Erika Jayne’s Legal Problems Are Far From Over on ‘Real Housewives,’ Attorney Says: ‘It’ll Be Fully Miserable’

Over the years, “The Real Housewives of Beverly Hills” — more than the other installments

Over the years, “The Real Housewives of Beverly Hills” — more than the other installments in the Bravo franchise — has struggled to produce story arcs that aren’t dull and drama-free. Its cast, several of whom are actors who know how to exert self-control, have often been overly guarded, and have abstained from orchestrating the unbridled, potentially life-ruining shenanigans offered by some of the other cities. Instead, the women of “The Real Housewives of Beverly Hills” have had season-long fights about, to use a particularly bleak example, a dog named Lucy Lucy Apple Juicy, or whether Denise Richards cheated on her husband with former cast member, current shit-stirrer Brandi Glanville.

But not this time. In the 11th season of “Beverly Hills,” the story of Erika Girardi — whose persona over her six seasons on the show had previously been the most carefully managed — has proven to be riveting television. Erika, who has been brought low by the legal and financial collapse of her estranged husband, Tom Girardi, 82, once a towering figure in the California legal community, is being sued into smithereens. And Bravo’s cameras have been there to capture the collapse.

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Erika filed for divorce against Tom on Election Day, hoping to draw as little attention as she could, she told the other women. But that would prove to be impossible. Tom’s legal empire disintegrated the following month amid lawsuits filed against him and his law firm, Girardi Keese, which led to Tom being put into involuntary bankruptcy. Several lawsuits against both Tom and Erika have alleged that Tom has stolen millions of dollars from his clients — and that she was a part of the scheme. And because Erika has been married to Tom since 2000, and she has been clear on the show that he has funded her life and career, she may have few assets of her own.

Which is why on last week’s episode, filmed in December during a trip to the desert, Kyle Richards nervously asked Erika a key question: What will happen to Erika Jayne, the stage persona whose fabulousness was largely based on how rich Erika appeared to be? The subtext of Kyle’s question was whether people will want to see Erika Jayne sing, for instance, her club hit “XXPen$ive” when in retrospect its funding could possibly have come from Tom’s alleged victims: the clients from whom he’s been accused of stealing millions — people who’ve suffered unspeakable tragedies.

“I don’t know. It’s an expensive business,” Erika told Kyle in a slightly clipped manner.

Erika then immediately adopted the self-pitying posture that has led some viewers to think she doesn’t feel remorse: “I let go of my office space, you know my studio — I actually turned the key in, and let that go today.” It was a telling moment, and she then quickly pivoted to talk about Tom, saying he shouldn’t be allowed to practice law anymore because of how much he has been “declining.” She told a truly bizarre, confusing story of how he’d broken his ankle in a 2017 car accident by driving off a cliff behind their Pasadena mansion. Tom is now under a conservatorship, approved by the court, having been diagnosed with late-onset Alzheimer’s. (A representative for Erika did not respond to a request for comment, nor did Tom respond to a request for comment.)

After 10 episodes of this season, Erika is certainly showing viewers sides of her we’ve never seen: Regardless of whether you believe her story, Erika the ice queen has melted. Though “Real Housewives” fans have seen Teresa Giudice of “The Real Housewives of New Jersey” go to and return from prison for financial crimes, and will soon see Jen Shah from “The Real Housewives of Salt Lake City” be prosecuted for allegedly fronting a telemarketing scheme, the destruction of Erika’s life as it was, as well as the ruination of a storied legal titan — one that could send him to prison in his 80s — is something very new.

At the midway point of this season of “The Real Housewives of Beverly Hills,” Variety spoke with Michael Freedman — a former federal prosecutor, now a criminal defense attorney at The Freedman Firm in Los Angeles — and Zev Shechtman, a civil bankruptcy attorney from the Los Angeles firm Danning Gill, to discuss Tom and Erika Girardi’s legal and financial debacle.

Erika has maintained that her divorce from Tom is not a “sham.” But what does “sham” actually mean?

<img class=”wp-image-1234976822 size-full” src=”https://variety.com/wp-content/uploads/2021/05/tom-erika-girardi.jpeg&quot; alt=”” width=”750″ height=”500″ srcset=”https://variety.com/wp-content/uploads/2021/05/tom-erika-girardi.jpeg 750w, https://variety.com/wp-content/uploads/2021/05/tom-erika-girardi.jpeg?resize=150,100 150w, https://variety.com/wp-content/uploads/2021/05/tom-erika-girardi.jpeg?resize=300,200 300w” sizes=”(min-width: 87.5rem) 1000px, (min-width: 78.75rem) 681px, (min-width: 48rem) 450px, (max-width: 48rem) 250px” />

An explosive lawsuit filed in December by the Chicago law firm Edelson PC against Tom, Erika and others alleged that Tom has stolen settlement money from “the widows and orphans who lost loved ones in the tragic crash of Lion Air Flight 610.” It also asserted that their divorce is “simply a sham attempt to fraudulently protect Tom’s and Erika’s money from those that seek to collect on debts owed by Tom and his law firm.”

