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Case 1:20-cr-00330-PAE Document 204-3 Filed 04/16/21 Page 303 of 348 attend the hearing. In his affidavit, Edwards asserted, “[T]here was no possible way I could have believed that this state plea could affect the federal investigation or the rights of my clients in that federal investigation.” In Wild, the Eleventh Circuit panel stated that the government “seemingly” deferred to Epstein’s attorneys’ requests not to notify the victims about the NPA, and that in sending the January and May 2008 FBI letters, the government’s efforts “seem to have graduated from passive nondisclosure to (or at least close to) active misrepresentation.”**’ Although both the appellate court and district court focused on the FBI’s letters for which OPR concludes that neither Villafafia, Sloman, nor Acosta was responsible, OPR considered the courts’ analyses in evaluating whether similar representations Villafafia made to the victims whom she interviewed on January 31 and February 1, 2008, and to Edwards, were misleading. Therefore, OPR considered whether Villafafia’s statements that the matter was “under investigation” and her failure to inform all of the victims whom she interviewed or Edwards about the NPA violated FRPC 4-4.1(a), 4-8.4(c), or 4-8.4(d). FRPC 4-4.1(a) prohibits an attorney from “knowingly mak[ing] a false statement of material fact or law to a third person” during the representation of a client. The FRPC defines “knowingly” as “denot[ing] actual knowledge of the fact in question” and states that such knowledge may be “inferred from circumstances.”°* The comment to FRPC 4-4.1 states that “Tm |isrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements.” The comment references FRPC 4-8.4 “[flor dishonest conduct that does not amount to a false statement.” Like FRPC 4-4.1(a), Rule 4-8.4(c) requires evidence that the attorney knew the statement in question was false. Under FRPC 4-8.4(c), the intent requirement can be satisfied “merely by showing that the conduct was deliberate or knowing” and the “motive underlying the lawyer’s conduct is not determinative; instead the issue is whether he or she purposefully acted.”**? In Feinberg, the court concluded that the prosecutor violated FRPC 4-4.1 and 4-8.4(c) and (d) by deliberately making untruthful statements to a defense attorney, despite evidence that the prosecutor intended to help the defendant by making the statements.*“° In this case, Villafafia was fully aware of the signed NPA when she interviewed the victims on January 31 and February 1, 2008, and when she spoke to Edwards on the telephone, but she did not inform them specifically of the signed NPA. The question is whether this omission amounted to a knowing false statement or misrepresentation. One difficulty is determining what Villafafia actually said during conversations that participants were asked to recall many years later. With respect to three of the victims whom she interviewed in January and February 2008, Villafafia contended that she discussed the agreement with them, even if she did not specifically refer to it as the NPA or discuss all of its terms, and as BT Wild, 955 F.3d at 1199-1200. 438 See R. Regulating Fla. Bar 4-Preamble: A Lawyer’s Responsibilities, “Terminology.” Bo Florida Bar v. Schwartz, 284 So. 3d 393, 396 (Fla. 2019) (citing Florida Bar v. Berthiaume, 78 So. 3d 503, 510 n.2 (Fla. 2011); Florida Bar v. Riggs, 944 So. 2d 167, 171 (Fla. 2006); Florida Bar v. Smith, 866 So. 2d 41, 46 (Fla. 2004)). 440 Florida Bar v. Feinberg, 760 So. 2d 933, 937-38 (Fla. 2000). 277 DOJ-OGR-00003479