Newberry Observer/WKDK stories in order, starting Aug. 3, 2011

FOIA Lawsuit Filed related to James Brown’s $100 million music empire


By Sue Summer, 803-276-6197 or 803-271-3500

3 Aug. 2011

From the WKDK.com website

suedsummer@gmail.com



James Brown’s $100 million music empire is subject of Newberry FOIA lawsuit

A complaint filed in Newberry County on Wednesday asks Attorney General Alan Wilson to release documents related to the value of James Brown’s international music empire, widely reported to be worth about $100 million.

In the complaint, Plaintiff Adele Pope, one of Brown’s former fiduciaries and a local attorney, asserts that the documents she has requested under the Freedom of Information Act (FOIA) support the $85 million value that she and Aiken attorney Robert Buchanan assigned to Brown’s assets--$100 million less a debt to TIAA.

According to the complaint, Brown’s current trustee, Russell Bauknight, recently filed sworn documents asserting that Brown’s music empire was worth only $4.7 million when “The Godfather of Soul” died on Christmas Day, 2006.

The complaint also says Attorney-General Wilson, through an assistant, has supported Bauknight’s $4.7 million valuation.

Since Brown died, estimates of the value of his assets have ranged from $200 million in a 2007 securities prospectus to Bauknight’s mere $4.7 million.

According to the complaint, Pope’s repeated requests for documents have been denied for months, and on July 15, Bauknight, through his attorney, threatened Pope with legal action and sanctions if she continues to make FOIA requests.

In late 2007 an Aiken County court appointed Pope and Buchanan to manage Brown’s estate and the trust he created in 2000. In 2009 Pope and Buchanan were replaced by Bauknight in a settlement forged by McMaster, now on appeal.

Bauknight now manages Brown’s estate and trust, as well as the new trust created by McMaster--the James Brown Legacy Trust.

The requested documents include a copy of the Legacy Trust, as well as any communications during the last year between the Attorney General’s office and Bauknight related to the value of Brown’s assets.

In the complaint filed Wednesday, Pope’s attorney, Adam Silvernail of Columbia, argues that Legacy Trust documents should be released and the Legacy Trust should be declared a public body under FOIA because the Legacy Trust is under the direct control of the Attorney General, and its funds are to be overseen by the AG’s office. The AG also appoints its trustee, who serves at the AG’s pleasure.

In 2010 McMaster and Bauknight filed suit against Pope and Buchanan, alleging that they had overvalued Brown’s assets by reporting them at $85 million.

In an affidavit attached to the filing, Pope asserts that one motive for McMaster’s 2010 suit was that she has not signed a document agreeing not to criticize McMaster or the changes he made to Brown’s estate plan. Pope asserts that warning clients who have private foundations about McMaster’s actions would be critical to her law practice.

The complaint argues that Pope has a right to view the documents, which “created the vehicle used by AG McMaster and Bauknight to pursue collection of tens of millions of dollars from Plaintiff (Pope).”

When asked to comment, Silvernail said, “I cannot comment due to ongoing litigation, but my client’s position is well stated in both this case and in Case Number 2010-CP-40-4900.”































Second James Brown FOIA Suit Seeks McMaster Contingency Fee Agreements With Outside Attorneys; AG Wilson Refuses to “Give It up, Turn It Aloose”

By Sue Summer

803-276-6197 or 803-271-3500

10 August 2011



A second Freedom of Information Act (FOIA) lawsuit has been filed within as many weeks related to the $100 million dollar music empire of entertainment icon James Brown.

On Wednesday plaintiff Adele Pope, a Newberry resident, challenged Attorney General Alan Wilson’s refusal to release a special counsel agreement between former Attorney General Henry McMaster and Columbia attorney Ken Wingate.

Pope also seeks a document by which McMaster authorized Russell Bauknight, current James Brown trustee, to act on behalf of the State of South Carolina through the Attorney General.

According to the complaint, on May 19, 2010, AG McMaster and Bauknight, both acting for the State, sued Pope and Aiken attorney Robert Buchanan for tens of millions of dollars, falsely accusing them of improper acts during their management of James Brown’s irrevocable trust and his estate from late 2007 to May 2009.

Wingate’s firm serves as sole counsel for the State, Bauknight, and certain private plaintiffs in the lawsuit against Pope and Buchanan.

Filed with Pope’s FOIA complaint on Wednesday were two of the approximately eight agreements for retaining special counsel signed by Attorney General McMaster between 2003 and 2011.

According to a statement by McMaster on Oct 2, 2009, the special counsel arrangement is rarely used by the State, and only where due to “size, complexity and state government’s budget constraints,” it is necessary to appoint special counsel to work with attorneys from the attorney general’s office.

According to McMaster’s statement, all such cases were on a contingency fee basis. “If special counsel loses, they are paid nothing. If they win, the corporate defendant pays their fees and expenses.”

On Aug. 5, AG Wilson denied Pope’s July 19, 2011, FOIA request for the Wingate firm’s retention agreement that authorized the suit against her. The undisclosed agreement authorized Wingate’s firm to sue Pope and Buchanan and authorized Bauknight to speak on behalf of the AG of South Carolina in the lawsuit.

Supporting her assertion that Wilson should have released the documents under FOIA, Pope attached as exhibits two retention agreements for special counsel in suits against Eli Lilly and Co., manufacturer of prescription drug Zyprexa, and AstroZeneca Pharmaceuticals LP, manufacturer of Seroquel.

Both retention agreements specifically state “This agreement shall be considered a public document.”

In the complaint Pope also identified ways in which the case against Pope and Buchanan was different from other cases in which the State has used special counsel, including: the failure of the attorney general to participate in or oversee case 2010-CP-40-4900; Bauknight’s purporting to act on behalf of the State; and the state’s sharing a single private law firm with approximately ten (10) private plaintiffs in the same suit.

The complaint and an affidavit filed with the complaint assert that the retention agreement, authorization for Bauknight, and related public documents will show that McMaster, his senior assistant Havird “Sonny” Jones, and Bauknight, all acting for the state, have violated their duty to the public.

McMaster’s 2009 statement also asserts that special counsel always work with attorneys from the AG’s office, and he pledged that he would accept no contributions to his campaigns from special counsel. In the case brought by Wingate, however, the AG did not sign the complaint, and no attorney from the AG’s office participated as counsel in the case. Also, within weeks after the complaint was filed against Pope and Buchanan, a member of special counsel’s law firm made a $1,000 contribution to McMaster’s campaign.

The complaint filed Wednesday asserts that McMaster and Bauknight sued Pope and Buchanan because they would not abandon a proper appeal of McMaster’s destruction of James Brown’s estate plan. Instead of following Brown’s estate plan, McMaster agreed to transfer $50 million that Brown intended to be used for scholarships for needy and deserving students to relatives and claimed-relatives that Brown had intentionally disinherited from his $100 million music empire.

In the first FOIA suit, filed last week, documents were sought to determine whether Brown’s music empire was valued at about $100 million ($85 million after a TIAA debt), as asserted by all trustees prior to Bauknight, or the recently asserted $4.7 million assigned by Bauknight.















Expedited Hearing Sought In James Brown FOIA Suit

2 Sept. 2011

Sue Summer, 803-276-6197



The plaintiff in two S.C. Freedom of Information Act (FOIA) lawsuits related to James Brown’s $100 million music empire has asked the Court for an expedited hearing to compel current Attorney General Alan Wilson to release the contingency fee contract of his predecessor, Henry McMaster, with Columbia attorney Kenneth Wingate.

A motion and affidavit, filed Sept. 1 in Newberry on behalf of Brown’s former trustee Adele Pope, assert that Wilson’s refusal to release the McMaster contingency fee contract and other public documents is covering up wrongdoing by McMaster, the AG’s office, and Columbia accountant, Russell Bauknight, who replaced Pope and Aiken attorney Robert Buchanan as Brown’s trustees.

Pope and Buchanan served as James Brown’s court-appointed trustees from late 2007 to 2009.

According to the affidavit, Bauknight also serves at Attorney General Wilson’s pleasure under a “Legacy Trust” that McMaster and Bauknight created from funds diverted from Brown’s estate and trust when McMaster took over Brown’s estate and $80 million “I Feel Good” foundation.

According to Pope’s affidavit, McMaster’s contingency fee contract with Wingate’s firm is a public document, and FOIA requires its release.

Adam Silvernail, attorney for Pope, said, “I don’t understand what’s complicated here. The documents are public. If Attorney General Wilson is not hiding something, then he should release them.”

Pope’s affidavit asserts her FOIA request will show whether McMaster’s contract is illegal, and how much State officials participated in Bauknight’s “outrageous” assertion to the Internal Revenue Service and the courts that the value of Brown’s world-wide music empire—with royalties to over 800 songs—is less than $4.7 million.

Filings in the FOIA case include McMaster’s contracts with other outside contingency fee counsel. These contracts state that they are public documents and outside counsel must comply with the FOIA, but Wingate has refused to release the contract.

After being criticized by the Wall Street Journal for accepting large donations from outside counsel, McMaster wrote the Journal and asserted that his contracts, known as a “Special Counsel Retention Agreement,” had been “heralded nation-wide as a pro-business model by tort reform groups.”

Pope and Newberry resident Jeff Smith are working on a scholarly article on private foundations that explains how McMaster’s office destroyed Brown’s copyrights to more than 800 songs. The article is entitled, “Attorneys General, Heirs and Musical Millionaires: Why the James Brown ‘I Feel Good’ Trust Doesn’t...”

The Attorney General’s office spokesman, Mark Plowden, could not be reached for comment on Friday morning.













































AG Wilson Stalls on Release of McMaster Contingency Fee Contract

2 Sept. 2011

Sue Summer, 803-276-6197



In a letter received Friday morning at the Newberry Courthouse, State Attorney General Alan Wilson continues to deny the release of documents first requested under the State Freedom of Information Act (FOIA) on July 19 by Newberry resident Adele Pope.

Although the Attorney General (AG) is a statewide officer, a letter from J. Emory Smith Jr., assistant deputy AG, said he plans to argue that Pope’s FOIA lawsuit was filed in an improper venue-- that Newberry is not the proper place to hear the case.

When reached for comment Friday morning, Mrs. Pope’s attorney, Adam Silvernail of Columbia, said Mrs. Pope’s response to any motion filed by the AG will be to the Court. Speaking generally, however, he said that he is researching the issue but is currently unaware of any reported case in which an AG has requested change of venue in a FOIA case.

Pope’s motion, filed Thursday afternoon, requests an expedited hearing in the FOIA case to obtain the contract by which former AG Henry McMaster authorized Columbia attorney Kenneth Wingate and accountant Russell Bauknight to sue Pope and Aiken attorney Robert Buchanan for tens of millions of dollars of alleged damage to James Brown’s music empire.

The letter in response to Pope’s motion was received less than 24 hours later.

Pope’s filings assert that McMaster’s allegations in the suit against her were false, and that the public documents she seeks under the FOIA will show wrongdoing by Bauknight and AG McMaster’s office.

In every other known case, contingency fee contracts have included a statement that the contract was a public document and available under the FOIA. In the James Brown case, a copy of the contract has not been made available for review.

Other documents sought by Pope in a separate FOIA lawsuit relate to Bauknight’s $4.7 million dollar valuation of Brown’s world-wide music empire, widely reported in national publications at $100 million.

Pope and Aiken attorney Robert Buchanan were personal representatives and trustees under Brown’s estate plan from late 2007 to 2009.

Smith would not comment and referred questions to Mark Plowden, who did not return calls Friday morning.



Former James Brown Trustee Fights AG Wilson’s Attempt to Dismiss FOIA Suit

Sue Summer, 803-276-6197

6 Sept. 2011



Newberry resident Adele Pope, former trustee of James Brown’s music empire, responded on Tuesday to a motion made Friday by State Attorney General Alan Wilson.

Wilson’s motion seeks to dismiss Pope’s Aug. 3 Freedom of Information Act (FOIA) lawsuit to obtain the State’s information about the value of James Brown’s music empire, widely reported to be valued at $100 million.

Wilson’s motion asserts that the FOIA suit should be dismissed because Newberry is not the proper venue and because another James Brown case is pending in Richland County.

Pope’s return to the attempted dismissal asserts that Wilson’s motion is without merit and that he is stalling to cover up wrongdoing by former AG Henry McMaster, senior assistant Sonny Jones, and Columbia accountant Russell Bauknight.

Bauknight replaced Pope and Aiken attorney Robert Buchanan, who served as court-appointed fiduciaries of Brown’s estate and irrevocable trust from late 2007 to 2009. Bauknight also serves as trustee of the “Legacy Trust,” created by McMaster in late 2008 or early 2009.

“It is unacceptable for Attorney General Wilson, who tells public officials that ‘sunlight is essential to the survival our representative democracy,’ to stall on his own compliance with valid FOIA requests,” said Pope’s attorney, Adam Silvernail.

Silvernail quotes Wilson from his letter in the Freedom of Information Act brochure for public officials, published by the S.C. Press Association.

In her Aug. 3 FOIA lawsuit, Pope also seeks the release of a copy of the Legacy Trust created by McMaster and Bauknight to hold Brown’s assets under a proposed settlement.

Buchanan and Pope have appealed a May 26 Circuit Court order that gave McMaster control of Brown’s worldwide music empire.

Pope’s return asserts that neither the pending Supreme Court appeal nor any of the more than 20 James Brown cases should give Wilson the authority to deny or delay her FOIA rights.

According to Pope’s affidavit, the FOIA suit seeks documents to explain why the State has endorsed Bauknight’s “outrageous” $4.7 million valuation of Brown’s $100 million dollar worldwide music empire.

Pope’s affidavit, accompanying the return, asserts that Bauknight told the IRS in December 2010 that the music empire was worth only $4.7 million at the same time he received documents confirming Brown’s royalties had earned $5.4 million for the year 2010 alone.

