The New York Times  reports that the government is trying to  Curcio out former America’s Police Chief Bernie Kerik’s lawyer, Kenneth M. Breen.  While it’s difficult to spend too much time worrying about the mess that poor Bernie, former chauffeur to America’s Mayor, Rudy Guiliani, created for himself while trying to fly too close to the sun, this side note raises too many important issues to ignore.

First is the choice of counsel dilemma.  Bernie, like any criminal defendant, has the right to counsel of choice, with certain provisos.  He can afford Breen, and Breen wants to represent Bernie.  So what’s the problem?  Well, the government wants to stick its nose into the relationship between lawyer and defendant, under the guise of “the defendant’s own good.” 

You see, the potential conflict of interest motion is to protect the defendant, not the government.  After all, the government’s job is to do justice, and what greater justice can there be than to separate a defendant from his attorney of choice, for his own good.  It is manipulative paternalism at its best, and the fact that it happens to have the side benefit of disrupting the defense and the relationship between attorney and client, well, stuff happens. 

The purported reason for the government’s deep abiding concern for Bernie’s welfare is that they might call Breen as a witness in the case.  Key word is “might”, and key question is witness to what?  Witness to his privileged communications with his client?  Witness to his public statements in the media?  Certainly Breen wasn’t writing Bernie’s checks out for him or filling in his tax returns (and even if he would have considered such involvement, Breen has associates to do that). 

So to connect the dots, the government announces that it might call Breen as a witness, which gives rise to the theoretical potential for a conflict of interest, which would possibly compromise the attorneys undivided devotion to his client, which would interfere with the client’s constitutional right to effective assistance of counsel, which requires the government to intervene on behalf of the defendant to protect his constitutional rights.  Is this a great government, or what?

Having personally enjoyed the attention of the prosecution when the word “Curcio” was mentioned, the nefarious nature of the government’s largess is quite plain.  This is the way to throw a wrench into the workings of the defense, disrupt its forward momentum and, if they plan it out really well, sow a seed of doubt in the mind of the defendant that his lawyer might sell him out down the road to save his own butt. 

In its most offensive form, the screams of “house counsel,”  first used against the successful John Gotti lawyer, Bruce Cutler, and which was hurled against me a few times as well, are purely designed to punish a criminal defense lawyer for doing his job too well.  The government certainly doesn’t want a guy like that on the case.

While it’s all too easy to sit back and watch the unfolding Bernie Kerik drama, with its cameo appearance by Rudy (under heavy security, no doubt), even Bernie deserves to the right to be defended by his choice of counsel without the government’s interference.  Turning Curcio from a shield (protection of an unwitting defendant with a conflicted lawyer) into a sword (impeding the defendant’s free exercise of his constitutional right to counsel of choice) is a cynical and insidious move. 

Does the government truly believe that either Bernie Kerik or Kenneth Breen lacks the capacity to grasp the existence of a true conflict of interest?  Not likely.  This isn’t the situation, as in Curcio, where two defendants with potentially conflicting defenses (the other guy did it) want to use the same lawyer to save a few bucks and protect themselves from the other being coerced into flipping on their partner in crime. 

Rather, this bit of governmental concern falls under the old canard of one of the three biggest lies:  I’m from the government and I’m here to help.  Thanks, but no thanks.

Part 2:  What does the government have against Kenneth Breen anyway?