattle University School of Law.
One of the key questions is when Ammon Bundy became a client of the Arnold Law Firm, and whether the firm approached him to solicit his business. Casey said she and Boender drove to the refuge to advise the armed militants as they occupied the refuge.
“We drove the five hours over there and offered our free legal services about the occupation itself while they were doing their sit-in protest at the refuge,” said Casey.
She declined to comment about the specific conversations she had with Ammon Bundy, as did Managing Partner Mike Arnold. He cited attorney-client privilege as the reason for not commenting about the conversations.
Casey, however, told OPB that Bundy was not yet a client at the time she and Boender visited.
“Ammon Bundy retained us the morning of his initial appearance,” she wrote, meaning it’s possible privilege was not established between the firm and Ammon Bundy until that point.
Militant Leaders Ordered Young, New Recruits to Break Laws
Another question hanging over the case is whether attorneys advised militant leaders to pin certain crimes on younger militants and new recruits.
Before he was arrested, Ryan Bundy said attorneys gave him and other occupation leaders lists of laws to steer clear of breaking.
Ammon Bundy also said that attorneys had inventoried potential legal violations, and had given the militant leaders a list of laws they believed were being broken.
An OPB reporter saw militant leader Ryan Payne, who headed the security team at the refuge before he was arrested, giving orders to young militants.
Some of them had arrived at the refuge hours before and were new to the group.
Payne was also seen stopping now deceased militant Robert “LaVoy” Finicum from getting into a white, federally owned truck.
“You don’t do that, have them do that,” Payne said as he pointed a new arrival who went by the name of “Joe.”
An OPB reporter also witnessed Ammon Bundy telling television journalists that he would not drive federally owned vehicles, use federal computers, or engage in other illegal activities that other, rank-and-file, militants had done.
Ryan Bundy was asked about his brother’s comments, and acknowledged militant leaders would not engage in those visible crimes, because younger militants and newer recruits were less likely to be prosecuted.
“The government’s going to leave those guys alone,” Ryan Bundy said.
Two of the last holdouts on the refuge — David Fry and Sandy Anderson — confirmed to OPB that they, too, saw militant leaders order those outside the inner circle to break laws, like using government computers, driving federal vehicles, or plowing new roads on the refuge.
But in one of his last conversations before the FBI severed militants’ communications, holdout Sean Anderson said those orders were not given with the intent of shifting criminal responsibility to new recruits. Anderson added that he “trusted Ammon and Ryan” with his life.
A source close to Ammon Bundy, speaking on the condition of anonymity because of the ongoing federal criminal case, said a list of crimes to avoid might have been compiled. However, the person suggested that interloping lawyers from out of state had created and distributed that inventory to militant leaders.
Lissa Casey didn’t respond directly to that inquiry. In her statement to OPB, she wrote, “it appeared that some out-of-town lawyers arrived to help as well.”
The only lawyer from out of state OPB could identify as visiting the compound before the arrest of Ammon and Ryan Bundy is Todd Macfarlane. He represents the family of LaVoy Finicum.
In a statement to OPB, Macfarlane wrote, “I have never represented the Bundys and have never given them any legal advice.”
Law professor John Strait said that if a lawyer advised the Bundys on “how to break the law,” that would be an ethical violation.
“If the lawyer counsels what is or isn’t against the law, that’s their job,” Strait said. “But the lawyer can’t help by saying, ‘Here’s how you commit the crimes smarter.’”
Editors Note: In an earlier version of the story, attorney Bryan Boender's name was spelled incorrectly.