Bernie Kerik is about to become a martyr to the cause of legal representation, now that his latest lawyer, Kenneth Breen of the well-known highly-regarded go-to white shoe law firm of Paul, Hastings, Janofsky & Walker has been Curcio’d off the case, according to the New York Law Journal.

The Southern District of New York United States Attorney’s attack on Kerik’s representation has been chronicled here,  here and here.  Apparently, Breen, like Joe Tacopina before him, has become so involved in Bernie’s case that there’s no way to allow him to remain.

Southern District Judge Stephen Robinson based his decision on the virtual certainty that Mr. Breen would be called as a witness in United States v. Kerik, 07 Cr. 1027.

“The conflict in this case is so severe that no remedial measure will cure it,” the judge said as he discussed the allegedly misleading statements Mr. Kerik made to Mr. Breen and defense attorney Joseph Tacopina that had been passed on to investigators.

While there is a certain ironic humor to Bernie Kerik, who was about  an inch away from being Homeland Security Czar, before landing in a bit of a Bronx brouhaha when caught enjoying his newfound power a little too much, this is going to end up being one of those cases that bites lawyers for lower profile defendants hard in the butt.

Bernie’s choice of counsel problems stem from plea negotiations in the Bronx, where Joe Tac made his client’s case for a reasonable plea by doing what lawyers do, arguing on behalf of his client and putting the wrong in the best possible light.  Ken Breen, to some extent since his involvement remains awfully foggy, has been alleged to be a witness to the same.  What gives?

After his indictment, Mr. Kerik argued that the alleged conflict was merely hypothetical and that, in any event, the conflict was waivable. He also claimed the statements were privileged and protected by Federal Rule of Evidence 410 because they were made in the course of plea negotiations.

And even if they were not protected by Rule 401, he argued, admission of the statements would deprive him of his Sixth Amendment right to counsel.

Mr. Kerik said Mr. Breen’s role was limited and that Mr. Tacopina was the one who took the lead on what he claimed were plea discussions.

This is quite a remarkable turn of the lawyer’s responsibility and liability for doing what lawyers are engaged to do, responsible for doing and do every single day.  Clients tell their lawyers “their story” and lawyers run with it.  When there’s a disparity between the initial write-up by prosecutors and an agents subsequent statement or testimony, do we get to bump the AUSA off the case so that he can be called as a witness?  Of course not.

But the situations are not at all comparable.  Kerik, and by extension all defendants, have a constitutional right to counsel, which means a qualified right to counsel of choice.  In contrast, the government has no “right” to prosecute, or call witnesses who may hypothetically help the prosecution.  Judge Robinson’s ruling elevates the government’s desire to have available any and all potential witnesses above the defendant’s right to counsel.  This is a very dangerous proposition.

Consider that every criminal defense lawyer, even those working for white shoe law firms, talks to their clients.  Thereafter, a discussion ensues with the prosecutor, where the lawyer argues on behalf of his client.  In the past, words coming out of the lawyer’s mouth were never considered evidence, but rather argument based upon the lawyer putting the allegations into the best possible light for the defendant.  This is what lawyers do.

According to the judge:

Mr. Kerik tried to argue that he was not challenging his plea allocution in the Bronx but was instead reserving the right to challenge the government’s interpretation of that allocution.

“This argument misses the point,” Judge Robinson said. “It is not the truth of Mr. Kerik’s plea allocution that is questioned here. The issue is whether in discussions prior to his plea Mr. Kerik authorized his attorneys, including Mr. Breen, to relay statements . . . that were misleading and obstructive.”

With this decision, Breen has been turned into a witness against Kerik (or against Joe Tac, as Kerik’s Bronx lawyer) because he had that talk.  It would appear that the unspoken rule now is that by going to the prosecutor and trying to argue the defendant’s position, the lawyer has somehow breached confidentiality, exposed that privileged communication to the world, and subjected himself to becoming a witness against the defendant.

There is a very bad message here, one that will chill any effort at discussion or plea negotiation lest the lawyer expose himself to being a witness against the defendant.  Worse yet, it is a purely hypothetical situation, with the government and the court speculating about how the dynamic between lawyer and client, one that we thought was a matter of privilege, transpired.  Defendant’s don’t “authorize” specific phraseology when a lawyer chats up a prosecutor (especially in the Bronx, where the use of English to communicate is optional).  Defendants hire lawyers, and lawyers do whatever they do.  We don’t ask permission to do our job, and no one I know has ever sought a client’s approval before engaging a prosecutor in discussion.

So what becomes of Bernie’s new lawyer, Ken Breen?

Mr. Breen may have to be called to corroborate or dispute those accounts, he said, and should he disagree with Mr. Tacopina’s recollections, Mr. Breen “will either be forced to sit quietly in detriment to his client or (without taking an oath or being cross-examined) to ask questions to which the jury might assign undue weight.”

The court has truly missed the forest on this entire scenario.  The problem would be eliminated entirely if the government was precluded from calling either Joe Tac or Breen, as it should be.  The relative “rights” and “authority” positions have gotten all screwed up here.  If the feds want to show what was said to the Bronx prosecutor, they can always call the Bronx prosecutor to the stand.  He can’t remember?  Bummer.  But that doesn’t give rise to a “right” to get inside the defense camp. 

Kerik’s right to counsel trumps the government’s authority to breach lawyer-client privilege.  Kerik’s right to counsel the government’s need for using defense counsel as a peripheral bolstering witness.  But most importantly, the government’s entire theory as to why Tacopina and Breen should be subject to examination about their privileged communications with their client is a facial assault on the constitutional right to effective assistance of counsel. 

And what does Judge Robinson has to say about the violation of privilege?

Even if the statements were privileged and the privilege has not been waived, he said, “the statements would still be admissible under the crime-fraud exception, even where, as here, the attorney was not a knowing participant in the crime or fraud in question.”

A chill comes over me just reading that sentence.  So it’s clear, if the defendant isn’t exactly honest in his recitation of events to his lawyer, and the lawyer relies on the defendant’s recitation of events to negotiate with the prosecutor, then privilege goes out the window, the lawyer becomes a witness against the defendant and the entire scheme of representation does a 180 and crashes down on the defendant’s head.

This new vision of the role of defense lawyer fundamentally alters the nature of the game.  If this is upheld, there are only two safe courses of action for the criminal defense lawyer and defendant:  Either the defendant is brutally honest at his peril, or the lawyer can never engage the prosecution in discussion.  Anything else and everybody is put at risk. 

This is a bad decision for all involved.  Defendants need to be able to speak freely with counsel, even if it means that they are entitled to lie and spin their version of life.  And defense counsel needs to be able to discuss and bargain with prosecutors, or the system will grind to a halt.  This is a very bad decision.