According to the affidavit, Bauknight and Wilson asked the Supreme Court to accept the $4.7 million as the true value of Brown’s music empire as part of the pending appeal of McMaster’s settlement. In July, however, the Supreme Court declined to supplement the appeal record with Bauknight’s $4.7 million value.

Pope’s filing claims that Wilson has refused to release the documents that would show improper acts by members of the Attorney General’s office, the previous attorney General and/or a person purporting to act as an agent of the State.

Pope’s affidavit said, “Whether or not the Supreme Court allows McMaster to destroy what should have been South Carolina’s largest private foundation dedicated solely for scholarships for needy and deserving students—about $80 million—I believe I still have FOIA rights.”

Columbia attorney A. Camden Lewis, named as attorney for the Legacy Trust in Wilson’s motion, could not be reached for comment on Tuesday afternoon.































AG Wilson and James Brown Trustee Double Efforts to Prevent Release of Music Empire Documents

13 September 2011 Contact: Sue Summer, 803-276-6197



On Friday afternoon, a second attempt was made to prevent former James Brown trustee Adele Pope from obtaining public documents related to the value of Brown’s $100 million music empire and to a trust created by former Attorney General (AG) Henry McMaster and Columbia CPA Russell Bauknight.

Bauknight’s counsel, Camden Lewis of Columbia, mirrored current AG Alan Wilson’s attempt to dismiss Pope’s Aug. 3 Freedom of Information Act (FOIA) lawsuit, again asserting that the Newberry venue is improper.

Bauknight was appointed by McMaster as trustee of the “Legacy Trust,” which McMaster created in late 2008 or early 2009, and now serves at the pleasure of Wilson.

Pope’s return to Bauknight’s attempt to dismiss the suit asserts that the name of McMaster’s “Legacy Trust” is deceptive, because it had nothing to do with James Brown’s true estate plan.

According to an affidavit filed with Pope’s return, the “Legacy Trust” was McMaster’s vehicle to take control of Brown’s assets and funnel $50 million from the needy and deserving students James Brown intended to benefit to claimed heirs that Brown intentionally disinherited from his worldwide music empire.

Pope’s FOIA suit also seeks a declaration that McMaster’s “Legacy Trust” is a public body under FOIA.

Pope’s return, filed Monday, asserts both AG Wilson and the “Legacy Trust” are seeking to conceal public documents which would show improper acts by members of the AG’s office, the previous AG, and/or the Trustee of the “Legacy Trust.”

“It is surprising that AG Wilson, who prosecutes FOIA violations, will not produce documents to show why he told the Court that James Brown’s $100 million dollar music empire was worth only $4.7 million. It is shocking that AG Wilson refuses to produce a copy of the James Brown Legacy Trust, under which Wilson now controls that music empire,” said Columbia attorney Adam Silvernail, Pope’s attorney.

Pope and Aiken attorney Robert Buchanan served from 2007 to 2009 as court-appointed fiduciaries of music icon James Brown’s estate and trust, which includes The James Brown “I Feel Good” private foundation, established in 2000 by Brown to benefit needy and deserving students in South Carolina and Geogia.

Brown’s estate plan stated that at his death, the proceeds of his music empire—including royalties to over 800 songs--would be rolled into his “I Feel Good” Trust.

According to Pope’s affidavits on file in two FOIA lawsuits filed in August in Newberry County, McMaster reached an agreement in August 2008 with some of Brown’s more than a dozen claimed heirs. The agreement, in addition to giving the disinherited relatives half of Brown’s estate, called for the creation of what became McMaster’s “Legacy Trust.”

Although the AG refuses to release a copy of the signed “Legacy Trust,” statements by his office and drafts filed in Aiken County make clear that the “Legacy Trust” is controlled by the AG through a right to remove and replace the trustee at will.

Yet, Pope’s requests for a copy of the “Legacy” trust have been repeatedly denied, as have her requests for documents related to Bauknight’s $4.7 million valuation of Brown’s music empire, which was valued by all previous Brown fiduciaries, until Bauknight, at about $100 million (less a $15 million dollar debt).

In May Bauknight revealed that he had filed documents with the Internal Revenue Service, assserting that at Brown’s death in December 2006, the value of his music empire was $4.7 million. AG Wilson and Bauknight later asked the Supreme Court to accept this valuation, as well.

An order issued by the Supreme Court in July declined to supplement the record to include Bauknight’s $4.7 million valuation.

Through Columbia attorney David Black of Nexsen Pruet, Bauknight threatened Pope with legal action and sanctions if she continued to exercise her rights under the FOIA.

Pope asserts that the many James Brown cases—most pending in Aiken County-- should not prevent her from exercising her FOIA rights in Newberry County.

Under Brown’s estate plan, the “I Feel Good” Trust was slated to be South Carolina’s largest private foundation dedicated solely to provide education benefits for needy and deserving students.



























AG Wilson’s Promise To Release Contracts With Outside Counsel May Resolve Newberry James Brown FOIA Case

By Sue Summer, 803-276-6197 Sept. 19, 2011



In Newberry on Sept. 12, Attorney General (AG) Alan Wilson filed a motion to dismiss a Freedom of Information Act (FOIA) lawsuit in which he was asked to release copies of public documents related to the James Brown music empire.

Among the requested documents was a contingency-fee agreement between former AG Henry McMaster and outside counsel, Columbia attorney Ken Wingate. Wingate represents the State and about 15 private plaintiffs in a James Brown suit in Richland County.

Other James Brown cases are pending in the Aiken County Circuit Court, the S.C. Court of Appeals, and the S.C. Supreme Court.

The FOIA lawsuit was filed by Newberry resident Adele Pope in August. She and Aiken attorney Robert Buchanan, former Brown trustees, have repeatedly attempted to obtain the fee agreement and other documents for 10 months.

Only two days after Wilson’s motion to dismiss the Newberry FOIA suit, on Sept. 14, the State newspaper reported Wilson had announced, through an agency spokesperson, that contingency agreements with outside law firms are available to members of the public who request them and that the AG’s office is in the process of posting all such agreements on its website.

“We hope this announcement means that the AG will release the public documents which Pope and Buchanan have been trying to obtain for almost a year, first from former AG McMaster and now from AG Wilson,” said Adam Silvernail, Pope’s attorney.

The unreleased contingency-fee contract between McMaster and Wingate authorized Wingate to sue Buchanan and Pope on behalf of the State while simultaneously representing about 15 private plaintiffs.

In a hearing scheduled for Richland County last Wednesday morning (Sept. 14), Pope and Buchanan sought to disqualify Wingate from representing both the State and the private individuals.

In a brief filed Wednesday, Pope also asked that current Brown trustee, Columbia CPA Russell Bauknight, be enjoined from asserting that he acts for the State or the AG. Bauknight replaced Pope and Buchanan as trustee and serves at the AG’s pleasure.

Bauknight and AG Wilson have both refused to produce the contingency-fee contract and other documents requested by Pope’s two FOIA lawsuits, including documents related to the value of Brown’s assets and a copy of McMaster’s “Legacy” trust.

In 2008 McMaster forged an agreement with some of Brown’s claimed heirs, all of whom were disinherited from his worldwide music empire, and gave them more than half of Brown’s assets.

In late 2008 or early 2009, McMaster set up the “Legacy” trust with Bauknight as trustee. To date, no signed complete copy of the Legacy trust has been produced, but at least two incomplete drafts are on file in Aiken County.

Before the McMaster agreement, Brown’s estate plan gave his music empire to the “I Feel Good” trust to provide scholarships for needy and deserving students.

Brown’s music empire—with royalties to about 850 songs, as well as publicity rights—was widely reported to have a value of $100 million at his death, less a $15 million debt. At about $80 million, the “I Feel Good” trust would have been South Carolina’s largest private foundation dedicated solely to scholarships for needy and deserving students.

In December 2010, however, Bauknight filed documents with the Internal Revenue Service placing a $4.7 million value on Brown’s worldwide music empire at his death in 2006.

According to J. David Black of the Columbia law firm Nexsen/Pruet, which represented Bauknight in the IRS filing, Bauknight’s $4.7 million value for Brown’s music empire at death is based upon an independent professional appraisal, authorized by Mr. Bauknight. When reached by email, Black failed to disclose the name of the New York appraiser.

In Black’s email, he claimed Brown’s music empire was worth $4.7 million “because of outstanding debt and bond issues as well as Mr. Brown’s prior advisors’ mismanagement of his assets.” He said further that all of Brown’s assets, including the music, had a value of only $5.7 million.

In 2007 David Cannon, one of three original trustees appointed by Brown, resigned after Pope and Buchanan discovered he had taken $900,000 from Brown’s Trust the previous year. Cannon was indicted in 2010 for felony breach of trust with respect to Brown’s assets between 1999 and 2006. He was also indicted for a 2008 forgery related to Brown.

Cannon has not yet been tried, but in November 2010 he was placed, along with former trustee Albert “Buddy” Dallas, on Wingate’s witness list in the Richland County case.

Pope and Buchanan, who valued Brown’s music assets at about $85 million, have challenged McMaster’s agreement and Bauknight’s valuation.

As of Monday afternoon, the contingency fee agreement with Wingate had not been posted on the AG’s website.

When asked by email when the Wingate contract would be available on the AG's website, spokesperson Mark Plowden responded Tuesday morning, "I am on medical leave, but will have someone send it to you."

Judge Casey L. Manning continued the Richland County hearing to consult with Chief Administrative Judge Alison Renee Lee.



AG Still Refuses to Release Documents In Two Newberry FOIA Cases Related to James Brown Music Empire

By Sue Summer, 803-276-6197 Sept. 23, 2011



Two weeks after a public statement that all contingency fee contracts would be placed on the website of the Attorney General (AG), current AG Alan Wilson has still not released former AG Henry McMaster’s contract with outside counsel Ken Wingate.

The contract, believed to have been executed in late April or early May of 2010, authorized Wingate to sue former James Brown trustees Robert Buchanan of Aiken and Newberry resident Adele Pope.

In addition, the contract also apparently authorized Brown’s current fiduciary and trustee of the “Legacy” Trust, Columbia CPA Russell Bauknight, to speak on behalf of the AG.

On July 19 Pope requested a copy of the Wingate contract under the Freedom of Information Act (FOIA). Pope and Buchanan’s efforts to obtain the contract under discovery for almost a year were unsuccessful.

On Sept. 14, in a State news story about outside counsel in an unrelated case, Wilson, through a spokesperson, promised transparency and confirmed that all contingency fee agreements with outside counsel are public documents and available on request.

Five days later, at this reporter’s request, spokesperson Mark Plowden agreed to send the Wingate contract.

On Sept. 22, however, deputy AG Bryan Stirling provided a letter by assistant deputy AG C.H. Jones Jr. stating that that the AG’s office was willing to release the Wingate agreement but would not do so until it received further guidance from the court.

In the Newberry FOIA case, Adam Silvernail of Columbia, Pope’s counsel, continues to seek an expedited hearing and release of the documents Pope requested under FOIA more than 60 days ago.

In a second FOIA case filed in Newberry in early August, Pope also seeks: to declare the trust created by former AG Henry McMaster, called the “James Brown Legacy Trust,” a public body; to require release of a copy of the Trust; and to obtain information about Bauknight’s $4.7 valuation of Brown’s music empire.

Pope’s affidavits on file in the FOIA suits assert that Bauknight’s $4.7 million is “outrageous” and inconsistent with the $50 million Brown earned between 1999 and 2006 from royalties and road performances.

Pope asserts that all of Brown’s prior fiduciaries and others have valued Brown’s music empire at death about $85 million or more.

Brown’s primary assets, according to both Pope’s affidavits and J. David Black, counsel for Bauknight as personal representative and trustee, are Brown’s royalties and publicity rights—the right to use his image and persona on products.

As evidence of the value of Brown’s publicity rights at death, Pope sites a Global Gaming contract negotiated before Brown’s death. The deal to use Brown’s image on games has been projected to produce $500,000 a year after a development period.

Pope’s affidavit also quotes counsel for Brown’s original fiduciaries, who reported to the Aiken Court shortly after Brown’s death that Brown had earned a million dollars a week for his annual 3-week tours overseas.

Brown continued to be the “hardest working man in show business” until his death at age 73, performing in more than 100 shows in 2006.

In an email last week, Black asserted that the $4.7 valuation of Brown’s music empire is low “because of outstanding debt and bond issues, as well as Mr. Brown’s prior advisors’ mismanagement of his assets.”

Pope’s affidavit attaches 2010 indictments against former trustee David Cannon, who is charged with breach of trust with fraudulent intent with respect to James Brown for years 1999 to 2006. He is also charged with forgery of an employment contract with Brown in 2008.

Cannon has been sued for the return of more than $12 million, misappropriated between 1999 and 2006. Although indicted more than 18 months ago, he has not been tried.

Cannon’s name is on the witness list submitted by Wingate in the State’s lawsuit against Buchanan and Pope.

Silvernail of Columbia said, “We hope to have a hearing within the next few weeks if the Attorney General does not reverse his position and give us these public documents.”

Buchanan and Pope are asking the S.C. Supreme Court to reverse a 2006 Aiken County Circuit Court order authorizing McMaster to take control of James Brown’s assets. Oral arguments in that case are scheduled for Nov. 1.

As of Monday afternoon, no contingency fee contracts had been posted on the AG’s website, scag.gov.





Newberry FOIA lawsuits may hold the answer: will James Brown’s last wish be granted?

Sue Summer, 803-276-6197 Oct. 5, 2011



Two Freedom of Information Act (FOIA) lawsuits filed in Newberry County may prove pivotal in answering the question: will entertainment icon James Brown be denied his last wish?

According to Albert “Buddy” Dallas, one of Brown’s original trustees, Brown spent over $20,000 and almost 20 years to make sure his estate plan was exactly as he wanted it.

In a telephone interview, Dallas said he had worked with Brown over a 24-year period, and throughout that time, Brown consistently voiced his concern for children getting an education.