On the show, Erika has latched onto the word “sham,” and has repeatedly claimed that it’s not true. “Divorce is very painful, and then having called a sham is even more painful,” she said in a confessional interview. “Took a lot of courage to leave, and it took two seconds for some asshole to say it was a sham and everybody to believe it.”

But Shechtman said that a divorce used to keep “ill-begotten” funds can be considered part of a sham. “There can be a completely legitimate divorce where people hate each other and don’t want to be married, where they also use the divorce proceeding as a mechanism to transfer assets inappropriately,” he said.

“I think the two things can be true,” Shechtman said. “She can want to be divorced from him for obvious reasons. And there could be sham transactions — or ‘avoidable transactions,’ to use the legal term.

“The term ‘sham’ is used to refer to $25 million-plus in transactions that ostensibly largely occurred during marriage,” Shechtman added. “The present day divorce may be real. But that doesn’t cure the ‘shams’ of the past.

Can Erika express regret on camera about what Tom has done to the clients from whom he’s allegedly stolen?

Erika Girardi on &#x00201c;The Real Housewives of Beverly Hills.&#x00201d; - Credit: Courtesy of Bravo

Erika Girardi on “The Real Housewives of Beverly Hills.” – Credit: Courtesy of Bravo

Courtesy of Bravo

Looking at social media, as well as the comments section of Brian Moylan’s well-read recaps of “The Real Housewives of Beverly Hills” on Vulture, many viewers seem appalled that Erika hasn’t expressed any remorse about what Tom has allegedly done. And on her own social media, Erika has portrayed herself as a martyr (or as a “scapegoat,” as she wrote over cartoon imagery of her nailed to a cross on Instagram).

But can she express regrets on camera? Freedman, the former federal prosecutor, said it would be extremely unwise.

“I think that’s just treacherous,” he said. “You’re damned if you do, you’re damned if you don’t.”

From his own experience with high-profile clients, he understands the impulse — if she does have the impulse, that is. But he’d still tell Erika not to say anything, were he her lawyer.

“Even if you want to rush to apologize to the victims and distance yourself from whatever was going on, you don’t know if you’re going to be investigated and you could be — at least publicly, anecdotally — seen as admitting to being involved.”

That Erika is on a reality television show, of course, makes silence impossible.

“That’s the best answer always: just say nothing,” he said. “And if you have to say something publicly, you’d want to make sure you craft something very short and sweet and run it by your lawyer and maybe a press team.”

Might Tom be criminally charged? And if he is, when would that happen?

<img class=”wp-image-1234976825 size-full” src=”https://variety.com/wp-content/uploads/2021/05/Erika-Jayne-Tom-Girardi.jpeg&quot; alt=” – Credit: Courtesy of Bravo” width=”931″ height=”524″ srcset=”https://variety.com/wp-content/uploads/2021/05/Erika-Jayne-Tom-Girardi.jpeg 931w, https://variety.com/wp-content/uploads/2021/05/Erika-Jayne-Tom-Girardi.jpeg?resize=150,84 150w, https://variety.com/wp-content/uploads/2021/05/Erika-Jayne-Tom-Girardi.jpeg?resize=300,169 300w, https://variety.com/wp-content/uploads/2021/05/Erika-Jayne-Tom-Girardi.jpeg?resize=125,70 125w, https://variety.com/wp-content/uploads/2021/05/Erika-Jayne-Tom-Girardi.jpeg?resize=681,383 681w, https://variety.com/wp-content/uploads/2021/05/Erika-Jayne-Tom-Girardi.jpeg?resize=450,253 450w, https://variety.com/wp-content/uploads/2021/05/Erika-Jayne-Tom-Girardi.jpeg?resize=250,140 250w” sizes=”(min-width: 87.5rem) 1000px, (min-width: 78.75rem) 681px, (min-width: 48rem) 450px, (max-width: 48rem) 250px” />Courtesy of Bravo

Based on how much attention the lawsuits and Tom’s involuntary bankruptcy have gotten, regarding possible criminal charges, Freedman said, “It seems very likely he’ll be under investigation, if he isn’t already.”

“Prosecutors are like anyone,” Freedman said. “They want to have big cases, they want to make a name for themselves. There’s a certain sort of bias that once you’re invested in investigating the case, you would like to see it through to charges and make headlines.”

