E. Bob Wallach is attempting to stake out a novel legal position as he faces federal racketeering, conspiracy and fraud charges in connection with the Wedtech scandal -- that he cannot get fair treatment from the Justice Department because of his 30-year friendship with Attorney General Edwin Meese III.

In a new twist to the 1978 Ethics in Government Act, which provides for independent counsels in cases involving high-level administration officials where the Justice Department might have a conflict of interest, Wallach's lawyers say they will go to court to ask that Wallach's prosecution be turned over to an independent counsel.

Several Justice Department officials yesterday discounted Wallach's chances of shifting the case away from Rudolph W. Giuliani, the U.S. attorney in New York who announced the 18-count indictment of Wallach and two other men Tuesday. They added that Giuliani's decision to go forward with the indictments was approved by Independent Counsel James C. McKay, who has been investigating Meese's role in Wedtech and other matters.

"I cannot be treated fairly and equally in this case because the Department of Justice has a conflict of interest since the facts of this case involve my relationship with . . . Meese," Wallach said in a written statement released Tuesday night by his lawyers. "How can the Department of Justice treat me fairly and equally, free from either bias or overreaction, when my conduct in the case directly involves their boss, the attorney general?"

Wallach has been a friend of Meese since they went to law school together and has served as Meese's lawyer. Meese has recused himself from any aspect of the Wedtech case.

Wallach's lawyer, Robert L. Krakower, said yesterday that he would not comment beyond Wallach's statement "other than to say that we intend to set forth the conflict of interest issue in legal papers because we believe it is an important issue that needs to be addressed by the court."

Giuliani began his investigation of the Bronx-based defense contractor more than a year ago. McKay was named last February to look into the involvement of former White House political director Lyn Nofziger in the case. Nofziger is facing trial on four conflict-of-interest charges.

McKay's mandate was expanded in May to include a probe of Meese's activities after Meese acknowledged that he had interceded in Wedtech's behalf at Wallach's request in 1982 when Meese was counselor to President Reagan and Wedtech was seeking a $32 million Army contract.

Wallach said this week that his attorneys had met separately on Dec. 17 with William F. Weld, assistant attorney general in charge of the criminal division, and with McKay to request that the Justice Department "recuse itself and that any prosecution of this case be conducted by the Office of Independent Counsel."

McKay filed a notice Tuesday with the special three-judge appeals court panel which oversees the activities of independent counsels specifically saying that he agreed to allow Giuliani to go forward with his indictments of Wallach and San Francisco businessmen W. Franklyn Chinn and Rusty Kent London.

"The independent counsel law says that if an independent counsel agrees in writing, then any investigation or proceeding may be conducted by the Department of Justice, even if it were in the jurisdiction of the independent counsel," Weld said yesterday. "In this case, Mr. McKay has filed a pleading in writing with the court reflecting his agreement that this be prosecuted by the Justice Department, specifically Giuliani."

Another Justice Department official added that Wallach is unlikely to be successful since the decision to have Giuliani proceed with the indictments "was all worked out between McKay, Rudy {Giuliani} and the court. I think Wallach's barking up the wrong tree."