“I was with James Brown in 1987 at the Scottish Rites Hospital in Atlanta when he announced publicly that he would be leaving his estate to educate needy and underprivileged children,” Dallas said.

Brown had only an 8th grade education, and he felt education was the needy child’s only way out. Brown promoted education at every opportunity, even in his music, Dallas said.

Brown’s song, “Don’t Be a Dropout,” repeats the refrain, “without education, you might as well be dead.”

Dallas said that Brown formalized his wishes in his will and a trust, dated Aug. 1, 2000, and that the trust is recorded in two states, Georgia and South Carolina. Brown’s will and estate plan were under discussion with his attorney for over two years, and his children were aware of his wishes.



According to a Rolling Stone article in July, Brown and his children were not close, and in 1988 at a business meeting he declared, "They will not ride on my back when I'm gone, Mr. Dallas! Do you hear me?"

“Mr. Brown’s testamentary scheme was quite simple and extremely altruistic,” Dallas said, explaining that Brown’s estate plan provided for three things:

1. To six children, named in the will, Brown left his household and personal effects.

2. For his “blood” grandchildren, Brown set up an educational trust.

3. Everything else Brown owned, including royalties and the right to his image, he left to an education trust for needy and underprivileged children in South Carolina and Georgia.

“Here we are, five years later, and not one needy or underprivileged child has received one dime,” Dallas said.

What happened to thwart the final wishes of the “Godfather of Soul”?

Brown’s will was clear that anyone who challenged his estate plan would receive nothing. Yet, within a year of his death on Christmas Day, 2006, Brown’s will had been challenged by some of the children specifically excluded from inheriting his music empire, as well as by the woman with whom he lived.

According to previous filings, Tommie Rae Hynie Brown was married to another man at the time she exchanged vows with Brown. Therefore, she could not be Brown’s wife. Given that Brown was widely reported to have had a vasectomy in the early 1980s, there is also a question of paternity regarding her son.

At the time the challenges to Brown’s will were made, the three original trustees had resigned.

In November 2007, the Aiken Court appointed Adele Pope of Newberry and Aiken attorney Robert Buchanan to replace them.

In August of 2008, AG Henry McMaster entered into a settlement agreement that called for placing Brown’s assets in a deceptively-named “James Brown Legacy” Trust--deceptively named, in that the “Legacy” Trust was never a part of Brown’s estate plan. Under the agreement, more than half of the Legacy Trust assets would then be given to some of those who had contested the will.

McMaster named Columbia CPA Russell Bauknight the sole trustee of Brown’s assets. Bauknight was appointed by the AG and serves at the AG’s pleasure, giving the AG full control of the Legacy Trust.

McMaster asked that Pope and Buchanan sign a statement not to criticize him or the agreement. In a previously filed affidavit, attorney Pope asserts she has a duty to warn her clients with foundations that in South Carolina, the AG may attempt to rewrite their estate plans.

Buchanan and Pope appealed McMaster’s settlement agreement in the summer of 2009.

They are now being sued. In the lawsuit, Columbia attorney Ken Wingate serves as outside counsel for the State, current trustee Bauknight, and 10 private plaintiffs – including some of Brown’s claimed heirs.

The lawsuit alleges Pope and Buchanan caused tens of millions of dollars of damage to Brown’s music empire during their tenure as trustees, which ended in early 2009.

Despite Wingate’s allegation, Bauknight has filed documents with the Internal Revenue Service (IRS), claiming that at Brown’s death in 2006, his music empire was worth only $4.7 million.

Pope and Buchanan valued the assets at $100 million, less a $15 million debt.

The figure of $100 million has been widely reported in national publications such as Forbes and the Rolling Stone, and all previous trustees have concurred in the higher valuation.

As early as 1999, Brown borrowed $26 million, using his music assets as collateral. In announcing the bond deal, Wall Street financier David Pullman stated in a press release: “James Brown has created over $100 million in entertainment assets which continue to generate royalties…”

Between 1999 and 2006, Brown earned about $50 million in royalties and fees for performances, and in a 2007 prospectus, some of Brown’s children estimated the value of his music empire as high as $200 million.

In 2010 alone, Brown’s royalties were reported at $5.4 million.

AG Alan Wilson has not released the documents requested by Pope in the Newberry FOIA lawsuits.

The documents Pope is seeking include: a copy of Wingate’s contingency-fee contract with the AG’s office; documents related to the valuation of Brown’s estate and trust; a copy of the James Brown Legacy Trust; and the authorization document under which Bauknight purports to speak for the AG’s office.

These documents may help to determine how much education funding will be available to needy and deserving children in South Carolina and Georgia, how much of James Brown’s music empire will be given to those he specifically excluded from inheriting it, if the State can take control of Brown’s personal estate plan and rewrite it—and whether the Freedom of Information Act will be undermined by the very public official responsible for enforcing it.

The S.C. Supreme Court will hear arguments in the Brown case on Nov. 1.





Wingate Firm, James Brown Children, and Others Ask To Join Attorney General Wilson in Fighting Release of Public Documents

By Sue Summer, 803-276-6197 or 803-271-3500 27 October 2011



In the latest twist in a Newberry County Freedom of Information Act (FOIA) lawsuit, there was a request made Wednesday morning (Oct. 26) that other parties be allowed to enter the lawsuit as defendants, including some members of the family of music icon James Brown, current Brown trustee Columbia C.P.A. Russell Bauknight, and others.

The Newberry FOIA lawsuit, filed Aug. 10 by Newberry resident Adele Pope, asked Attorney General (AG) Alan Wilson to release the contingency fee litigation agreement between former AG Henry McMaster and the law firm of Kenneth Wingate, which authorized Wingate to sue former James Brown trustees, Pope of Newberry and Robert Buchanan of Aiken.

At Wednesday’s hearing in Laurens County before Judge Frank Addy Jr., Mark Gende of the Wingate law firm asked the court to allow his clients from a different case in Richland County to join in the FOIA lawsuit.

Adam Silvernail, counsel for Pope, argued that Wingate’s clients should not be parties because no documents have been requested from them.

AG Wilson has been dodging the release of the documents since July, when Pope mailed from Newberry an FOIA request for the McMaster/Wingate agreement to sue Buchanan.

Soon after she asked for the contract, Wingate’s firm filed a document in Richland County asserting that the McMaster/Wingate retention agreement was private and should not be released.

After receiving no documents from the AG’s office, on Aug. 10 Pope filed a lawsuit in Newberry County to obtain the agreement.

On Sept. 13, AG Wilson announced in The State newspaper that all of his contingency fee litigation agreements with outside counsel were public documents and would be released on his website.

Following a request from the Newberry Observer for a copy of the McMaster/Wingate contract, senior assistant AG C.H. Jones Jr. wrote the Richland County court on Sept. 22 and claimed that AG Wilson is “ready and more than willing” to release the McMaster/Wingate agreement but that the AG did not want to violate a stay order allegedly issued by Judge Casey Manning on Sept. 14.

Then on Sept. 28, Richland County Judge Casey Manning issued an order that continued the Sept. 14 case, but nowhere on the document is a “stay” mentioned.

On Oct. 10 AG Wilson posted on his website 10 contingency fee agreements with other attorneys: the Wingate contract was not among them.

All 10 state plainly that they are public documents. Other agreements also contain a clause that allows the AG to retain 10 percent of special counsel’s fees.

The AG’s website said that all contracts had been released “except those matters in which disclosure is currently under review by a court.”

A request from the Newberry Observer for other contracts “under review” received no answer from Mark Plowden, spokesperson for the AG’s office.

At the Oct. 26 hearing, counsel for the State, Emory Smith Jr., continued to assert that a stay was in place on the McMaster/Wingate contract. When Judge Addy said he planned to call Judge Manning, Smith quickly added that even if no stay were in place, the FOIA case should be dismissed because of venue and jurisdictional issues.

Silvernail argued that the AG’s office has never claimed that the document was not public, nor has it ever been argued that the AG’s office was not a public body.

“The AG has declared that the McMaster/Wingate agreement is a public document, and there is no basis for his refusal to disclose it,” Silvernail said.

The Public Official’s Guide to Compliance with South Carolina’s Freedom of Information Act contains a letter from AG Wilson which reads in part: “As public officials…we have an obligation not only to adhere to the letter of this law, but also live up to its spirit through compliance with every reasonable FOIA request without delay or obstruction to the individual or entity seeking their right to public information.”

He further advises public officials, “When in doubt, disclose the requested information…When in doubt, release the document.”

Judge Addy said he hopes to have a ruling by the end of the week.

###























Former James Brown Trustees Ask S.C. Supreme Court to Restore James Brown “I Feel Good” Trust to Original $80 Million

Sue Summer, 803-276-6197 November 1, 2011



The South Carolina Supreme Court heard arguments Tuesday in the attempt by former James Brown trustees, Robert Buchanan of Aiken and Adele Pope of Newberry, to set aside a 2008 deal between former SC Attorney General (AG) Henry McMaster and some of Brown’s disinherited claimed heirs to transfer about $50 million from Brown’s “I Feel Good” Trust.

AG McMaster’s deal re-wrote Brown’s estate plan, giving McMaster control of Brown’s assets through a trustee that is selected by the AG and can be removed at will. The agreement also gave away over 50 percent of Brown’s assets to disinherited relatives and claimed relatives.

Buchanan and Pope argue that the court’s decision may determine the future of private philanthropy in S.C.

Brown’s estate plan dedicated his entire $100 million dollar music empire to education. After providing education trusts for seven grandchildren, Brown put the rest in the James Brown “I Feel Good” private foundation, to be used solely for scholarships to needy children.

In the Aug. 10, 2008, agreement, McMaster rewrote Brown’s estate plan to give 25% of the music empire to Brown’s companion and another 25% to five of Brown’s more than a dozen claimed children.

McMaster’s rewrite was subsequently amended to leave the “I Feel Good” foundation with only about 47 percent of Brown’s music empire.

At Tuesday’s hearing, Chief Justice Jean Toal asked hard questions about AG McMaster’s decision to give Brown’s companion, Tommie Rae, a quarter of the music empire, even though: she had signed a pre-nuptial agreement before their marriage ceremony; she was married to another man at the time she and Brown exchanged vows; and after an annulment of her previous marriage, she agreed in a settlement that she would never claim to be Brown’s common-law wife.

William Wilkins, counsel for the settling parties, argued that the S.C. Supreme Court misinterpreted its 2008 Lukich v. Lukich decision, which holds that a second marriage is void when a party is married even if an annulment is obtained later.

Also at issue was whether McMaster should have spoken for Brown’s 2000 Trust in the settlement, giving over half of its assets to persons Brown had intentionally disinherited.

James Richardson, attorney for Buchanan and Pope, argued that no attorney general in the nation has the authority to take over and sign documents for a private foundation, and even though the AG may enter legal proceedings and speak for the charitable beneficiaries, there is no precedent for an AG to give away a trust’s assets.

Richardson argued that the right of the AG to enforce the proper operation of a private foundation does not give him the authority to dismantle it.

Deputy AG “Sonny” Jones was asked why McMaster did not use his authority to enforce the “I Feel Good” trust, including the enforcement of the in terrorem clauses against Brown’s children.

In terrorem clauses state that anyone who challenges the will or trust receives nothing.

The will was challenged on the assertion of undue influence, and Justice Toal wanted to know what steps were taken to determine the strength of such a claim.

Jones admitted that the AG’s office did not interview any of the witnesses to Brown’s 2000 will and trust as to his mental competence, and that the lower court judge had made no baseline determination about the strength of the challenge to the will.

Jones claimed the shrewdness of the original trustees convinced him of undue influence, but Toal responded that was the not the law in South Carolina.

Jones referred to last week’s plea by original trustee David Cannon who, according to court documents, paid himself almost $12 million of the $80 million Brown took in between 1999 and 2006.

Although indicted two years ago, it was only on Oct. 27, 2011, that Cannon was found guilty of breach of trust. Cannon was sentenced in Aiken County to three years of home confinement.

AG Alan Wilson’s office sought no restitution for the $12 million taken by Cannon, leaving Cannon with a $1 million retirement home he purchased in 2007 on the exclusive island Roatan in Honduras.

Brown’s will and trust directed that his fiduciaries were to “vigorously defend” his estate plan. In fulfillment of their duty as fiduciaries, Buchanan and Pope appealed McMaster’s rewrite of Brown’s will and trust.

The appellant’s filings assert that if McMaster’s destruction of the “I Feel Good” foundation is not reversed, it could destroy private philanthropy in South Carolina by discouraging wealthy citizens from creating charitable trusts in the state.





WKDK News: Nov. 3, 2011

(With recording of Sonny Jones/Justice Toal exchange)



The South Carolina Supreme Court heard arguments Tuesday in an appeal related to music legend James Brown.

Robert Buchanan of Aiken and Adele Pope of Newberry argued, through their attorney Jim Richardson, that the court should set aside a 2008 deal cut by SC Attorney General (AG) Henry McMaster that gives half of Brown’s music empire to those Brown intentionally disinherited.

Brown’s estate plan dedicated his entire $100 million dollar music empire to education. After providing education trusts for seven grandchildren, Brown put the rest in the James Brown “I Feel Good” private foundation, to be used solely for the education of needy children in SC and Georgia.

McMaster’s rewrite of Brown’s estate plan gives half of Brown’s music empire to those who contested the will, claiming undue influence. Brown’s companion, who was married to another man when she exchanged vows with Brown, was given 25%, and another 25% was given to five of Brown’s children.

The claim of undue influence raised the question of Brown’s mental competence, and Chief Justice Jean Toal asked hard questions of deputy AG Sonny Jones, asking what steps were taken to determine the strength of this claim.

Jones was also asked why McMaster did not use his authority to enforce a clause in Brown’s will that said anyone who challenges the will or trust receives nothing.

Insert Toal/Jones exchange.

Brown’s will and trust directed his fiduciaries to “vigorously defend” his estate plan. In fulfillment of their duty as fiduciaries, Buchanan and Pope appealed McMaster’s rewrite of Brown’s will and trust.

