Two SDNY Decisions on the Right to Counsel Illustrate the Fine Line Between Zealous Advocacy and Criminal Conduct (Part 2)

Bernard Kerik entered court last week with his new lawyer, having seen his first become a witness against him and his second disqualified as a potential witness.  Although there is no allegation in the federal prosecution of Mr. Kerik that any of his lawyers acted improperly, troubling aspects of the case are another recent reminder of the fine line separating advocacy from potential criminality. 

As widely reported in the news media, Mr. Kerik, the former New York City Police Commissioner, was charged in a 16-count federal indictment with, among other things, public corruption based on his alleged acceptance and cover-up of free renovations on his Bronx apartment from a company that sought to do business with New York City.  As part of the alleged cover-up, the government claims Mr. Kerik authorized his attorneys to communicate false and misleading information to the Bronx DA's office and the New York City Department of Investigation, including statements that the renovations had cost no more than $50,000 and Kerik had paid for them all himself.  One of the government's witnesses will be Mr. Kerik's first lawyer, Joseph Tacopina, who apparently confirmed to government investigators that Kerik had made the statements to him for the "express purpose" of conveying them to the state investigators. 

At issue in United States v. Kerik, 07 CR 1027 (SCR), 2008 WL 216342 (S.D.N.Y. January 23, 2008), was the government's motion to disqualify Kenneth Breen, Kerik's second lawyer, who had joined Mr. Tacopina in representing Kerik in connection with the state investigation, and was, according to Tacopina, also authorized to convey the misleading information to state prosecutors and investigators (although there is no allegation that Breen actually conveyed the false facts).  As a result, the government maintained, Mr. Breen may himself be a government witness at the trial, or at the least necessarily an unsworn witness before the jury on Mr. Kerik's behalf. 

The court agreed, finding "Breen's potential testimony is direct evidence of the charges contained in the indictment," which may prove important and necessary corroborative evidence for the government at the trial.  Even if Breen were not to become an actual witness, the court found the integrity of the process required that Breen should be separately disqualified on the theory that he would become "an unsworn witness who could subtlety impart to the jury his first-hand knowledge of events without having to swear an oath or be subject to cross-examination."

The court also rejected arguments that Breen's testimony would be protected by the attorney-client privilege, noting the privilege does not apply to statements voluntarily disclosed to a third party, or that were intended to facilitate criminal activity.

The court took care to note that neither of Kerik's lawyers was a knowing participant in the alleged obstruction (referring to the lawyer's "unwittingly-made obstructive statements").  However, it is not hard to imagine a scenario where a zealous prosecutor takes the position that the lawyer was in the know, or at least, was willfully blind to the obvious.  Moreover, plea negotiations often occur early in a criminal case, when the conditions are ripe for inadvertent communications of inaccurate facts (the client is in shock or denial, the lawyer hasn't had an opportunity to get a full grasp of the facts, etc.). 

Here, where there appears to be a wealth of evidence to substantiate the government's case quite apart from any statements made or observed by Kerik's lawyers (testimony from cooperating witnesses at the company seeking Kerik's quid pro quo, for example), it is troubling to see plea negotiations become a component of the government's proof, leading to the deprivation of Kerik's counsel of choice and also a chilling effect generally on the criminal defense bar.  Was this really necessary?  In any event, this is an important decision for criminal defense lawyers to read and contemplate.