May 13, 2014

Kerik v. Tacopina: A Minor Setback

The latest twist in the Kerik v. Tacopina litigation may be nothing more than a passing blip or it may be significant. Back around 2009, when the feds were prosecuting him, Bernie received various documents and discovery material. These documents, Bernie has been recently claiming, would help establish how his then-attorney Tacopina ratted him out to government prosecutors. 
Tacopina's counsel, not surprisingly, said he would welcome the release of these documents. Given that this treasure trove of materials formed the backbone of the government's criminal case against Bernie in the first place, their release would likely help Tacopina in a number of ways.

In any event, Chief United States District Judge Loretta Preska, who handled Bernie's criminal case, yesterday rejected his motion to vacate the protective order Kerik and the government had entered into years earlier as part of the deal by which the government would disclose the materials to Kerik's defense team. Judge Preska found that Kerik had actually breached the agreement with the government by not returning the materials after he had pleaded guilty years ago, and instructed him to return the files to the government tout suite. 

Bernie can, of course, subpoena the records from the government in the civil litigation. The feds will likely move for a protective order and the matter will be decided in good time by Judge Koeltl, who is presiding over the civil case. 

The bigger question is whether he ought to do so. Not knowing what's in the file, I can't offer a legally useful opinion. As a spectator, I hope he pursues this avenue, and that the records are released. 

Next up, the May 16 motion to dismiss and for sanctions. 


  1. Ok, nice article but as a lawyer can you explain this to me and others, naturally, we are not as smart as a lawyer or the government, so, can you explain to me why the government releases (I assume original records) "discovery" documents instead of certified copies - this seems to place the intgerity of the file in jeopardy and for deletions or altering - what is the Judge thinking? In addition, once the case is over and the guy did his time, for the interest of the public, which is the ruling law, all of the PUBLIC records should be released with reasonable saftey concerns - this is not a secret society and there are other public interests tied to this corruption, so, please release the records and allow for a fair judical battle and ASK questions YOUR honor, don't reply on the government to make silly and ambigious ruling from the bench

  2. Law degrees don't make you smarter than anyone else, they just give us some experience. I have no idea what the gov't's file on Bernie was in the criminal case. What I do know is that Bernie's lawyers agreed that they would not use the materials outside of the criminal case as a condition for the government producing it in the first place. I would guess the gov't was claiming that some of the information was somehow privileged for one reason or another, and Kerik's lawyers agreed to the confidentiality order rather than fight over it.

    I could imagine arguments Bernie could make now, in view of the civil case, that he should be able to use some of this file in his current case. What I would expect he will do -- if he's serious about trying to use the file publicly -- is subpoena it from the government.

  3. On that point I agree with you. Bernie's lawyers must file the subpoena and make their legal arguements to be effective...It is my experience most Judge's do not like to ask the tough questions unless they are obligated to do so - We agree then, Bernie if you are reading this, you must file the "subpoena" and make it a public matter, Let them explain the need for secrecy. If that may find additional support out there this point, what do you have to lose...? These are important issues within the legal community that transend beyond any fees, do what you must but if youy do it do it for your defense and for the best interests of the public and their right to know, that is my opinion

  4. I have read today that the A-Rod lawyer's side has filed for perjury charges ( a serious criminal charge) against former Commissioner Kerik inside of a civil lawsuit. However, this is out-of-control. How in the world does the A-Rod lawyer get away with this stuff...? Firstly, Kerik has already paid for his alleged crimes. Secondly, NY Bar Association Formal Opinion 487 was issued to dissuade lawyers from filing "defamation" lawsuits against clients who file a grievances which are sealed under NY Jud 90 or else no one would ever file a grievance and the public interest not served. Now, to encourage or file "criminal" charges against a party who was the former client, now that is absolutely insane, in my humble opinion. It is also my understanding such act may be a violation of the NY Rules of professional Conduct, Rule 7-105 (A) - "A lawyer shall not present, participate in presenting or threaten to present criminal charges solely to gain an advantage in a civil matter." IN ADDITION, the lawyer who represents a potential plaintiff/complaining witness, however, is FORBIDDEN by DR 7-105 (a) from injecting the subject of the adversary's possible criminal liability into settlement negotiations." This would apply to A-Rod's legal team in the Multi MILLION dollar "defamation" demand. In some people's eyes, trying to discredit Bernie by going this route with a financial gain, well, some may consider it a more than bad faith dealings....The lawyers involved here may be obligated, under the state licensing rules, to report this activity to the tribunal where a complaint is already filed.....Finally, on a personal level, why is this lawyer doing this? What is in that closet that he is so scared to disclose..? Is someone pressuring him to act this way...??In seems very mean-spirited to a former client who I believe is owed some degree of attorney privileged fiduciary client protection. Something does not smell right here and one does not need to be a lawyer to sense something larger may be lurking......Where is the Oversight Committee..? .Of course, these are just my humble and untrained opinions and I would love to hear from Officers to the Court on their feelings and professional opinions....Thank you