In their filings, Pope and Buchanan assert that if McMaster’s destruction of the “I Feel Good” foundation is not reversed, it could destroy private philanthropy in South Carolina by discouraging wealthy citizens from creating charitable trusts in the state.















Judge Casey Manning Takes Control of Ring Two In James Brown Circus

For the Newberry Observer

Sue Summer, 803-276-6197 Nov. 7, 2011



In an order filed Nov. 2, Richland County Chief Administrative Judge Alison Renee Lee assigned to Judge L. Casey Manning one ring of the three-ring circus surrounding the estate of entertainment legend James Brown.

At stake in all three rings is whether Brown’s $100 million music empire will end up in Brown’s “I Feel Good” foundation, providing scholarships for needy and deserving students, or with a majority given to some of his disinherited claimed heirs under a deal made by former Attorney General (AG) Henry McMaster in Aug. 2008.

The claimants and their trustee, Columbia CPA Russell Bauknight--represented by a battalion of lawyers--now assert Brown’s music empire was worth less than $4.7 million when he died on Christmas Day, 2006.

Judge Lee assigned Manning to hear all matters, including trial, in Case #2010-CP-40-4900, which she designated as complex. The trial is ordered to take place on or after June 1, 2012.

The case now in Judge Manning’s hands has languished since it was filed in May, 2010, by Columbia attorney Kenneth Wingate. Wingate represents about a dozen plaintiffs, including Brown’s companion Tommie Rae, Brown’s son Terry, and Bauknight.

The Wingate complaint alleges that former Brown trustees, Robert Buchanan of Aiken and Adele Pope of Newberry, damaged his clients by tens of millions of dollars by: appealing McMaster’s deal; refusing to sign a document promising not to criticize McMaster or the deal; and by not accepting a $100 million offer to buy Brown’s assets.

Buchanan and Pope have counter-claimed they owed no duty to the disinherited relatives who, with Bauknight, damaged Brown’s estate and 2000 trust by recommending a $50 million transfer of Brown’s assets from scholarships for needy students … to themselves.

Buchanan and Pope were appointed to manage Brown’s assets by Aiken County Judge Doyet A. Early III on Nov. 20, 2007. They were replaced by Bauknight in a May 26, 2009, order of Judge Early which approved McMaster’s deal.

The deal is now on appeal.

The S.C. Supreme Court, in the center ring, is considering whether AG McMaster had the authority in 2008 to: settle claims against Brown’s estate; give more than half of Brown’s assets to disinherited relatives; and take control of Brown’s assets.

Oral arguments were heard on these issues on Nov. 1.

Speaking for appellants, attorney James B. Richardson Jr. argued to the justices that McMaster lacked the authority to give away more than half of Brown’s “noble gift” to needy and deserving students.

Under questioning by Chief Justice Jean Toal, senior assistant AG “Sonny” Jones admitted the AG’s office had not interviewed witnesses to Brown’s will or 2000 trust. He said McMaster’s deal rested in part on his belief that the shrewdness of Brown’s original trustees—one of whom has now been sentenced to three years of home confinement for felony breach of trust—provided a basis to overturn Brown’s will for “undue influence.”

The trustees were given nothing under Brown’s will or the 2000 trust.

William Wilkins, one of Bauknight’s attorneys, told the justices that Brown’s heirs hold valuable rights under the federal Copyright Act. Wilkins agreed, however, that Judge Early was not asked to determine whether Brown had a wife, or who were Brown’s heirs.

Aiken County filings show that a DNA protocol established by Rodney Peeples, attorney for the original trustees, identified three Brown heirs: daughters LaRhonda Pettit, Cinnamon Nicole Parris, and Jeanette Mitchell.

The real fireworks in the Richland County ring--not a part of Supreme Court appeal--may be the question: what is the true value of Brown’s music empire? Bauknight assigned a $4.7 million value, but all of Brown’s prior trustees (and even some of Bauknight’s co-plaintiffs) have assigned a $100 million value or more.

So far, the parties have agreed on only one thing: Brown’s primary assets are the royalties, rights to more than 850 published and unpublished songs, and Brown’s publicity rights (the right to exploit his image and persona).

Wingate’s client Terry Brown and Atlanta investor, Dr. Terry Cox--as part of an entity called TJBL--made three $90-102 million offers to buy the Brown assets in late 2007 and 2008.

In a telephone interview with this reporter, original trustee Albert “Buddy” Dallas said he left a $100 million offer on the desk of Judge Early when he resigned as trustee on Nov. 20, 2007. Cox testified about the $100 million offer at the Nov. 20 hearing.

Bauknight asserts there was never an offer to purchase Brown’s assets. He has filed documents with the IRS and a sworn Aiken County inventory that asserts the $4.7 million value is correct. Dallas and now deceased fiduciary Al Bradley, however, in 2007 filed a sworn inventory valuing Brown’s assets at approximately $86 million.

Bauknight and Pope reported the music empire on the estate tax return at about $85 million--$100 million less approximately $15 million Brown owed on a $26 million royalty-backed TIAA note Brown signed in 1999. On Nov. 1 Wilkins told the Supreme Court the TIAA debt has been paid off as of Oct. 28, nine years ahead of schedule.

Ring three of the Brown circus, located in Newberry County, is Pope’s attempt under FOIA to obtain public documents from AG Alan Wilson, including the 2010 McMaster/Wingate contract to sue Buchanan/Pope. Acknowledging that the contract is a public document, AG Wilson has stonewalled the release of the McMaster/Wingate agreement for over three months. After the filing of Pope’s FOIA suit, Wilson posted all other litigation retention agreements with outside counsel on his website.















































Court Denies Immediate Release of FOIA Request for State’s Contract to Sue Trustees Who Defended James Brown’s Estate Plan



By Sue Summer

For The Newberry Observer Nov. 28, 2010







On Nov. 22, Circuit Judge Frank R. Addy, Jr., ruled in a Newberry Freedom of Information Act (FOIA) lawsuit filed in August by Newberry resident Adele Pope.



The ruling allows Attorney General (AG) Alan Wilson to continue stonewalling the release of the State’s 2010 contract under which outside counsel are suing former trustees who defended the estate plan of music icon James Brown.



Pope brought the lawsuit after AG Wilson refused her July 19 FOIA request for the release of the 2010 contingency fee contract between former AG Henry McMaster and Columbia attorney Ken Wingate, under which Pope and Aiken attorney Robert L. Buchanan Jr. are being sued.



The Wingate suit was filed May 19, 2010, in Richland County on behalf of Brown’s companion Tommie Rae, the State, and others. It seeks tens of millions of dollars from Pope and Buchanan, alleging it was improper for them to contest a settlement McMaster made with some of Brown’s alleged relatives. The suit also alleges other wrongdoing by Buchanan and Pope, including a refusal to accept a $100 million offer to purchase Brown’s assets.



The Wingate suit appears to be the first tort case brought by the State in which the State is represented solely by a private lawyer who is also representing numerous private plaintiffs. Neither the AG nor any lawyer on his staff is an attorney in the Wingate suit.



In the Wingate suit, Columbia accountant and current trustee Russell Bauknight asserts that he speaks on behalf of the AG. Pope’s FOIA request and suit also seek the documents purporting to give Bauknight that authority.



The ruling stems from an Oct. 26 hearing in which Pope sought immediate release of the McMaster/Wingate contract to sue Buchanan/Pope. The request for summary judgment was based on 1) AG Wilson’s declaration that the contract is a public document, and 2) the Sept. 22 letter of senior assistant AG “Sonny” Jones that asserts AG Wilson’s office is “ready and more than willing” to release the contract.



At the hearing before Judge Addy, Mark Gende of the Wingate law firm made an oral motion to intervene in the FOIA suit on behalf of Brown’s companion Tommie Rae Hynie, Bauknight, and others who are parties to the Wingate suit.



Judge Addy declined immediate release of the McMaster/Wingate contract, but he did rule that Wilson must answer Pope’s complaint. The order states that the FOIA suit will then be consolidated with Wingate’s suit in Richland County, Case 2010-CP-40-4900.



AG Wilson argued that Pope’s FOIA suit was merely an extension of the discovery dispute in the Wingate case, but Judge Addy wrote, “Substantively, a FOIA request is a different animal than a discovery request.”



The order further states: “…production of documents under the FOIA is statutorily guaranteed to any person.”



Addy declined to rule on joining private plaintiffs in the FOIA lawsuit.



In an introductory letter to the “Public Official’s Guide to Compliance with South Carolina’s Freedom of Information Act,” AG Alan Wilson writes: “The Freedom of Information Act (FOIA) was enacted to provide direct access to the functions of government to the general public and the press…Government agencies and public officials have a duty to disclose any public information requested through the FOIA…”



The Newberry Observer requested a copy of the McMaster/Wingate contract from AG spokesperson Mark Plowden at least six times. The last request on Oct. 18 has yet to receive a reply.



AG Wilson released other contingency fee contracts on his website, but not the McMaster/Wingate contract. When asked by the Observer in October how many other contracts were withheld from release, spokesperson Plowden did not reply.

































James Brown Grandson Fires Lawyers In Trust Lawsuit, Including Former Chief Justice Finney



By Sue Summer

For The Newberry Observer Dec. 5, 2011



In a surprise move only days before a Dec. 15 federal court hearing on the 2000 Irrevocable Trust of music icon James Brown, his grandson Forlando Brown has fired his entire legal team.



Among those sacked by Forlando are: former S.C. Chief Justice Ernest Finney, whose wife Frances (Davenport) is from Newberry; the law firm of Finney’s son, Jerry Leo Finney; several members of the 1200-lawyer Atlanta firm, Bryan Cave LLP (formerly Powell Goldstein); and Augusta lawyer David Bell.



Last week Bryan Cave, the Finneys and Bell filed a motion before Federal Judge William Bertelsman to withdraw as counsel in a lawsuit they filed for Forlando in January 2008, when he was a 21-year-old student. The suit has languished since then, but Bell has actively represented Forlando in other matters in Aiken County—always in support of his grandfather’s estate plan, which leaves his entire music empire to provide scholarships for designated grandchildren and for needy students attending schools in South Carolina and Georgia.



In 2008 Forlando sought to enjoin Newberry resident Adele Pope and Aiken attorney Robert Buchanan from acting as Brown trustees, alleging that they were illegally appointed on Nov. 20, 2007, and would not protect Brown’s estate plan from disinherited relatives.



In the complaint Forlando stated he was close to his grandfather, especially during the last seven years of Brown’s life. He said Brown “recognized the value of education and wished he had been able to obtain more of an education during his life.” He said Brown’s Irrevocable Trust, which leaves his music empire to education, reflects James Brown’s wishes to provide those in need with the opportunity for an education.



Forlando’s complaint against Pope and Buchanan asserted that the Irrevocable Trust was “believed to have a value in excess of tens of millions of dollars or more.” The complaint expressed concern that Brown’s In Terrorem clause would not be used to enforce his wishes.



A month after Forlando filed the lawsuit in January of 2008, he and former Attorney General (AG) Henry McMaster made a joint appearance on WIS-TV, asserting that Buchanan and Pope were not working for the poor children Brown intended to benefit. Six months later, however, McMaster entered into a settlement that dismantled Brown’s Irrevocable Trust, taking more than half of what Brown gave for scholarships to the needy and giving it to disinherited, claimed relatives.



McMaster also gave the right to purchase Brown’s assets to Forlando’s father, Terry, who was represented by Powell Goldstein.



In defense of Brown’s estate plan, Buchanan and Pope appealed McMaster’s settlement to the S.C. Supreme Court, which heard oral arguments in the case on Nov. 1.



In a telephone interview, Forlando said he is now in the process of searching for new attorneys who will vigorously defend his grandfather’s estate plan and work to nullify the McMaster deal with claimed relatives.



Forlando said the decision to fire previous counsel was the result of his increasing frustration with poor management of the Trust. “My grandfather had a huge estate with rights to music royalties and the use of his image. He left the tools to raise tons of money for needy children, but after five years, not one child has been given one penny.”



Forlando wants attorneys who will fight against the settlement forged by McMaster and his assistant Sonny Jones, which gave away more than half of what Brown intended to benefit poor children to those Brown intentionally disinherited.



“I want just what my grandfather wanted. He danced the dances, he sang the songs, and he should be the one to decide what happens with his money,” Forlando said.



Forlando would like the In Terrorem clauses of the will and trust to be enforced. “If you contest his will, you forfeit your rights. The same aunts and uncles who are now contesting his will, they sued my grandfather for songs that he wrote. Imagine how he felt about that.”



People ask why Brown would leave everything to poor children he would never meet, but Forlando understands. “My grandfather was a poor child, he had nothing. He grew up in the home of a prostitute, had to sleep under the house and steal for something to eat.”



Forlando said Brown had already provided his own children with educational opportunities, his Trust provided for his grandchildren’s education—and beyond that, he wanted to leave everything to children like himself, who would otherwise have no chance to receive an education.



Forlando’s search for new attorneys who will fight harder to uphold his grandfather’s estate plan came on the heels of a visit to his grandfather’s home in mid-November. Forlando and his father are working on a James Brown biography that addresses his childhood hardships. In the hope that being in his home and seeing his things would jog their memories about stories from his childhood, Forlando asked permission for a visit from current Brown trustee Russell Bauknight, who was appointed by McMaster and now serves at the pleasure of current AG Alan Wilson.



“We were told by Russell Bauknight that no one would be allowed to go to the home in November, a holiday month,” Forlando said.



Forlando and his father Terry decided it might be helpful simply to drive by his grandfather’s home, and when they arrived, they discovered not everyone had been denied access. “We found Deanna Thomas (Forlando’s aunt) and a photographer and an interviewer at the home. Russell Bauknight’s wife was inside, taking notes on things in the home. I don’t understand how he can look my father and me in the eye,” Forlando said.



