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Case 1:20-cr-00330-PAE Document 314 Filed 07/12/21 Page2of7 Page 2 Moreover, undersigned counsel has never entered an appearance in this Court and does not represent Ms. Maxwell in connection with her upcoming trial. In fact, undersigned counsel and Ms. Maxwell’s trial team have been very careful to keep the representation separate. I have not been provided any of the trial discovery. The local rules do not and could not reach lawyers who do not represent a client (or witness) in a pending case because of the First Amendment. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991) (stating that “lawyers representing clients in pending cases may be regulated” by substantial prejudice standard and not heightened general First Amendment standard of clear danger) (emphasis added); id. at 1076 (“The regulation of attorneys’ speech is limited—it applies only to speech that is substantially likely to have a materially prejudicial effect ... applying equally to all attorneys participating in a pending case’) (emphasis added); see also United States v. Brown, 218 F.3d 415 (5th Cir. 2000) (discussing the factors to consider in entering a gag order for “trial participants’). The Government, however, argues that because Local Rule 23.1(a) states that lawyers “associated” with the “pending criminal litigation” are subject to the restrictions in local rules, the rule applies to undersigned counsel because of the appellate litigation in the Second Circuit regarding bail. As explained above, that litigation is concluded. The Government cites no authority for the proposition that the local rules would apply to a lawyer who previously entered an appearance in another court regarding litigation that has been concluded, nor could it since the Supreme Court has foreclosed such an expansive view of the ability to gag individuals not involved in the trial itself. Recognizing the weakness of its position, the Government states that because I asked for permission to bring my cell phone into the courtroom for the arraignment,! I must be associated with the litigation. But that example disproves the Government’s claim that I am associated with this case. It is true that I asked the Court for permission to bring my phone into the courtroom, but the Court denied the request and said that I would have to enter an appearance in order to do so, as only lawyers actually associated with the proceedings could obtain permission to enter with electronics. Because I had not entered an appearance for Ms. Maxwell in this Court, I was not given such permission. Finally, the Government itself has taken the position that not all lawyers who have a connection to this case are governed by the local rules. For example, Ms. Maxwell’s trial lawyers brought to the Government’s attention that one of the accuser’s 1 At that time, I represented Ms. Maxwell before the Second Circuit and it was a few days before the oral argument. This was the only proceeding before this Court that I have attended in person or on Zoom. DOJ-OGR-00004956