An attorney who was removed from the Davis School District funds-scandal case due to conflicts of interest is asking a higher federal court to overturn the decision and put him back on the case.

Earlier this month, U.S. Magistrate Judge Brooke Wells ordered attorney Paul Gotay removed from representing John and Susan Ross, who both have been indicted on charges that they embezzled $4.3 million in Title I federal education funds from the Davis School District. Gotay is now asking U.S. District Judge Dee Benson to review that decision.

Federal prosecutors sought Gotay's removal from the case, pointing to real and potential conflicts of interest. They say because Gotay also represents the owners of Research & Development Consultants, which prosecutors claim worked with the Rosses in the alleged scheme, Gotay could run into a conflict if R&D owners are called to the witness stand and Gotay is to cross-examine them while representing the Rosses at the same time.

Prosecutors also point to the fact that Gotay agreed to hold $381,000 for the Rosses before FBI agents froze their bank accounts. Gotay claims the funds were to be a "catch-all" fund that would also pay for their criminal defense. Gotay's account has also since been frozen, and prosecutors say Gotay could now be called as a witness himself in the case, causing yet another conflict.

But in a motion filed Monday objecting to the decision to have him removed, Gotay says there are no conflicts of interest and that his removal from the case would put the Rosses at a serious disadvantage.

"(Gotay) has reviewed literally thousands of documents related to the litigation, spoken with numerous witnesses, and diligently addressed the issues in this case. Further, no other litigation counsel is remotely familiar with the case," Gotay states, adding in light of the seizure of the Rosses' assets, they may not have the money to hire another attorney and properly prepare for trial.

Gotay calls Wells' decision a part of "the court's paternalistic attitude," toward the Rosses right to choose who their attorney will be.

John and Susan Ross face a 47-count indictment, including charges of theft of federal funds and money laundering.

Federal prosecutors say over a five-year period beginning in 2000, Susan Ross worked as Title I director for the district and sold pirated versions of textbooks with the help of R&D. At the same time, John Ross worked for the district as a federal grant writer and had previously worked as a Title I director for the state. Both have pleaded not guilty to the charges.

In a separate but related case, Susan Ross' secretary Stella Smith has also been indicted, facing 37 counts of mail fraud, for creating fake book orders totaling $338,000 in which the district received no such books.

A hearing has not yet been scheduled for Gotay's motion to have him put back on the case. The Rosses say because of Wells' order and their frozen assets, they may be forced to retain federal public defenders.

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E-mail: gfattah@desnews.com