Bauknight does not know enough about the music business to capitalize on income opportunities for the estate, Forlando said, and he does not know how to market his grandfather’s music and image.



Forlando believes his grandfather’s estate was worth at least $100 million, and he knows that assistant AG Sonny Jones was aware of an offer to purchase the music empire for that amount. In filings with the IRS, however, Bauknight now alleges that Brown’s music empire was worth less than $4.7 million at his death, even though it was earning $4-5 million annually in royalties.



“They are using a low value to hide the damage they have done to the estate,” Forlando said.



It is because of a lesson from his grandfather that Forlando is now pursuing new legal representation. “My lawyers refused to do anything about what had been done, but I learned from my grandfather you can change things, if that’s what’s in your heart. I take it personally that my lawyers, Russell Bauknight, my aunts and uncles, and the Attorney Generals are not doing what my grandfather wanted,” Forlando said.



There is a recording made by James Brown in which he discusses his will and Trust. “I intend to use every outlet I can to reveal the recording he made about what he wanted his will and Trust to do. I intend to fight every day, and I am now seeking new attorneys to help,” Forlando said.



Because Buchanan and Pope have fought so vigorously to defend his grandfather’s estate plan, Forlando feels he has moved on since filing the lawsuit against them. “I’d like my new lawyers to settle with Buchanan and Pope. I’ve moved on.”



He has pledged to keep fighting for what’s right for children. “I don’t agree with many of the things Buchanan and Pope did, but they’re right when they say: the five children who contested the will should receive nothing under the In Terrorem clauses of the will and trust; the Brown estate needs to be run properly so that needy children can be given the education funds my grandfather intended; the Attorney General (AG) had no right to appoint Russell Bauknight trustee; and the AG--who was entrusted to protect this for children—should never have been allowed to give away over half to those who may not be legitimate parties.”













Before a settlement, it should have been determined who Brown’s children were under the DNA protocol—and the status of his alleged “wife,” who was already married when she exchanged vows with Brown.



“I did not get along with Buchanan and Pope, and it’s something big when these two parties can come together to say this is wrong,” Forlando said. “I strongly agree with them in their effort to remove Russell Bauknight, to get discovery done, and to get the children DNA tested.”



In a filed response to the motion made by Forlando’s counsel to withdraw, Pope agreed that former Chief Justice Finney and the Finney firm should be unconditionally relieved as counsel because they are not involved in the State court cases. Pope asserted, however, that Forlando’s motion comes more than two years after he knew Bell and Bryan Cave had a conflict in representing him. While opposing the McMaster settlement on behalf of Forlando, Bell and Bryan Cave were simulatenously arguing on behalf of Forlando’s father Terry to dismantle Brown’s estate plan. Pope’s motion asks the Court to retain jurisdiction over Bell and the Bryan Cave lawyers.



Since Brown’s death on Christmas Day 2006, Bryan Cave has also represented Brown’s original trustees, Albert “Buddy” Dallas and David Cannon, who was recently sentenced for taking millions of dollars from Brown.



This is not Forlando’s first dramatic firing of legal counsel. In March of 2007, he, his father, and his brother fired the firm of Atlanta lawyer Lewis Levenson. The following year Forlando sought to prevent Levenson from representing family members who challenged Brown’s estate plan.



“This is about greedy family members who want something they are not entitled to. If his name was James Thurmond, we wouldn’t be having this discussion,” Forlando said.



The law firms of Finney, Bryan Cave, and David Bell were contacted Thursday afternoon for comment, but no one returned calls. David Black of the Columbia law firm Nexsen Pruet, who represents current trustee Bauknight, was asked by email on Friday to answer questions related to the Forlando interview, including: why were Forlando and his father not granted access to James Brown’s home; how much does Black expect to be paid for representing Bauknight, and how much has he billed the estate/Trust thus far; what percentage does Inaudible Productions receive related to James Brown’s music and image.



Black did not respond.









James Brown Grandson Ordered To Attend Status Conference After Firing Legal Team



By Sue Summer

For The Newberry Observer Dec. 7, 2011





In an order issued Dec. 5 by U.S. District Judge William Bertelsman, the grandson of music icon James Brown was ordered to appear on Dec. 15 for a status conference related to his lawsuit against Newberry resident Adele Pope.



In 2008 Forlando Brown sought to enjoin Pope and Aiken attorney Robert Buchanan from acting as trustees of James Brown’s Irrevocable Trust, alleging they were illegally appointed on Nov. 20, 2007, and would not protect Brown’s estate plan from disinherited relatives.



Two weeks ago Forlando fired his entire legal team because he felt they were not working hard enough to defend his grandfather’s estate plan, which directed his entire music empire to be used for educating needy students in South Carolina and Georgia.



Even though Forlando’s lawsuit alleges Buchanan and Pope would not defend the estate plan, since that time they have “vigorously” defended the Will and Trust against challenges from disinherited, claimed relatives. On Nov. 1, the S.C. Supreme Court heard arguments in the Buchanan/Pope appeal of a settlement deal between former Attorney General (AG) Henry McMaster and people Brown specifically disinherited—a deal that gave them over half of the assets Brown intended to benefit needy students. Essentially, the deal cut by McMaster dismantled James Brown’s estate plan.



Before settling with parties that Forlando characterized in a recent telephone interview as “greedy family members who want something they are not entitled to,” the AG’s office did not conduct an investigation as to the strength of their claim that Brown had been “unduly influenced” in writing his Will and Trust, according to an admission to the Supreme Court by assistant AG Sonny Jones.



The AG’s office also failed to determine whether claimants were in fact family members by failing to require that they participate in the DNA protocol. The AG’s office further failed to protect the estate plan by not enforcing its In Terrorem clauses, which means those who contest the Will inherit nothing.



Forlando now agrees that Buchanan and Pope are working to uphold his grandfather’s estate plan, and he has stated that he would like to settle the lawsuit against them. He is looking for new legal counsel, and in a last week’s telephone interview, he said he was being guided in this process by John Sparks in Atlanta.



“He is helping me find the right counsel because he understands what is at stake,” Forlando said.



Exactly how much is at stake remains in controversy. Forlando believes the music empire was worth about $100 million at his grandfather’s death because in 2007 an offer was made to purchase the assets for that amount. Current trustee Russell Bauknight, however, has filed documents with the Internal Revenue Service that allege the value is less than $4.7 million.



Under the McMaster deal, Forlando’s father Terry was given the right to purchase the music assets, but Forlando emphasized: his father did not contest the will.



“After my father refused to join the fight (to contest the will and trust), they called us to South Carolina, to the Attorney General’s office. They said they could settle without us, and they’d make sure we got nothing. We were given an ultimatum,” Forlando said.



His father’s interest was to move the estate to capable management by someone who understands the music business, Forlando said.



The two of them are working on a biography of James Brown that reveals his childhood hardships. “We want to tell the story, to encourage needy children: they can succeed, too. He left them that opportunity.”



The status conference in the Brown v. Pope lawsuit will be held in Charleston before U.S. District Judge William O. Bertelsman of Kentucky on Dec. 15.







Goliaths Roar in James Brown FOIA Lawsuit; David Asks, ‘What Is AG Alan Wilson Hiding?’

(Revision based on telephone interview with Forlando Brown on Saturday afternoon)



By Sue Summer

For the Newberry Observer Dec. 11, 2011



In a July 15 letter, Columbia attorney David Black of the mega-firm Nexsen/Pruet issued a threat to Newberry resident Adele Pope. If she continued to file requests for documents and information under the Freedom of Information Act (FOIA), he would file an action to have her sanctioned.



On Friday afternoon, Black followed up on that threat through one of his clients, the current trustee of the James Brown trust, Columbia C.P.A. Russell Bauknight.



Mark Gende of the large Columbia law firm Sweeny, Wingate and Barrow filed the motion in the Newberry Courthouse, asking for sanctions against Pope and “other relief the Court deems just and reasonable.”



In this action, Gende is representing Bauknight, as well as other private parties that he requested be added as defendants in Pope’s FOIA lawsuit against Attorney General (AG) Alan Wilson, which seeks the release of the contingency fee contract between former AG Henry McMaster and the Wingate firm.



Under the contract, the State of South Carolina, Bauknight, and 13 disinherited, claimed relatives of James Brown are suing Pope and Aiken attorney Robert Buchanan, asserting that they caused tens of millions of dollars in damages to Brown’s assets while serving as trustees from Nov. 2007 to May 2009.



Ironically, the AG’s office has since agreed to filings by Bauknight to the Internal Revenue Service that the entire Brown music empire was worth a mere $4.7 million at his death in 2006, even though it was bringing in about $4-5 million in royalties every year.



The legal Goliaths of Nexsen/Pruet and Sweeny, Wingate and Barrow filed the motion for sanctions in their continuing effort to block the release of the contingency fee contract under which McMaster engaged the Wingate law firm to sue Pope and Buchanan for their “vigorous” defense of James Brown’s estate plan. As part of that defense, Pope and Buchanan appealed to the S.C. Supreme Court a settlement deal cut by McMaster that essentially dismantles Brown’s estate plan. The McMaster deal gives away over half of what Brown intended to be used for the education of poor children to claimed relatives that Brown intentionally disinherited.



After months of having her FOIA requests for the contract dodged by Wilson’s office, Pope filed an FOIA lawsuit in August. The suit names only Wilson as a defendant, but at a hearing in November, Gende asked that his private clients—including Bauknight and the claimed relatives—be added as defendants.



The FOIA is intended to grant every citizen access to public documents and government business, and as a public official, Wilson would be subject to the FOIA law. None of Wingate’s individual clients are public bodies, however, and Pope had not requested documents or information from them.



All of the AG’s contingency fee contracts contain language that confirms they are public documents. AG Wilson has released other contracts on his website, and through his assistant Sonny Jones, Wilson has confirmed that the McMaster/Wingate contract is also a public document. The AG’s office has not responded to the emailed question: is the McMaster/Wingate contract the only contract not released by Wilson?



Judge Frank Addy declined to rule on whether the private parties should be added as defendants in Pope’s FOIA lawsuit against AG Wilson, but he ordered the FOIA lawsuit to be consolidated with the McMaster/Wingate lawsuit against Buchanan/Pope in Richland County.



In Pope’s answer, she claimed Gende’s motion to add private plaintiffs to a lawsuit involving public documents was intended to delay the release of the contract and to deny her the exercise of her FOIA rights. The FOIA includes criminal penalties for violation of the law, a fine of no more $100 for first offense. Gende’s motion for sanctions and penalties asserts Pope has accused his private clients of criminal activity by advising the court that they are intentionally interfering with her FOIA rights.



In essence, Gende did exactly what Black threatened in July: he is attempting to have Pope sanctioned and penalized for attempting to exercise her rights under the FOIA.



Several affidavits of private citizens and journalists from Aiken, Newberry, and Lexington counties have been filed by Pope with a motion for Judge Addy to reconsider the consolidation of the FOIA and civil cases.



All affidavits emphasized the importance of protecting the public interest and keeping the FOIA strong. Several, including one filed by Debra Spence, widow of former Congressman Floyd Spence, asked the question: what is AG Wilson hiding. “I am concerned that AG Wilson’s refusal for more than four months to release a public document makes it appear that he is covering up an inappropriate or questionable agreement.”



Spence also asked the court to consider: Black, speaking for Bauknight, made “vicious statements about Mrs. Pope and Mr. Buchanan that were repeated in hundreds of media outlets.” At the Supreme Court hearing on Nov. 1, she said, “I heard another Nexsen Pruet lawyer and Mr. Jones from the AG’s office trying to justify to our Supreme Court why Henry McMaster gave away what was correctly described as Mr. Brown’s ‘noble estate plan.’ Since then, AG Wilson’s refusal to release the McMaster contract has focused my attention on other troublesome things McMaster did – or is said to have done – in connection with Brown’s estate and trust, and I believe the public has a right to learn what really happened.”



Other affidavits in support of the FOIA, not all of them filed, include those from: journalist Vic MacDonald, whose pursuit of documents while editor of the Newberry Observer led to a Reid Montgomery press award for protecting the FOIA; copyright expert Jeff Smith, who has written an article for publication on the copyright issues related to the James Brown estate; and this reporter, who has requested the McMaster/Wingate contract at least six times by telephone, email, and as of last week, by certified mail. The FOIA requires a response in 15 working days.



In Pope’s affidavit, she states there is no basis under the law for any of Gende’s private clients to enter a FOIA lawsuit against a public official, and that Gende’s motion was intended to cause “delay and denial” of her rights. She said the contract should be released because it is a public document that could determine: a) whether any public purpose is being served; b) whether the AG has proposed an illegal fee-sharing arrangement with individuals; c) whether the following provision, found in other contingency fee contracts, is appropriate: “(t)he AG shall retain 10 percent of Special Counsel’s fees awarded under this suit.”



In a telephone interview Saturday afternoon (Dec. 10), Brown’s grandson Forlando—whose father Terry Brown is named as a plaintiff in Gende’s motion to sanction Pope—said neither he nor his father knew about the motion until he received a draft of this story by email and was asked to comment. “I did not know my father was a party, and my father didn’t know it, either. There is something going on in South Carolina that people need to know about.”



Forlando said the attorneys involved in the Brown estate have been working to increase their fees, not to represent him: they would not even return his calls. Two weeks ago Forlando fired his entire legal team and will have new attorneys representing him at a Dec. 15 status conference before U.S. District Judge William O. Bertelsman of Kentucky. The conference relates to a 2008 lawsuit filed by Forlando against Pope and Buchanan that asserts they were illegally appointed and would not defend his grandfather’s estate plan.



Forlando reiterated that no one had discussed the motion for sanctions with his father. “My Dad didn’t know, and I didn’t know until I read your story.”



With the filing of the motion on Friday afternoon, the Goliath law firms have made good on the threat of July 15. They are asking for sanctions and penalties against a private citizen for exercising her rights under the FOIA.