  5. I wish to make a correction to the above opinion, I meant to reference NY Bar Association Formal Opinion # 456 (1/5/77) (112-76) which calls it "improper" to sue a former client where the lawyer has a reasonable belief the statements are protected by an absolute privilege. Bernie, to my knowledge, never willfully waived any privileges. You cannot waive rights by accident. The complaint was filed under seal pursuant to NY Jud. 90 (10).To my knowledge, the actual complaint contents has not been publicized. A party does not "waive" any privileges by accident, by ignorance and WITHOUT a Judge to decide the matter. It would be most unfair for the NY Daily's News to be exempted by an "absolute privilege," the A-Rod lawyer protected by privileges and the Government protected by privileges but not Bernie Kerik. This would be most unfair. Bernie's lawyer should NOT waive any rights nor should the press presume he did if that is their position. Since the A-Rod lawyer filed his "defamation" lawsuit AFTER the grievance was filed to the NY Dept. Disciplinary Comm., I believe the A-Rod lawyer may have violated N.Y. Judiciary 90 (10) himself and, in any event, such communications, such as the filing of an ethical complaint are extended in the absolute protection clause and if your blog wants an original copy of this Opinion, a request will be honored. This is highly relevant to the public. If all lawyers file "defamation" lawsuits and hide records, the public will be dissuaded from filing any complaints for fear of financial damage and corruption may be covered-up in a manner contrary to the ethical by-laws of the law. PS: NY Judiciary 487 protects litigants and parties from "deceit and fraud" and may be the subject of another article in this OK Corral type battle...Thank you.

  6. Here's my diagnosis: Axis 1: Forrest From the Trees Syndrome; Axis 2: Backing Bernie No Matter Whatology.

    Let's start with some simple facts: Bernie committed various felonies and got caught. Next, Bernie relied on advice from friend/lawyer Joe Tacopina that didn't work out as hoped.

    Now, Bernie is alleging that Joe gave confidential attorney/client info to the feds, bringing about his prosecution. That's some really serious stuff. Is it true? I have no clue. If it is, that's a serious ethical breach, to say the least. If it's not, then it's a helluva false accusation.

    Tacopina's defamation suit may be legally problematic (and plaintiff's in these cases can be opening themselves up to discovery they really don't want to produce), but it's an understandable move.

    Bottom line: Bernie shouldn't be complaining about the defamation suit. It's a tool for more discovery. More to the point, establish that there's some truth to your allegations and Tacopina's defamation suit vanishes.

    1. True....true...but that is why he demands the records be unsealed....I have a good faith belief Kerik already has information but I believe he needs the records unsealed to use it.

      It regards to the "defamation" lawsuit, I agree it may backfire, however, the rules are the rules and attorneys who receives a complaintshould think before they file possibly frivolous "defamation" lawsuits that obstruct witnesses and the public from filing any further complaints - not - everyone has Kerik's financial resources and pulpit. It is also telling of the modus operandi of how Tacopina operates - to throw all sorts of charges and see what sticks and drain your opponent's finances....that is not allowable in the rules unless you have evidence.

      However, even a little thug like the A-Rod Lawyer should know, you can't write letters to the FEDS to have the complainer arrested for perjury. You can not present criminal charhes to gain an advantage in a civil matter. Since the government was not after Bernie and since Tacopina has $1 million, or $5 Million, or $15mm in so called "damages" it appears Mr. Tacopina and his lawyer violated the NY Rules of Conduct and essentially are proving Bernie's points of attorney-client privelege violations. Remember, the expectation of a fidcurary obligation does not end because a client may be upset or files a complaint, maybe for legitimate means. Mr. Tacopina's attempts to derail the ethics complaint or lawsuit by sneakily trying to have his former client imprisioned (a second time for the same crime essentially) represents a level of unprofessional and dangerous play that has even seasoned lawyers shaking their heads to. This is not what they teach you in law school. I believe Mr. Tacopina is a somewhat decent criminal lawyer but he appears unseasned in the personal injury/civil law and appears to be putting his foot in his mouth . Maybe in a murder case you can call the DA or FEDS for help but you have no business in a civil case when you have MILLION dollar demands to act that way or engage in ex-parte communications with any officials when you, yourself, are under investigation. Bernie new lawyer says he was not even copied on the letter - unbelievable. Maybe the A-Rod lawyer should read the rules before he attempts to hide behind them. I agree with you - these records must be unsealed and this mean spirited behavior to end NOW. What is he trying to hide by looking to send his opponent to prision? As you know the expression, where there is smoke, this is fire... There is smoke...

  7. the entire idea of a lawyer suing his client (outside of owed expenses) is breathtaking in itself, if abnormal...but you are not supposed to set your clients up....and as the NY Post reported, to "sicc the feds" on a former client who filed a want to talk serious...NOW that is serious if not kind of twisted...if the New York Departmental Disciplinary Committee cover up again - A call will be made to have Gov. Cuomo disband this Committee of cronny Oversight as an effective agency not capable of doing the right things because of bribes and sorded personal relationships AND to "sicc" the NY Attorney General to disband this agency, rewite the rules and FIX it already - what the hell is he waiting for...? Is he that incompetant as a Govenor or is he being blackmailed by some influence from Sheldon or someone to keep the Status Quo which is a fabulous failure - - - lets just say, everyone is being monitored and IF the ethics grievance employees are coaching complained-of lawyers to file frivolous defamation lawsuits to end their investigations and then claim confliciting issues without answers (this will show a pattern of this corruption that is running rampant inside this First Department) Gov. Cuomo will need to get his hands dirty and actually start weeding out the corruption he has promised to do as an election promise and stop wasting time...Lets hope sanity comes back to the NY AG's Office