Koerber is facing 18 counts of fraud, money laundering and tax charges in an indictment that alleges he ran a Ponzi scheme in which about half of the $100 million the companies took in from investors went to pay back other investors to make his operation of FranklinSquires Cos. and related entities appear profitable.
Wheeler testified Wednesday that Koerber was behind on payments when Wheeler talked to a prosecutor and a state investigator sometime prior to the interviews.
"I told [the prosecutor] I would not be working on Mr. Koerber's file," said the attorney. But he added that whether an attorney is representing a client at any one time can be a "nebulous concept" and that he referred them to other attorneys who he believed did represent Koerber.
"I never thought Mr. Koerber was not represented," Wheeler said.
Russell Skousen, the former director of the Utah Department of Commerce who went to work as in-house legal counsel for a Koerber company in 2005, also testified Wednesday that he represented Koerber personally.
Skousen said he was Koerber's attorney through May 2009, although he did only occasional work for him after the companies fell on hard financial times in 2008.
"I wasn't on salary after a period of time, and I just consulted with Mr. Koerber from time to time," testified Skousen, who said he would have advised Koerber not to talk to the agents had he been consulted.
Judge Waddoups gave both parties time to make additional arguments before he makes a decision on the issue.