The longer AG Wilson allows the Goliaths to pound David, the more it appears that he is hiding something. How big and how bad, or how small and innocuous, no one will know—until the document is released.























Sue Summer

1903 Main St.

Newberry, SC 29108

December 6, 2011

Attorney General Alan Wilson & Keeper of Records

Office of the S.C. Attorney General

PO Box 11549

Columbia, SC 29211

Re: FOIA Request (information previously requested six times by email and telephone calls with spokesperson Mark Plowden, including Sept. 20, Oct. 12, Oct. 13, Oct. 18, Oct. 20)

Under the Freedom of Information Act, I ask that I be provided the following information (including any emails that may be relevant) and documents related thereto:



1) The Sept. 22, 2011, letter to Judge Manning about the McMaster/Wingate contract to sue Pope/Buchanan was written by C.H. Jones Jr. Is he the attorney of record in this matter., and if not, why was he writing this letter?



2) The wording on the AG's website related to the release of contingency fee contracts, "except matters in which disclosure is currently under review by a court," raises a second question. The letter by C.H. Jones Jr. on behalf of AG Wilson was directed to Judge Manning and said that the AG's office is "ready and more than willing" to release the contract. Judge Manning did not issue a stay order, but it occurred to me: Has a stay order been issued regarding the contract in another court? If so, at whose request?



3) I am not an attorney, but I have read an affidavit filed Oct. 6 in Newberry, in which there is a mention that Ken Wingate requested the contract not be released. Since he is representing the AG's office and private plaintiffs in the James Brown lawsuit, was this request made at the AG's insistence or by the private plaintiffs? And if the AG's office wants to release the contract, would this not be a conflict of interest between the private plaintiffs and the State?



4) When other contracts were pulled for posting on the website, it must have been necessary to identify those "under review by a court" to withhold them. Therefore, the answer to the 4th question must be readily available, and I would appreciate a prompt response. Is the McMaster/Wingate contingency fee contract to sue Pope/Buchanan the only contract not released on the AG's website? If any others were withheld, please let know what contracts and in what court are they "under review."

5) I would appreciate being sent a copy of the McMaster/Wingate contact, now that Judge Manning has been assigned the case. (See transcript, discussion was about a stay until the case was assigned—not that I believe one was issued. In any case, the case has been assigned and the stay would be lifted.)

Because this information is in the public interest, I ask that any fees be waived.

Thank you for your prompt response,







Sue Summer















AG Wilson Attempts to Exclude Affidavit of Local Copyright Expert in James Brown FOIA Lawsuit



By Sue Summer

For the Newberry Observer 3 January 2012



As the new year appeared, so did more filings in the Newberry Freedom of Information Act (FOIA) lawsuit related to the James Brown estate, filed in August.



On Dec. 22, Attorney General (AG) Alan Wilson moved to strike an affidavit from local copyright expert, W. Jeffrey Smith, in support of releasing documents that reveal how the James Brown estate plan was dismantled by former Attorney General (AG) Henry McMaster in a settlement deal that gave away over half of Brown’s worldwide music empire to non-heirs and disinherited family.



In Smith’s affidavit and in an article he is writing, he sites one major failing of the McMaster deal was the fact that the AG’s office did not properly establish James Brown’s heirs for the purpose of the Federal Copyright Act. The Act grants limited future rights in certain of Brown’s more than 850 songs to heirs as determined under the Act.



Soon after Brown’s death on Christmas Day 2006, former Judge Rodney Peeples established a DNA protocol for the estate to determine who Brown’s heirs-at-death are—and are not. McMaster ignored the DNA protocol and three properly determined heirs in deciding which parties were to be included in his settlement deal.



Among the settling parties in dispute are Brown’s companion, Tommie Rae, who was married to another man at the time she exchanged vows with Brown, and her son. Tommie Rae refused to allow her son to take Peeple’s DNA test.



On Jan. 3, Newberry resident and former Brown trustee Adele Pope filed documents opposing the AG’s motion to strike Smith’s affidavit and article, as well as affidavits from others, including Deborah Spence, widow of former Congressman Floyd Spence, and this reporter. Pope also asked the Court to consider the affidavit of former Observer editor, Vic MacDonald, who won a press award for his vigorous defense of the FOIA.



Pope states that the firm of Columbia superlawyer Camden Lewis and his clients--Brown’s original trustees—“collected and agreed to make public the diary of Brown’s companion and other records confirming she was not Brown’s wife and had waived any claim to be his spouse or enjoy his property.” The original trustees also obtained Brown’s vasectomy records and sworn testimony that demonstrated Tommie Rae’s son was not likely Brown’s son.



The Lewis firm represented original trustees “Buddy” Dallas and David Cannon as fiduciaries only and did not assist them in filing a $10 million claim for commissions.



Smith’s affidavit included a draft of an article he is writing with Pope, “Private Foundations, Copyright Heirs and Musical Millionaires: Why The James Brown “I Feel Good” Trust Doesn’t….”



The article explains how the James Brown estate plan was dismantled by former AG McMaster, and it raises the question: what is the future of private philanthropy if an AG is allowed to rewrite at will an estate plan simply because it is challenged by disinherited relatives.



As a copyright expert, Smith wrote in his affidavit that the “intentional and/or reckless disregard for a proper determination of heirs-at-death was a primary factor in the destruction of what should have been the approximately $80 million James Brown ‘I Feel Good’ Foundation.”



He further stated “no expertise is needed to determine that Brown’s music empire--which earned at least $50 million between 1999 and Brown’s death in 2006--does have substantial intellectual property assets and was worth substantially more than $4.7 million when Brown died…”



Current trustee Russell Bauknight, who serves at the pleasure of AG Wilson, filed IRS documents that claim Brown’s worldwide music empire, including both the royalties and rights to exploit Brown’s image and persona, was worth less than $4.7 million at his death.



Former AG McMaster’s settlement deal gave Brown’s son Terry the right to purchase Brown’s music assets. Smith wrote, “The public needs to know about AG McMaster’s association with Terry Brown—whom he gave a right to buy Brown’s assets—and Terry’s law firm, Powell Goldstein, now Bryan Cave, and joint venturers Cannon, Dallas, son Forlando and TJBL, LLC.



According to other filings, TJBL, LLC attempted to buy Brown’s assets for $100 million in late 2007 and early 2008. In September of 2008, Forlando Brown, a principal in TJBL, asserted the assets were worth at least $150 million.



Pope’s affidavit states that the public has a right to learn about the role, if any, of the AG’s office “in Bauknight/Terry Brown’s manipulation of the value of Brown’s music empire.”



She states that the delivery of public documents at a minimum cost and delay is essential for FOIA compliance, and it is the right of individuals and the public under FOIA to receive the documents without regard to the use to be made of the documents.



In her affidavit, Pope states that the “State/Legacy Trust is represented by a seasoned Assistant Deputy AG and has authorized the Legacy Trust to engage a Superlawyer whose hourly rate in 2007 was $500 to fight release of public documents.”



The State has been fighting the release of public documents, including the McMaster-created Legacy Trust, for over six months, and the Trust has threatened Pope with sanctions for exercising her FOIA rights.



Pope’s affidavit states she believes the journalists’ affidavits should be considered in the FOIA lawsuit because they emphasize the importance to the press and to the public of swift and inexpensive compliance with the FOIA. The affidavits of lawmakers should be considered because they constitute expert opinions as to the FOIA’s role in open government.





###







WKDK



Judge Moves Venue from Newberry to Richland County in James Brown-related FOIA Lawsuit



On Wednesday afternoon Judge Frank Addy Jr. ruled that a Newberry Freedom of Information Act (FOIA) lawsuit should be moved to Richland County. The lawsuit was brought by former James Brown trustee Adele Pope, whose office and residence are located in Newberry—and it was from Newberry that she made her June FOIA request to obtain from Attorney General (AG) Alan Wilson a copy of the Legacy Trust.

The Legacy Trust was created by former AG Henry McMaster when he took control of the private assets of the James Brown music empire in a settlement deal with some of Brown’s children and his companion Tommie Rae. A clause in Brown’s will and trust said anyone who challenged the estate plan would receive nothing, but McMaster gave away over half of the assets Brown intended for education to those who made just such a challenge.

McMaster and his staff attorneys wrote the Trust document while on the State payroll, and its McMaster-appointed trustee now serves at the pleasure of AG Wilson.



-- Recording---

(Addy said he would be “very surprised” if another judge did not rule Pope was entitled to the document, and he hoped she would be given the document sooner, not later. He further stated he had consulted with other judges about the ruling.)



Addy said he had consulted with other judges, who had come to a “consensus” about the ruling, but no other judges were present in court or heard arguments in the case. It is not known whether they read affidavits filed in the case, several from local FOIA advocates in support of releasing the documents.











Former James Brown Trustee Asks Court to Take Control of Documents Requested Under FOIA



By Sue Summer

For Newberry Observer 8 January 2011





Newberry resident and former James Brown trustee, Adele Pope, filed an affidavit Friday (Jan. 6) in which she asked the Court to take custody of public documents requested from the office of the Attorney General (AG) under the South Carolina Freedom of Information Act (FOIA).



“I ask the Court to protect me under FOIA by taking immediate control of the original McMaster/Wingate contract to sue Buchanan/Pope…., which the AG’s office now admits is subject to disclosure,” the affidavit said.



Pope requested the contract in July, and when the request was denied, she filed suit in August.



The McMaster/Wingate contract was also the subject of an FOIA request filed for The Newberry Observer on Dec. 6, 2011. A response to the request, written by senior assistant AG Tracy Meyers, was received by email on Thursday.



Meyers wrote, “The document…consists of sixteen pages: a one-page letter from Attorney General McMaster to Russell Bauknight, three pages of a ‘draft’ ‘private’ ‘AGREEMENT FOR LEGAL SERVICES’ and an eleven-page unexecuted copy of the standard Attorney General ‘Litigation Retention Agreement for Special Counsel Appointed by the South Carolina Attorney General’…”



In a response letter Ms. Meyers was asked what the 16th page may be. Among the 15 pages she described, she did not mention a signed and executed contract. The Rules of Professional Conduct of the South Carolina Judicial Department state: “A contingent fee agreement shall be in writing signed by the client…”



In her letter, Meyers claims portions of the document are “private,” but the document in its entirety was created by former AG Henry McMaster and members of his staff, all of whom were being paid State tax dollars.



Meyers wrote she has notified attorneys in a Richland County civil case that she will provide The Observer with a copy of the the “public” portions of the contract on Jan. 20 unless a court places the document under seal or instructs her not to provide the information.



The Richland County civil case is the Wingate lawsuit against Buchanan/Pope, and no FOIA request has been made by the Observer in that case.



In the suit, Columbia attorney Kenneth Wingate represents current Brown trustee Bauknight and the McMaster-created Legacy Trust, the State of South Carolina, and several private clients--including some of James Brown’s disinherited children. The suit alleges Pope and Aiken attorney Robert Buchanan caused tens of millions of dollars in damages to the Brown estate and trust while serving as trustees from late 2007 to May 2009.



Bauknight has filed documents with the IRS, however, that claim the at-death value of Brown’s worldwide music empire was less than $4.7 million, even though the royalties and rights to Brown’s image were bringing in $4-5 million a year.



The FOIA deals with how the public can obtain copies of public documents and serves the public interest of transparency in government. Current AG Alan Wilson has advised public officials in South Carolina: “When in doubt, release the information.”



Music legend James Brown signed an estate plan that left his entire worldwide music empire for the purpose of educating needy and deserving students in South Carolina and Georgia through his “I Feel Good” private foundation. Six named children were left his household and personal effects, but after Brown’s death in 2006, they challenged his will and trust. Brown’s companion Tommie Rae Hynie also challenged the will and trust and claimed to be his wife, even though she was married to another man when she exchanged vows with Brown.



In Pope’s affidavit, she included a timeline of events related to her FOIA request. She claims in 2008-2009, former AG McMaster accepted big campaign contributions from lawyers who represented Brown’s son Terry and others. By 2009 McMaster had worked a settlement deal with those who challenged the will and trust, giving Brown’s companion and son Terry about 28 percent of Brown’s music empire. Son Terry was also given the right to buy Brown’s assets at “fair market value.”



Buchanan and Pope appealed the McMaster settlement deal, and in 2010 Tommie Rae’s attorney threatened to sue them if they did not drop the appeal.



In May of 2010, Wingate filed the suit against Buchanan/Pope, and in September of 2010, they filed a counterclaim.


(Sidebar)



Developing News: Two James Brown Hearings Scheduled For This Week



By Sue Summer

For The Newberry Observer January 8, 2012





Two hearings related to the James Brown trust and estate are scheduled for this week, one in Columbia on Tuesday and the other in Newberry on Wednesday.



On Tuesday the South Carolina Supreme Court will hear a civil appeal by original Brown trustee, felon David Cannon of Aiken. Cannon is currently under home confinement after entering an Alford plea in October, 2011, on charges of taking $12 million dollars and forging a compensation agreement with Brown.



The office of the Attorney General (AG) handled the prosecution but failed to seek restitution. Cannon is named as a witness for the State in a lawsuit against Adele Pope of Newberry and Robert Buchanan of Aiken, former Brown trustees.



Cannon’s appeal to the Supreme Court relates to an earlier proceeding in which Cannon served three months for contempt of court in 2008 after filing unauthorized tax returns for Brown and wiring $866,000 to Honduras for a retirement home, all the while declaring to Judge Doyet A. Early, III, that he lacked funds to return $900,000 he took from Brown’s trust in 2006.



According to the summary of the Cannon appeal on the Supreme Court website, Cannon contends that his obligation to pay attorneys’ fees became moot when he served his sentence for contempt. Cannon is represented by attorney Max Pickelsimer, formerly of Newberry.



Pope and Buchanan were named as respondents in the Cannon appeal and filed a brief in the case, opposing Cannon’s position and asking that he be required to reimburse the trust for attorney’s fees.



