Feds Want Kerik's Lawyer Disqualified

The Associated Press
Thursday, November 29, 2007; 11:00 PM

WHITE PLAINS, N.Y. -- Federal prosecutors on Thursday asked the judge in the case against former New York City Police Commissioner Bernard Kerik to consider disqualifying Kerik's lawyer, saying he has a potential conflict of interest because he could be called as a witness.

Kerik, once President Bush's pick to lead the Department of Homeland Security, made admissions to the attorney, Kenneth Breen, that constituted obstruction of justice and were therefore not covered by attorney-client privilege, prosecutors said.

In a 12-page letter to Judge Stephen Robinson, U.S. Attorney Michael Garcia specified that there was no claim that Breen acted unethically or improperly, "only that the defendant did." He asked the judge to appoint a new lawyer who would advise Kerik about Breen's potential conflicts of interest and to consider disqualifying Breen.

Breen would not comment except to say, "We will address this motion in court."

Breen appeared with Kerik when he was indicted this month on 16 wide-ranging counts including accusations of lying to the White House, filing false income taxes, tampering with witnesses and avoiding the nanny tax. Kerik pleaded not guilty to the charges.

Last year Kerik pleaded guilty to a misdemeanor charge in state court, admitting that renovations to his Bronx apartment constituted an illegal gift from the construction firm. The renovations are an issue in the federal indictment, as well.

Garcia said prosecutors intend to call a former Kerik attorney, Joseph Tacopina, as a witness to testify about what Garcia said were false claims to the Bronx district attorney's office. He said Kerik "personally obstructed that investigation by causing patently false statements to be made" to the district attorney's office about the renovations.

Besides questioning Tacopina, the letter says, "the Government may subpoena Breen for these purposes, in which case he would be an actual witness. But even in the absence of such a subpoena, he would be an unsworn witness ... to facts that go to the heart of many of the charges in the indictment."

On another matter _ a reportedly false loan application _ "the defendant's admissions to Tacopina and Breen are tantamount to a confession," the letter says.

"Given that Breen was the primary attorney in the prior investigation ... his defense of his client's conduct in that investigation will necessarily implicate his own credibility and be fraught with ethical issues," Garcia said.

The letter also notes that Kerik, after pleading guilty to two misdemeanors in the Bronx case, was quoted in Best Life magazine as saying, "I didn't take the pleas because I really thought I had done anything wrong. It was just ... give 'em their pound of flesh."

That means Kerik might challenge the facts underlying the plea, Garcia said, and "it would be particularly unseemly" for Breen to challenge a plea he entered.

Garcia also notes that Breen's former law firm is suing Kerik over Breen's legal fees in the Bronx matter, which "further complicates Breen's position."

Republican presidential candidate Rudy Giuliani appointed Kerik police commissioner in 2000 when he was New York mayor, and he endorsed Kerik's 2004 nomination to head the Department of Homeland Security. Days after President Bush introduced Kerik as his nominee, however, Kerik announced he was withdrawing his name because of tax issues involving his former nanny.

Giuliani has said he should have done a better job of vetting Kerik.

© 2007 The Associated Press