Kerik Federal Judge Shines Light on Attorney Misconduct (MORE, CLICK HERE)

NY BigLaw Lawyer Ousted From Kerik Case; Will Likely Be Called as Witness Against Client
By Mark Hamblett
New York Law Journal/New York Lawyer - January 25, 2008

A federal judge has ordered the attorney of ex-New York Police Commissioner Bernard Kerik off the case for an actual conflict of interest.

As a result, Kenneth Breen, a partner at Paul, Hastings, Janofsky & Walker, will no longer be able to defend Mr. Kerik against a 16-count indictment that includes charges of accepting payments from a company that sought to do business with New York City, tax fraud, making false statements to the federal government and providing false information on a loan application.

Southern District Judge Stephen Robinson based his decision on the virtual certainty that Mr. Breen would be called as a witness in United States v. Kerik, 07 Cr. 1027.

"The conflict in this case is so severe that no remedial measure will cure it," the judge said as he discussed the allegedly misleading statements Mr. Kerik made to Mr. Breen and defense attorney Joseph Tacopina that had been passed on to investigators.

"Even if Mr. Breen were not to become an actual witness, he would be an unsworn witness who could subtly impart to the jury his first-hand knowledge of events without having to swear an oath or be subject to cross-examination," Judge Robinson said. "For defense counsel, becoming an unsworn witness, standing alone, is sufficient for disqualification."

Mr. Breen said yesterday that Mr. Kerik is disappointed with the decision and is reviewing his options.

In 2004, Mr. Kerik withdrew his nomination as Secretary of the Department of Homeland Security after he admitted he had not paid taxes on the wages he paid his children's nanny. Soon after, Mr. Kerik became the target of accusations about personal, ethical and financial improprieties, including accepting renovations to his Bronx apartment from a company that was seeking city contracts.

Mr. Tacopina, Mr. Kerik's then-defense attorney who later withdrew from the case for reasons unstated, met with the Bronx district attorney following Mr. Kerik's resignation as police commissioner.

Mr. Tacopina told prosecutors that Mr. Kerik had paid for the renovations to his Riverdale apartment himself and a Manhattan Realtor had given him a loan for a down payment on the apartment, a loan Mr. Kerik had repaid in 2003.

Mr. Kerik pleaded guilty to two misdemeanors in the Bronx case in June 2006, admitting he failed to report a loan and that he accepted $165,000 in renovations to the apartment. He was fined $221,000.

Prosecutors with the Southern District U.S. Attorney's Office questioned Mr. Tacopina on his statements about the renovations and loan. Mr. Tacopina confirmed first that he had made the statements and second, that he had received the information from Mr. Kerik for the "express purpose" of conveying it to Bronx prosecutors.

As the federal investigation proceeded, Southern District prosecutors also met with a deputy commissioner of the New York City Department of Investigation, who reported being told by Mr. Tacopina that the Kerik apartment renovations cost between $30,000 and $50,000 and no one else had paid for them. Again, Mr. Tacopina confirmed making the statements for the express purpose of informing the Department of Investigation.

The statements made to the Bronx district attorney and the Department of Investigations were the basis for some of the federal charges later levied against Mr. Kerik.

Mr. Breen joined the Kerik defense team in 2005 and Mr. Tacopina told investigators over the course of the following year that Mr. Kerik repeated those statements to both himself and Mr. Breen. Mr. Tacopina left the case before the 2007 federal indictment.

Mr. Breen filed a brief in opposition his disqualification. James D. Wareham, also of Paul Hastings, represented him at the oral arguments before Judge Robinson.

Arguments Rejected

Assistant U.S. Attorneys Perry A. Carbone and Elliott B. Jacobson told the court that Mr. Kerik was informed of the conflict more than seven months before his indictment.

After his indictment, Mr. Kerik argued that the alleged conflict was merely hypothetical and that, in any event, the conflict was waivable. He also claimed the statements were privileged and protected by Federal Rule of Evidence 410 because they were made in the course of plea negotiations.

And even if they were not protected by Rule 401, he argued, admission of the statements would deprive him of his Sixth Amendment right to counsel.

Mr. Kerik said Mr. Breen's role was limited and that Mr. Tacopina was the one who took the lead on what he claimed were plea discussions.

"Unfortunately for the defendant," Judge Robinson said in his ruling, "this type of potential disagreement or nuance to the discussions at issue is exactly the kind of argument that could necessitate Mr. Breen's testimony at trial."

Mr. Kerik tried to argue that he was not challenging his plea allocution in the Bronx but was instead reserving the right to challenge the government's interpretation of that allocution.

"This argument misses the point," Judge Robinson said. "It is not the truth of Mr. Kerik's plea allocution that is questioned here. The issue is whether in discussions prior to his plea Mr. Kerik authorized his attorneys, including Mr. Breen, to relay statements . . . that were misleading and obstructive."

Mr. Breen's potential testimony, the judge said, "is direct evidence of the charges contained in the indictment."

The judge said it was likely that Mr. Kerik will "disagree with and heavily cross-examine Mr. Tacopina regarding the alleged authorization by the defendant as well as the substance of any discussions."

Mr. Breen may have to be called to corroborate or dispute those accounts, he said, and should he disagree with Mr. Tacopina's recollections, Mr. Breen "will either be forced to sit quietly in detriment to his client or (without taking an oath or being cross-examined) to ask questions to which the jury might assign undue weight."

Judge Robinson rejected the rest of Mr. Kerik's arguments.

Even if the statements were privileged and the privilege has not been waived, he said, "the statements would still be admissible under the crime-fraud exception, even where, as here, the attorney was not a knowing participant in the crime or fraud in question."