A federal judge planned to hear Thursday whether former North Carolina Sen. John Edwards would create problems for his upcoming trial by hiring lawyers who represented his mistress in a lawsuit over the couple's alleged sex tape.
The hearing scheduled in Greensboro aims to air whether lawyers Alan Duncan and Allison Van Laningham could use insider knowledge of Edwards' mistress Rielle Hunter at the former presidential candidate's trial beginning next month.
Duncan and Van Laningham represented Hunter in a lawsuit that ended last month with a settlement that ordered all copies of the tape destroyed.
Federal prosecutors have said they'll likely call Hunter as a witness at Edwards' trial on campaign finance charges that he used nearly $1 million from two wealthy donors to hide the pregnant Hunter as he sought the White House in 2008. He has pleaded not guilty.
"To whom would Mr. Duncan's and Ms. Van Laningham's allegiance lie? Their new client or the one they represented as recently as two weeks ago in a lawsuit seeking to enforce those very privacy rights?" federal prosecutors said in a court filing last week.
Because of their previous attorney-client relationship with Hunter, Duncan and Van Laningham might take it easy on her if they were questioning Hunter under oath, prosecutors said.
Duncan and Van Laningham never represented Hunter in advance of a 2009 deal with prosecutors or in the Edwards criminal case, the former presidential candidate's defense team wrote in a court filing Wednesday.
"Mr. Edwards and his defense team have concluded that there is no actual conflict of interest nor is there one that can be predicted to occur in the trial proceedings in this case," Duncan, Van Laningham and another of Edwards' lawyers, Abbe Lowell, wrote. Hunter's sex tape lawsuit "had little, if any, overlap with the disputed issues in this criminal action."
Prosecutors contend that if a defense attorney has an actual or potential conflict, the court must decide whether to disqualify the attorney or allow Edwards to sign off as knowing about the conflict.
Federal prosecutors previously alleged that Lowell had a potential conflict of interests because he had previously represented Fred Baron, the Edwards campaign finance chairman who provided much of the cash used to care for Hunter. Baron has since died, but Lowell had also represented his wife, Lisa Blue, last year before a grand jury investigating Edwards.
U.S. District Court Judge Catherine C. Eagles, who will oversee the Edwards trial, ruled that Lowell could stay on the defense team with the restriction he doesn't cross examine his former client if Blue is called to the witness stand.
Van Laningham said last week that Duncan knew Edwards from when the former presidential candidate practiced personal injury law. Edwards and Duncan represented parties on the opposite sides in lawsuits, she said.
Edwards' defense team has seen significant turnover since he was arrested in June.
Former White House Counsel Gregory Craig and former Associate White House Counsel Cliff Sloan, who began representing Edwards in March 2010, resigned in August.
Veteran Raleigh defense lawyer Wade Smith withdrew in October after federal prosecutors suggested he had a conflict of interest because he might be called to testify about a 2009 conversation he had with a financial adviser for Bunny Mellon. The 101-year-old socialite provided much of the money used to support Hunter.