The likely charges against Tom could include wire fraud or mail fraud, which basically mean intentionally defrauding someone out of money by using interstate wires or the mail. It’s not a rush, though, Freedman said: “A white collar fraud investigation from the time they first learned about it until they indict can take several years.”

“In a high profile case like this, they definitely want to dot their i’s and cross their t’s,” he said. But at a certain point, “the subpoenas are just going to go flying.”

Federal prosecutors are also likely to observe the bankruptcy proceedings: “The criminal side really has the luxury of sitting back and letting him get in even more of a mess,” Freedman said. Especially because parties in bankruptcy proceedings might end up committing more wrongdoing.

“Bankruptcy fraud is a federal crime.”

According to Freedman, federal prosecutors divide parties of interest into targets, subjects and witnesses. Even if Erika isn’t the target of an investigation, she might be a subject and Bravo could be a witness. “Federal criminal prosecutions are like steamrollers,” he said. “And they often tend to roll over everyone in their way.” And, he added, “they love to go after lawyers” because they take attorneys’ crimes “especially seriously.”

Though Tom has always been based in Los Angeles, federal charges can be filed anywhere the cases have touched. “Federal criminal statutes are the same everywhere,” Freedman said. “So wire fraud is the same whether you’re in Chicago or L.A. It’s not an element of the crime, but the government needs to establish a venue.”

The question for prosecutors, though, is would criminal charges help achieve the best outcome? Especially now that Tom can no longer practice law, and doesn’t appear to be a flight risk. “He’s pretty constrained for all intents and purposes right now,” Freedman said.

“What’s the best way for justice to be done here?” he posed rhetorically. “If justice means getting the victims their money back, that could possibly be done more quickly in the bankruptcy proceeding or civil proceedings.”

“There’s not really a rush,” Freedman said about the 82-year-old Tom.

And no, being in a conservatorship doesn’t prevent Tom from being charged with a crime.

“Politically and optically, it might help,” Freedman said. “But legally, no.”

Could Erika be criminally charged alongside Tom?

Kyle Richards, left, and Erika Girardi, right. - Credit: Courtesy of Nicole Weingart/Bravo

Kyle Richards, left, and Erika Girardi, right. – Credit: Courtesy of Nicole Weingart/Bravo

Courtesy of Nicole Weingart/Bravo

That’s the million-dollar question for “Real Housewives” fans, after all. And it’s possible, of course. “I think there’s an interesting civil-criminal overlap here in the bankruptcy context,” Shechtman said.

The trustees in the bankruptcy case who are trying to recover the Girardis’ money for Tom’s creditors and alleged victims are looking for where all that money went, which, Shechtman said, could lead to a “civil claim for potentially fraudulent transfer — whether it’s an intentional fraud or a constructive fraud.”

But whether Erika is charged depends on what she knows. Receiving stolen money doesn’t necessarily constitute a crime, Freedman said, “if you don’t know that it was stolen.”

Yet she still has to tread lightly, Freedman said: “She’s got to be careful, because she’s close enough that she could still get herself in more trouble. But I do think she’s probably just going to suffer through this for a long time.”

And not even that dire forecast means the coast is clear for her.

“What’s in store in the years to come? I think it’ll be fully miserable,” Freedman said. “It’s just going to be endless subpoenas and requests and lawyers. And that can be very draining financially and emotionally.”

To that point, Shechtman said, “Bankruptcy may be needed for her if the litigation keeps on progressing.”

But, he pointed out, there are certain types of debts that she may not be protected from, even in bankruptcy. “Some types of claims if they’re based on, say, fraud, may not be dischargeable,” he said. “So bankruptcy would serve less of a purpose.”

On “The Real Housewives of Beverly Hills,” Erika certainly does appear, as Freedman put it, fully miserable. Yet she has a nice car, and a three-bedroom rental house in the Larchmont neighborhood of Los Angeles, which she rented for, according to Dirt, $9,500 a month. She’s even been getting her glam done, which she’d famously bragged used to cost $40,000. She’s still represented by CAA.

What’s become clear this season is that Erika — who knows she needs this job more than she ever did — actually can deliver a great “Real Housewives” performance, as her smudged mascara indicated as she wept to Kyle in a recent episode. Whether she can participate in the typically unfettered reunion episodes, which will tape around Labor Day, does remain an open question.

And Erika really needs to avoid going from being a likely subject in any criminal investigation, to becoming a target, Freedman said — not doing something to “heighten their interest or suspicion.”

“There’s a lot of reasons why you want to lay low,” Freedman said. “You’ve got to proceed very, very carefully. And being on a huge TV show seems the opposite of that.”

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