On Jan. 31, 2011—two weeks after leaving the AG’s office—Henry McMaster filed a motion to strike the Buchanan/Pope brief and asked the Court to sanction them for submitting it. The motion was filed not only by the AG’s office but also by attorneys representing: current Brown Trustee Russell Bauknight of Columbia, certain of James Brown’s disinherited children, his son Terry, his companion Tommie Rae Hynie, and the guardian for her minor child.



Several pages from the motion to strike were attached to an affidavit filed last week in Newberry. The affidavit relates to a Wednesday hearing before Judge Frank Addy Jr., in which he will hear motions in Pope’s FOIA lawsuit to obtain a copy of the Legacy Trust, created by McMaster to hold James Brown’s assets.



Bauknight was appointed trustee by McMaster and now serves at the pleasure of AG Alan Wilson. He has controlled Brown’s assets since May 2009. Pope’s FOIA lawsuit also seeks the AG’s documents related to Bauknight’s IRS filing that claims Brown’s music empire was valued at only $4.7 million when he died in 2006.



In their attempt to block Pope from receiving documents requested under the FOIA, Bauknight and the Legacy Trust are represented by Columbia attorneys A. Camden Lewis, who formerly represented original trustee David Cannon, and Kenneth Wingate, attorney for Brown’s companion Tommie Rae and others.



Pope has also requested under the FOIA a copy of the contingency fee contract between McMaster and Wingate under which Wingate is suing Pope and Buchanan on behalf of the State and private plaintiffs. The suit alleges Buchanan/Pope caused tens of millions of dollars in damages to Brown’s trust and estate while serving as trustees from late 2007 to May of 2009.



The Observer will be following both stories.











AG Wilson Wins Fight To Take Newberry FOIA Lawsuit To Richland



By Sue Summer

For the Newberry Observer January 12, 2012



On Wednesday afternoon Judge Frank Addy Jr. ruled that a Newberry Freedom of Information Act (FOIA) lawsuit should be moved to Richland County.



Former James Brown Trustee and Newberry resident Adele Pope brought the lawsuit in August after her June FOIA request for documents was denied by Attorney General (AG) Alan Wilson.



Pope’s office and residence are located in Newberry—and it was from Newberry that she made her request to obtain a copy of the Legacy Trust, as well as documents related to the at-death $4.7 million valuation of Brown’s music empire submitted to the IRS by current Brown trustee Russell Bauknight, a Columbia CPA.



The low valuation is being questioned by Pope, who reported in other legal filings that the music empire was bringing in about $4-5 million every year in royalties and the right to exploit Brown’s image.



The Legacy Trust was created by former AG Henry McMaster two years after Brown’s death, when he took control of the private assets of the James Brown music empire in a settlement deal with some of Brown’s children and his companion Tommie Rae. Brown’s will and trust included clauses that said anyone who challenged the estate plan would receive nothing, but McMaster gave away over half of the assets Brown intended for education to those who made just such a challenge.



McMaster and his staff attorneys wrote the Trust document while on the State payroll, and Bauknight, who was appointed by McMaster, now controls the trust at the pleasure of AG Wilson.



On Wednesday morning, Bauknight filed an affidavit that asserted the Legacy Trust is not a public body and a copy of the trust should not be released under the FOIA.



According to a May 16, 2006, legal opinion from then-AG McMaster: “Our Supreme Court, in the Weston case, as well as decisions in other jurisdictions, and our own opinions, have recognized that ‘indirect’ or ‘in kind’ public funding, such as by virtue of an entity’s use of public employees or governmental resources, is sufficient to invoke the FOIA.”



Emory Smith of the AG’s office argued that: 1) Newberry was not the proper venue for the hearing; 2) there was another legal action between the parties and Pope should try to obtain copies of the documents in discovery, not under the FOIA.



“The real controversy is in Richland County,” Smith said.



In Richland County, the State, the Legacy Trust, Brown’s companion Tommie Rae and some of his children are suing former Brown trustees, Pope and Aiken attorney Robert Buchanan, claiming they caused tens of millions of dollars in damages to the trust while serving as trustees for 18 months. The contingency fee contract under which McMaster hired Columbia attorney Kenneth Wingate to sue Buchanan/Pope was the subject of another FOIA lawsuit filed by Pope, a lawsuit that has also been moved to Richland County even though the request was filed in Newberry.



Adam Silvernail, Pope’s attorney, argued on Wednesday that being a litigant in another lawsuit gives Pope no more—but no fewer—rights under the FOIA than any other member of the public. “I don’t see any compelling reason to send this case to Richland County, where we have different parties and different attorneys. This case is about releasing public documents. The James Brown trust is a public body. This is a question the Richland County judge has no need to take up apart from this case.”



Smith argued, “Judge (Casey) Manning is the judge for this complex case.”



In ruling on the change of venue, Addy said, “I would be very surprised if another judge said you were not entitled to these documents.”



He also said Pope should be given the documents sooner, not later.



The decision was not his alone, he said. He said he had consulted with other judges, who had come to a “consensus” about the ruling.



No other judges were present in court or heard arguments in the case. It is not known whether they had read affidavits filed in the case, several from local journalists and others in support of releasing the documents, including: former Newberry Observer editor Vic MacDonald, writer Sue Summer, and copyright expert W. Jeffrey Smith.



Bauknight’s affidavit argued for not releasing the documents, even though he admitted he manages, controls and oversees the Legacy Trust, and that the AG’s office has a right to remove and replace him. He also wrote “the beneficiaries of the Legacy Trust—the James Brown Children, for example—also have the right to remove me….”



Before McMaster took control of Brown’s assets and rewrote his 2000 trust in a settlement deal with those who challenged Brown’s estate plan, Brown had given his entire music empire to the “I Feel Good” trust for needy and deserving students in South Carolina and Georgia. He also created a $2 million education trust for certain grandchildren.



If, as Bauknight claims in his affidavit, the Brown children are beneficiaries under the McMaster-created Legacy trust, that raises questions about the trust’s tax status. According to the IRS code: “To be tax-exempt under section 501(c)(3) of the Internal Revenue Code, … none of its earnings may inure to any private shareholder or individual… A private shareholder or individual is a person having a personal and private interest in the activities of the organization.”







Wilson’s Dodge of FOIA Suggests: Wingate Sued James Brown Trustees Without Valid Contract



By Sue Summer

For the Newberry Observer 21 January 2012



In September senior assistant Attorney General (AG) C.H. Jones wrote to a Richland County court that the AG’s office was “ready and more than willing” to release a copy of the contract under which Columbia attorney Kenneth Wingate is suing former James Brown trustees, Robert Buchanan of Aiken and Adele Pope of Newberry.



It now appears that there may be no contract.



On Dec. 6, a Freedom of Information Act (FOIA) request for the contract was filed on behalf of the Newberry Observer. In Friday’s response, senior assistant AG Tracy Meyers released an “unexecuted copy” of the AG’s standard “Litigation Retention Agreement” and a May 18, 2010, letter from AG Henry McMaster to current Brown trustee, Russell Bauknight of Columbia.



Missing from the documents was what Meyers described on Jan. 5 as a 3-page “draft” “Agreement for Legal Services,” which she claimed as “private” under 30-4-40(a)(2) of the FOIA.



The description of the agreement as a “draft” suggests it is not a valid contract. In any case, despite Meyers’ assertion, the document is arguably public under the FOIA because McMaster wrote the letter in his official capacity as AG, and Bauknight received the letter in his official capacity as trustee. Bauknight was appointed by McMaster and now serves at the pleasure of AG Alan Wilson.



In the May 18, 2010, letter to Bauknight, McMaster references a conversation with attorneys in the Wingate firm about filing a lawsuit against Buchanan Pope: “I have met with Ken Wingate and Everett Kendall of Sweeny Wingate and Barrow … regarding the action to be filed against Adele J. Pope and Robert L. Buchanan… I am writing to confirm our understanding that you will be retaining Mr. Wingate and Mr. Kendall to file this action on behalf of the beneficiaries of the James Brown Estate and Trust...”



The letter is clear that Bauknight, not the AG’s office, is filing the lawsuit.



Only one day after McMaster wrote the letter, Wingate filed a Richland County lawsuit in which Bauknight asserted he was acting “on behalf of Henry Dargan McMaster in his capacity as Attorney General of South Carolina.” In addition to Bauknight’s assertion, McMaster is a named Plaintiff in the Wingate suit, “in his capacity as attorney general of the State of South Carolina.”



Wingate and members of his firm are the only attorneys of record in the lawsuit, which they brought on behalf of a dozen private plaintiffs, as well as purportedly AG McMaster and his agent, Bauknight.





In the letter, McMaster confirms that Bauknight has agreed to use the “terms and conditions” outlined in an attached “Agreement for Legal Services,” which “references and incorporates the AG’s standard Litigation Retention Agreement.”



The standard retention agreement for outside counsel includes the provision: “All pleadings, motions, briefs, formal documents and agreements must bear the signature of the AG or his designated assistant.”



No attorney general or assistant attorney general has signed or been named on any of the pleadings or motions in the case.



The AG’s standard retention agreement also requires compliance with the FOIA: “Special Counsel agrees to adhere to South Carolina’s Freedom of Information Act…This Agreement shall be considered a public document.”



In refusing to release the 3-page retention agreement, Meyers cited a provision of the FOIA that addresses "information of a personal nature where the public disclosure thereof would constitute unreasonable invasion of personal privacy."



In "Public Official's Guide to Compliance with South Carolina's Freedom of Information Act," the S.C. Press Association comments: "This is an often-abused area within the FOIA because it's made into an overly broad blanket to cover things that don't need covering. The personal privacy spoken of here involves the privacy of Joe Citizen, who deserves such protection. Public officials, in whom trust is an important factor, are held to higher standards..."



In an emailed response to Meyers, sent Saturday, was a request for further clarification of the documents released: “Please confirm whether there is or is not a valid contract between the State and the Wingate firm that authorizes Bauknight to sue on behalf of the State.”



James Brown’s estate plan left his personal and household effects to six named children, and he intended his music empire to be used for the education of needy and deserving students in South Carolina and Georgia. Buchanan and Pope were appointed personal representatives of James Brown estate, and as directed by the will and trust, vigorously defended the estate plan by appealing a McMaster settlement deal that gave away over half of Brown’s music empire to those who challenged his Brown’s estate plan, described in a Supreme Court hearing as “noble.”



Documents related to the FOIA request and response, as well as to filings in the lawsuit, are posted on the Facebook page: James Brown "I Feel Good" Trust (FOIA Concerns).





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Search for James Brown’s Missing Millions Returns to Aiken



By Sue Summer

For the Newberry Observer 23 February 2012



On Wednesday, Feb. 29, an attempt will be made to recover between $12 and $17 million taken from entertainment icon James Brown by accountant David Cannon, one of three original trustees of Brown’s estate.



The hearing will be held in Aiken, where the litigation involving James Brown’s estate began five years ago.



Brown’s 2000 estate plan gave his personal and household effects to six named children, and he left his entire $100 million music empire for educating needy and deserving children in South Carolina and Georgia. Several of Brown’s children, as well as his companion, challenged the estate plan—and questioned the financial management of the original trustees.



Three of his children—Deanna Brown, Dr. Yamma Brown, and Daryl Brown—filed affidavits shortly after Brown died on Christmas Day, 2006. In the affidavits, the children claim that Cannon and co-trustees, Albert Dallas and Al Bradley, know where money was buried on Brown’s 100-acre estate in Beech Island and hidden elsewhere.



At a hearing in February of 2007, the three children (and others) asked Circuit Judge Doyet A. Early III to prevent Cannon and others from escaping with the missing assets.



Five years later, the missing millions have still not been recovered.



At the 2007 hearing, retired Judge Rodney Peeples, one of more than 10 prominent lawyers Cannon has hired since Brown’s death, spoke of Brown’s worldwide popularity. Peeples said Brown earned $1 million a week during the three weeks he toured Japan each year. He further argued there was no basis for Judge Early to restrain Cannon, whom he described as a trusted friend that Brown wanted to manage his “I Feel Good” trust for needy students.



Brown’s estate plan left his entire worldwide music empire to the trust, and the plan also provided $285,000 in education funds for the children of Deanna, Yamma and Daryl.



Almost as Peeples was speaking, Cannon was purchasing the lot for his million-dollar retirement home on the exclusive Carribean island of Roatan.



Newberry attorney Adele Pope and Aiken attorney Bob Buchanan were appointed in 2007 to oversee Cannon, and before they were replaced in 2009, Pope and Buchanan discovered financial documents that showed Cannon had been stealing from Brown since long before his death.





In this week’s hearing on Feb. 29, Pope will once again ask Judge Early to help recover the missing $17 million before Cannon retires to Honduras.



Four years ago, all three of the original trustees—including Cannon—filed cases to be paid a total of more than $15 million in commissions from Brown’s estate. These claims, filed in early 2008, have been inactive for years.



In various filings since December, Pope has asserted that Cannon’s claim is frivolous and all the cases should be concluded. She asserts that dismissing Cannon’s claim would help the Estate to recover the money Cannon took.



Even Brown’s acknowledged children--who are fighting Pope and Buchanan in the South Carolina Supreme Court over a settlement deal that gives them and Brown’s companion more than half of the assets of Brown’s “I Feel Good” trust--have made public statements suggesting they agree with Pope about what should happen with Cannon.



In October of 2011, Cannon entered an Alford plea related to a portion of the funds he had taken and was sentenced to 20 months of home confinement. No restitution was sought by the office of the South Carolina Attorney General (AG), which handled the plea.



In response to Cannon’s light sentence, Deanna Brown told WRDW-TV in Augusta that “a true injustice has been done.” According to Deanna, “there was thievery and there was debt.”



Pope agrees. In her pleadings, she asserts: Cannon’s house arrest will pass quickly; he is a master of deception and delay; and that the missing $17 million may be lost entirely if recovery efforts do not proceed now.



