Monday, February 11, 2008

Indictment of Florida's Ben Kuehne Essentially for Giving Legal Advice?

That is the question put by John Steele at Legal Ethics Forum, here, and our exchange in his Comments section includes links to other sources and views on this matter.  Is this case about money laundering, chilling defense attorneys, or even political retribution?  It is certainly an eye-opener to anyone practicing criminal defense, or even those who just advise defense attorneys.  [Alan Childress]

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Ben Kuehne was my law partner for more 5+ years during the 1980'-1990's (Sonnett, Sale & Kuehne) and he mentored me since 1983 when I served as his 'associate' at the predecessor firm, Bierman, Sonnett, Shohat & Sale. I served as a full-time Visiting Professor of Law in 2005, after which I resumed private practice, now largely in the corporate compliance field (invariably circuitous to white collar criminal defense representation, particularly in the health care industry.).

Ben Kuehne is clearly a 'lawyer's lawyer' who instilled in me the highest appreciation of academic excellence in the practice of federal law. More critically, Ben sensitized me to the distinct ethical dilemmas presented institutionally to criminal defense counsel and ALWAYS taught me (AND CONTINUOUSLY REINFORCES THE NEED) to uphold and exceed our profession's highest ethical/legal standards.

Practicing criminal law in the federal courts places these dedicated, tenacious professionals in legal jeopardy merely by discharging their duties oaths, and obligations to the Sixth Amendment of the US Constitution, coextensively with duties to the courts and clients.

Ben successfully represented me before the Magluta grand jury in which each of his primary attorneys' fees, including those of Roy Black and Marty Weinberg, were also scrutinized (Weinberger was later disqualified from representing Magluta at trial in 99-583-Cr-Seitz). I don't recall whether Strafer was called to that grand jury, but he, too, was routinely involved in Magluta's representation on appellate matters. Parenthetically, and prior to accepting fees for this representation which pre-dated his involvement as an academic expert in money laundering, I consulted Stafer, not as a buffer," but as an expert in this field for an independent conclusion.

Black, again, came out unscathed while other lawyers, including myself, were named as unindicted coconspirators (for disclosing a $50,000 check from a third party) or plead guilty to violating a restraining order against the transfer of assets by the defendants.

Weinberger and Black had extensive contact with the US Attorney in Miami then. What, if any implications can one draw from BLACK AND WEINBERGER’S immunity from the type of prosecution for which Kuehne is now charged? Is it because of Black's misplaced aura of respectability or the Weinberger firm (Joe Otero, in particular) whose representation of Magluta for more than 30 years, even while Magluta was a fugitive and evidence showed that Weinberger faxed him a copy of the 1991 indictment seized at the location where Magluta had been secreted in this fugitive status?

From these experiences and the overlap of identity of lawyers in the Ochoa case, I simply don't understand, knowing that Ben is clearly the least avaricious attorney I know, and based on his uncompromomising adherance to the to the law and the highest ethical standards, that he would intentionally commit money laundering, all the more so because he was not the beneficiary and was compensated proportionally and appropriately for a significant foreign financial investigation. PLAINLY, HE WAS USED AND INTENTIONALLY, BY DESIGN, THROWN TO THE WOLVES. That is, did Black and Weinberger meet with the US Attorney "again," as they did escaping sanction in the Magluta case, to set Kuehne up as what the Herald described as a "buffer" to "insulate" them?

Kuehne and his Columbian accountant and local assistants personally checked official public Colombian government and financial records [is it possible that the corrupt national and provincial governments in Colombia manipulated "official" public records on which BPK relied?] to make an informed, deliberated, unbiased and independent conclusion as a Certified Fraud Examiner and premier lawyer extraordinaire.

Kuehne had no interest vested in the outcome of his conclusions and was entirely detached from the defendant's actual representation. His investigative role was diminimus in relation to the private investigation undertaken for the accused by Black’s global army of private investigators.; Kuehne's objective investigation was limited temporally by the sole question presented; and the attorneys providing the representation, unlike Kuehne, were the only parties with an interest, financial or otherwise, in a dispositive conclusion by Kuehne, only Hoping for a favorable determination and if not, likely seeking another 'opinion' from a non-scrupulous lawyer.

That Black and Weinberger emerged unscathed from the Magluta investigation and took away from that experience the need to be more meticulous in accepting fees of potentially suspect origin, and it's recurrence in the Ochoa case is commendable.

But The Herald’s article published Feb. 7-8, 2008 states: "Ironically, the investigation first focused on Black... [B]ut authorities dropped their interest in Black and shifted to Kuehne, who became the target because his buffer-like role insulated Ochoa's defense attorney [Black] from any criminal liability for accepting the fees." Miami Herald (Internet ed. 2/7/2008)(emphasis added). Jay Weaver’s observation in this respect speaks volumes in terms of motive/benefit and accurately capsulizes the essence of this tragic episode in Kuehne's otherwise unblemished career.

This makes no sense and suggests the unspoken implication of Kuehne's status as a 'sacrifical lamb' without the motive or financial interest common to other lawyers who were plainly significant beneficiaries of otherwise prudent fee-paying conduct now alleged by the government to have been criminalized.

Kuehne, if retained by the defendant's attorneys to be a "buffer" to "insulate[ ]" them (and hoping for a pro forma favorable conclusion, hired the wrong lawyer) and if true, Black’s conduct would itself be appalling.

BENSON WEINTRAUB, Esq. Fort Lauderdale

Posted by: benson weintraub | Feb 13, 2008 11:00:19 AM

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