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Case 22-1426, Document 78, 06/29/2023, 3536039, Page49 of 217
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Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 303 of 348

attend the hearing. In his affidavit, Edwards asserted, “[T]here was no possible way I could have
believed that this state plea could affect the federal investigation or the rights of my clients in that
federal investigation.”

In Wild, the Eleventh Circuit panel stated that the government “seemingly” deferred to
Epstein’s attorneys’ requests not to notify the victims about the NPA, and that in sending the
January and May 2008 FBI letters, the government’s efforts “seem to have graduated from passive
nondisclosure to (or at least close to) active misrepresentation.”437 Although both the appellate
court and district court focused on the FBI’s letters for which OPR concludes that neither Villafaña,
Sloman, nor Acosta was responsible, OPR considered the courts’ analyses in evaluating whether
similar representations Villafaña made to the victims whom she interviewed on January 31 and
February 1, 2008, and to Edwards, were misleading. Therefore, OPR considered whether
Villafaña’s statements that the matter was “under investigation” and her failure to inform all of the
victims whom she interviewed or Edwards about the NPA violated FRPC 4-4.1(a), 4-8.4(c), or
4-8.4(d).

FRPC 4-4.1(a) prohibits an attorney from “knowingly mak[ing] a false statement of
material fact or law to a third person” during the representation of a client. The FRPC defines
“knowingly” as “denot[ing] actual knowledge of the fact in question” and states that such
knowledge may be “inferred from circumstances.”438 The comment to FRPC 4-4.1 states that
“[m]isrepresentations can also occur by partially true but misleading statements or omissions that
are the equivalent of affirmative false statements.” The comment references FRPC 4-8.4 “[f]or
dishonest conduct that does not amount to a false statement.” Like FRPC 4-4.1(a), Rule 4-8.4(c)
requires evidence that the attorney knew the statement in question was false. Under FRPC
4-8.4(c), the intent requirement can be satisfied “merely by showing that the conduct was
deliberate or knowing” and the “motive underlying the lawyer’s conduct is not determinative;
instead the issue is whether he or she purposefully acted.”439 In Feinberg, the court concluded that
the prosecutor violated FRPC 4-4.1 and 4-8.4(c) and (d) by deliberately making untruthful
statements to a defense attorney, despite evidence that the prosecutor intended to help the
defendant by making the statements.440 In this case, Villafaña was fully aware of the signed NPA
when she interviewed the victims on January 31 and February 1, 2008, and when she spoke to
Edwards on the telephone, but she did not inform them specifically of the signed NPA. The
question is whether this omission amounted to a knowing false statement or misrepresentation.

One difficulty is determining what Villafaña actually said during conversations that
participants were asked to recall many years later. With respect to three of the victims whom she
interviewed in January and February 2008, Villafaña contended that she discussed the agreement
with them, even if she did not specifically refer to it as the NPA or discuss all of its terms, and as

437 Wild, 955 F.3d at 1199-1200.
438 See R. Regulating Fla. Bar 4-Preamble: A Lawyer’s Responsibilities, “Terminology.”
439 Florida Bar v. Schwartz, 284 So. 3d 393, 396 (Fla. 2019) (citing Florida Bar v. Berthiaume, 78 So. 3d 503,
510 n.2 (Fla. 2011); Florida Bar v. Riggs, 944 So. 2d 167, 171 (Fla. 2006); Florida Bar v. Smith, 866 So. 2d 41, 46
(Fla. 2004)).
440 Florida Bar v. Feinberg, 760 So. 2d 933, 937-38 (Fla. 2000).

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