EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, December 18, 2007

In Pursuit of Justice: Prosecution Moves to Have Bernard Kerik's Attorney Disqualified In Corruption Case

The corruption case against former New York Police Commissioner Bernard Kerik is heating up as the prosecution has moved to have Kerik's defense counsel, Kenneth Breen, disqualified from the case.  Kerik, the Rudy Guiliani protege, has been accused of accepting $255,000 in work from a company hoping to get city contracts, lying to the White House, filing false income tax returns, and other crimes.

At his trial, the prosecution wants to present evidence that during a previous inverstigation, Kerik gave his attorneys false information to present to the Bronx district attorney's office as part of settlement negotiations.  Breen was one of Kerik's attorneys during this investigation, and the prosecution wants to call him to testify about how Kerik allegedly gave him false information, which would necessitate him being disqualified as Kerik's attorney.  Breen has countered that Kerik's statements to him were covered by the attorney-client privilege. 

While not ruling on the motion, Judge Stephen Robinson seemed to side with the prosecution by noting that Kerik's statements to Breen would be "highly admissible" because they amount to the crime of obstruction of justice.  He also indicated that he would not hold a hearing to resolve the issue.  Another attorney representing Breen argued to the judge that Breen's testimony would merely duplicate the testimony of other witnesses and that for him to be disqualified, the prosecution would have to prove that he would be a "necessary witness, not a neat one, not a cool one."  The attorney threatened that the judge's decision could lead to a reversal, and the judge responded, "That's my life."

Let's look at all of the applicable laws.  The attorney-client privilege generally protects from disclosure confidential communications from a client to an attorney in the prusuit of or in facilitation of the provision of legal services. See, e.g., Denney v. Jenkins & Gilchrist, 362 F.Supp.2d 407, 411 (S.D.N.Y. 2004).  Thus, generally Breen would be right that Kerik's statements to him would be protected by the privilege.  At the same time, however, there is a crime-fraud exception to the attorney-client privilege, under which statements to an attorney are not privileged if they were made in furtherance of a crime or fraud such as the obstruction of justice.  See, e.g., In re Sealed Case, 162 F.3d 670, 674 (D.C. Cir. 1998).  Thus, assuming that Judge Robinson is correct that Kerik's statements to Breen constituted the obstruction of justice, the privilege would not apply.

I'll also briefly note that Kerik could arguably contend that his statements to Breen were inadmissible because statements made during settlement negotiations are inadmissible for certain purposes pursuant to Federal Rule of Evidence 408.  Rule 408, however, specifically states that statements made during settlement negotiations are admissible if offered to prove an effort to obstruct a criminal investigation or prosecution, making this argument a nonstarter.

Kerik's attorney, however, is correct that Judge Robinson must find that Breen's testimony would be "necessary" to disqualify him.  In fact, Judge Robinson must find that Breen's testimony is "both necessary and substantially likely to be prejudicial." Colandera v. Town of Orangetown, 490 F.Supp.2d 342, 353 (S.D.N.Y. 2007).  If it is unclear whether these requisites are satisfied, "the motion to disqualify should be dismissed in the absence of clear prejudice to the moving party." Id.



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