A SLED report filed at Cannon’s plea hearing confirms that Cannon managed the more than $79 million that Brown brought in between 1999 and 2006, including more than $9 million in the year Brown died. None of the $79 million was in his trust or the estate at Brown’s death.



The SLED report says Cannon took about $12 million. Pope’s filings assert, however, that the total is closer to $17 million because SLED failed to find Cannon’s infamous 1999 “$5 million check to nobody,” which Cannon cashed and kept. Brown was apparently unaware of Cannon’s takings.



By Pope’s calculations, Cannon ended up with about $15 million of a $26 million royalties-backed loan that Brown obtained from the New York Teachers (“TIAA”) in 1999.



Brown, known as the “hardest working man in show business,” spent the next seven years reducing the loan with his royalties. It was paid off in October 2011.



When Cannon resigned as Brown’s trustee in August 2007, he returned $350,000 of the missing $17 million. Other than that, nothing has been recovered from any of the original trustees.



Pope’s filings also assert that Cannon failed to properly report and pay Brown’s taxes, which he was obligated to do as part of his agreement with Brown. Cannon also did not report most of the takings on his own tax returns.



In the three years since Pope and Buchanan were replaced as trustees, nothing has been done to advance the recovery of stolen funds. When Cannon entered his Alford plea, the AG’s office could have asked for restitution but did not. When Pope tried to support restitution with a victim’s statement, the AG’s office did not file the statement with the Court.



Pope’s motion to intervene in Cannon’s case, in which she asks that Cannon’s request for an additional $5 million be dismissed, has also met with resistance from the AG’s office. On Jan. 27, assistant AG “Sonny” Jones sent an email to Judge Early in which he said: “The Attorney General does not believe that the Motion(s) to Intervene needs to be heard at this time…”



After Pope’s filing, Max Pickelsimer, Cannon’s attorney in other matters, said that Cannon intended to file a stipulation of dismissal of his $5 million claim against the Brown estate.



As of Feb. 23, Cannon had not filed to dismiss the claim.



Resigned trustee Al Bradley, whose $5 million claim is also pending, died in 2010. His estate inventory does not list the claim as an asset.



Resigned trustee Albert “Buddy” Dallas filed bankruptcy in Georgia in 2010, listing his $6 million commission claim against the Brown estate as his primary asset. According to Pope’s filings, in Sept. 2011, the bankruptcy judge in the Dallas case ordered that his $6 million claim be heard in Aiken.



Pope and Buchanan replaced Cannon, Dallas and Bradley as Brown’s trustees in November 2007. They were followed by Columbia C.P.A. Russell Bauknight, who was appointed in a 2009 settlement deal brokered by then AG Henry McMaster. The deal gave over half of Brown’s “I Feel Good” trust to disinherited, claimed relatives.



Pope and Buchanan have appealed the settlement to the S.C. Supreme Court. Arguments were heard Nov. 1, 2011, but no opinion has been issued.



Pope asserts that Cannon’s commission claim should be dismissed so that Brown’s estate can proceed against Cannon for the $17 million that may be hidden locally or invested by Cannon in Honduras.



The SLED report confirms that Brown told associates Cannon was investing for him in Honduras.



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Recovery of James Brown’s Missing Millions Delayed By AG, Outside Parties



By Sue Summer

For The Newberry Observer 1 March 2012





An Aiken hearing related to the estate of music icon James Brown, scheduled for Feb. 29, is being rescheduled at the request of those who are not parties in the case.



Attorneys for some of the Brown children and companion Tomi Rae Hynie asked Judge Doyet Early III to reschedule because they had conflicts.



Earlier, the Office of the Attorney General also stated that the hearing should not proceed. On Jan. 27, assistant Attorney General (AG) “Sonny” Jones sent an email to the Judge: “The Attorney General does not believe that the Motion(s) to Intervene needs to be heard at this time…”



The Aiken case is related to claims by the three original Brown trustees for more than $15 million in commissions, and the motion to intervene was filed in January by Newberry resident Adele Pope.



Pope and Aiken attorney Robert Buchanan, while serving as Brown trustees from late 2007 to May 2009, discovered financial irregularities that indicated original trustee David Cannon had taken millions of dollars from James Brown, both before and after his death.



In October 2011, Cannon entered a plea on $12 million of the missing $17 million, and he was sentenced to 20 months home confinement. The AG’s office handled the prosecution and did not request restitution, even though Cannon had purchased a million-dollar retirement home in Honduras with Brown’s money.



On top of the $17 million, Cannon’s lawsuit—pending for four years—claims that he should be paid an additional $5 million for his service as a Brown trustee.



In 2008 Pope and Buchanan sought to have Cannon’s claim for additional payment dismissed. In 2009 they were replaced by current trustee Russell Bauknight, and since then nothing has been done to eliminate Cannon’s claim or to advance the recovery of stolen funds.



When the motion to intervene in Cannon’s case was filed, Max Pickelsimer, Cannon’s attorney in other matters, said Cannon intended to withdraw his $5 million claim against the Brown estate, but as of March 1, no such filing had been made.



Soon after Brown’s death on Christmas Day of 2006, three of Brown’s children filed affidavits in which they claimed the original trustees knew where Brown had hidden assets, perhaps buried on the property of his Beech Island home.



Pope’s motion to intervene said that the missing millions should be located now, before Cannon has an opportunity to flee to Honduras.



In response to Cannon’s light sentence with no restitution, Brown’s daughter Deanna told WRDW-TV in Augusta: “a true injustice has been done…there was thievery and there was debt.”



The missing assets were stolen from Brown’s “noble” estate plan.



In his will and trust, Brown made clear his intentions. He gave personal and household effects to several named children, but he wanted his worldwide music empire to fund educational opportunities for poor children in South Carolina and Georgia. The will and trust included clauses that said: anyone who challenged the will or trust was to receive nothing.



Former AG Henry McMaster, however, completely rewrote Brown’s estate plan and gave away over half of Brown’s music empire to those Brown intentionally disinherited: one-quarter to six named children; and one-quarter to companion Tomi Rae Hynie, who was married to another man when she and Brown exchanged vows.



A long-time friend of Brown’s has questioned whether the AG’s office conducted a thorough investigation prior to making the settlement deal, claiming that Hynie should not receive a widow’s portion of the estate because she and Brown were not married.



The friend said Hynie’s “explosive” diary gave the AG’s office ample evidence to exclude her from the deal. “Her diary tells—in her own handwriting—how she pleaded and begged for James Brown to marry her. Why would she be doing that if she thought she was already married to him?”



Copies of the Hynie diary were available to all parties early in the Brown estate case, but Judge Early ordered the copies returned and given over to Hynie’s attorney.



Buchanan and Pope have appealed the McMaster settlement deal, and arguments were heard in the case before the S.C. Supreme Court on Nov. 1. No decision has been released.



After the appeal was filed, Buchanan and Pope were sued by current trustee Bauknight, the AG’s office, and several of Brown’s children. The suit, filed by Columbia attorney Kenneth Wingate, alleges “tens of millions” of dollars in damages were caused to the trust and estate while Buchanan and Pope served as trustees.



The AG’s Office has stonewalled the Observer’s requests under the Freedom of Information Act (FOIA) for a copy of the McMaster/Wingate “contract” to sue Buchanan/Pope, even though: the AG is listed as a Plaintiff; the contract was negotiated by employees of the AG’s office, being paid with taxpayer dollars; the suit was filed by a trustee who serves at the AG’s pleasure; the contract itself includes a clause that states the document is public and falls under the FOIA.



There is some question whether the contingency contract is signed, as required by ethics rulings of the S.C. Supreme Court.



The AG’s office claims it does not have to release the document because private parties are involved.



David Cannon’s name appears on Wingate’s witness list in the suit filed against Buchanan and Pope.





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AG Wilson Continues Battle To Conceal James Brown Documents and Deny FOIA Requests



By Sue Summer

For The Newberry Observer 21 March 2012





The Freedom of Information Act (FOIA) requires every public official to release public documents within 15 business days of an FOIA request. The government official is required by law to comply, whether the request is made by the press or by the public. The office of the Attorney General (AG) has the responsibility of enforcing the law.



Ironically, it is that very office which has fought for eight months to dodge and delay every FOIA request submitted by Newberry resident and former James Brown trustee Adele Pope.



Among the FOIA requests Pope filed last summer with the AG’s office:



1) Pope asked for a copy of the Legacy Trust. This is the trust created by former AG Henry McMaster when he took over Brown’s $100 million music empire in the 2009 settlement deal with six of Brown’s alleged children and his companion, Tomi Rae Hynie.



2) Pope requested documents related to why the Legacy Trust trustee, who was appointed by McMaster and serves at Wilson’s pleasure, valued the music empire of legend James Brown at less than $4.7 million upon his death on Dec. 25, 2006. (For several years, Brown had earned royalties of $4-5 million a year.)



When Pope’s requests were denied by the AG’s office, in August she filed FOIA lawsuits in Newberry County over these and other requests.



In the filings and pleadings that followed, AG Wilson’s legal posturing has taken many forms —and along the way, many troubling questions about the strength of the FOIA in South Carolina have surfaced.



To avoid release of the James Brown documents:



• The AG claimed Newberry was not an appropriate place for Pope to bring suit, even though the AG is a state-wide elected official.



• The AG claimed that documents created by former AG Henry McMaster and his staff are “private,” even though all were being paid with taxpayer dollars while writing them.



• The AG claimed he wanted to release certain documents, but he could not because a judge had issued a stay. When the judge’s written order was issued with no mention of the alleged “stay,” Wilson still refused to release the documents.



• The AG claimed that because Pope was involved in litigation, she should gain access to documents using discovery, not the FOIA—suggesting that when people are sued, they lose their FOIA rights.



• The AG claimed that private plaintiffs in other litigation should be allowed to join Pope’s FOIA lawsuit as defendants, even though the FOIA deals with only public officials and public documents.



• In a January court hearing, Columbia attorney Mark Gende of the Wingate firm asked that his private clients be allowed to join the FOIA lawsuit, even though none of them is a public official and nothing had been requested of them. Gende’s clients include Brown’s companion Tomi Rae Hynie and his son Terry, who was given the right to purchase Brown’s music empire by AG McMaster.



• The AG filed a motion in February that Pope’s FOIA lawsuit should be consolidated with Gende’s Richland County lawsuit in which the AG’s office and private plaintiffs are suing Pope and Buchanan for tens of millions of dollars. If the consolidation proceeds, it would then become possible for Wilson to withhold the documents, arguing private parties are not bound by the FOIA.



The consolidation of a private tort suit with an FOIA case is unprecedented, and on March 14 Pope’s attorney, Adam Silvernail of Columbia, filed a brief in opposition.



“Because the sole purpose of the FOIA is allowing the media and public at large to have immediate access to documents, the process of consolidation itself would serve to delay and defeat the purpose of the FOIA,” said the brief.



According to the brief, “This case…seeks a small number of significant public documents from Defendants, as well as confirmation that Defendant Legacy Trust is a public body.”



The AG’s office has argued that the Legacy Trust is not a public document, even though it was created by former AG McMaster and his staff, all of whom were being paid by taxpayers.



Gende’s case in Richland County is complex, and after two years, no plaintiff has agreed to be deposed. According to the Silvernail brief, the case may not be heard for another two years.



The lawsuit involves the service of Pope and Aiken attorney Robert Buchanan, trustees from late 2007 to 2009. They vigorously defended Brown’s estate plan, which left his music empire to the “I Feel Good Trust” for the charitable purpose of educating needy children, and they have appealed the settlement deal that gives away over half of Brown’s music empire to those he specifically excluded from inheriting.







The FOIA lawsuit, on the other hand, deals with questions that can be decided immediately and without a jury: 1) Must the organizational document of an entity created by the AG be released? 2) Must the AG’s office produce public documents related to the $4.7 million at-death valuation of Brown’s music empire, as represented to the S.C. Supreme Court?



The FOIA case is ready for a final hearing, according to the brief, but Case 4900 is “mired” in discovery and other issues. Consolidation would only serve to delay further the release of the documents.



The brief argued that the AG’s attempt to consolidate the cases raises important questions: 1) Would the AG support other South Carolina officials if they were to intervene as individuals in FOIA litigation, thereby limiting public access to documents that may prove personally or professionally embarrassing? 2) Will journalists who request public documents related to ongoing litigation be forced into tort actions to fight private parties, many of whom have no obligations under the FOIA?



The AG’s office has stonewalled not only Pope’s requests for documents, but also requests filed under the FOIA by the Newberry Observer.



A December request for a copy of the McMaster/Wingate contract, under which Pope and Buchanan are being sued in Richland County, was denied by Tracy Meyers of the AG’s office.



A Feb. 3 request for a copy of the Legacy Trust has received no reply, even though the 15 business days allowed by FOIA have long since passed. Repeated reminder emails to the AG’s spokesperson, Mark Plowden, have likewise received no reply.



A March 1 request for a copy of Tomi Rae Hynie’s diary has not received a reply, due March 23.



Hynie’s diary is also the subject of an Aiken lawsuit and is said to be “explosive” by a long-time friend of James Brown. The diary is purported to contain passages in which Hynie recounts that she begged Brown to marry her. If so, the diary could provide important evidence that she was not his wife, she knew she was not his wife--and she should not be part of the settlement deal.



According to the South Carolina Press Association “Citizen’s Guide to S.C.’s FOIA,” openness in government is important “because it allows the public to learn about the performance of public officials and the expenditure of public funds.”



A report on “corruption risk” by the Center for Public Integrity and Global Integrity, a nonpartisan good-government group, recently ranked South Carolina fifth in the nation.

According to the State newspaper, the report said: “There is no agency that enforces the Freedom of Information law or monitors the state government’s compliance with it. There is also no appeal process, relegating to the courts any problem a member of the public or press experiences in obtaining public information.”



Still, not even the courts can fulfill FOIA’s promise of prompt access to documents…when the agency responsible for enforcing the law is very agency dodging the law.



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