October 20, 2007
DOJ Successful on Motion in KPMG Case
The government had asked for the removal of one of the defense counsel in the KPMG case claiming a conflict of interest (see here). The Washington Post reports (here) that the court has accepted the argument, removing counsel and delaying the trial yet again. The Order (available below) begins by noting that "[t]he government belatedly called to the Court's attention certain possible conflicts of interest . . . ." (italics added) Trial was scheduled to start October 23 with the opening statements, but that has now been postponed, with a new trial date to be set at a hearing on November 16. With the government's appeal of the dismissal of thirteen defendants from the case pending before the Second Circuit, it will be interesting to see if the appellate process beats the start of the trial. If the court of appeals were to reverse Judge Lewis Kaplan's dismissal order before the trial begins, it's likely that would engender even further delay as the court then would have to schedule a trial of all defendants, working with the schedules of seventeen lawyers -- something akin to herding cats.
The prosecutors argued that defense counsel may have provided legal advice to a defendant who is now cooperating with the government. This is yet another example of the issues counsel faces if entering into a joint defense agreement. These agreements are often necessary to exchange information and also to keep the costs for preparation of trial at a lower level. When counsel can share experts, the client saves funds. But when one client flips, and the deal includes that they will cooperate against another who was part of the joint defense agreement, problems can arise. And counsel can be left without a client if the sharing of information causes a conflict to arise.
(esp & ph)
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