Bernie Kerik Says Lawyer Hung Him Out to Dry
NEWARK (CN) - Bernard Kerik sued his former attorney, claiming the man duped him into entering into a plea deal that served as a "catalyst" to a 16-count federal indictment against the former New York City Police Commissioner.
Kerik sued Joseph Tacopina and Tacopina's attorney, Michael S. Ross, "a prominent ethics attorney in New York," alleging negligence, legal malpractice, fraud and other counts, in Federal Court.
President George W. Bush in December 2004 nominated Kerik to be head of the Department of Homeland Security. Kerik withdrew his nomination about a week later, acknowledging that he had hired an undocumented immigrant as a nanny. Investigations followed and he eventually pleaded guilty to eight of the 16 charges, including tax fraud and ethics violations. He served 3 years in prison.
Shortly after he withdrew from the Homeland Security appointment, Kerik says, his attorney, Tacopina, informed him that he was under investigation for his conduct when he served as Commissioner of the Department of Corrections.
That investigation centered around renovations to Kerik's apartment in the Riverdale area of the Bronx.
During this time, Kerik says, Tacopina recruited attorney Kenneth Breen to help him during the grand jury phase. Breen is not a party to the complaint.
On June 20, 2006, Kerik says, Tacopina rold him via email that if he pleaded guilty to two ethics violations - having the renovations paid for by Interstate Industrial Corporation or its subsidiaries, which employed a family member of Kerik and a friend - all investigations would be closed and it would be "everything we wanted."
Kerik says in the complaint: "Defendant Tacopina represented that no harm would result in order to lure Mr. Kerik into accepting a plea of guilty under what defendant Tacopina described as 'a violation, no different than pissing on the sidewalk,' with no repercussions, was in fact the catalyst to federal criminal charges on taxes specifically represented by Tacopina would not arise from taking the plea in the Bronx case. Defendant Tacopina continue[d] his harm toward plaintiff through secreted meetings with federal prosecutors where privileged information and/or false information was exchanged and provided against the interest of his client, Mr. Kerik while simultaneously concealing the fact that defendant Tacopina himself was a subject or target of an ongoing federal criminal investigation."
Despite feeling "uncomfortable" saying he had accepted a gift, Kerik says, he signed the deal under the "strenuous advice" of Tacopina.
"During this time, defendant Tacopina masterminded the plea allocution/agreement and its terms limited the knowledge and/or participation of Mr. Breen, then sold Mr. Kerik down the river through a series of events reminiscent of 'The Godfather,'" Kerik says in the complaint.
He claims that Tacopina assured him, before, during and after the plea deal, that the plea would end all investigations of him, that he would suffer no tax liabilities and his family would be able to move on with their lives.
But that's not what happened.
"(I)mmediately after Mr. Kerik accepted the negotiated plea and pled guilty in state court on June 30, 2006, the DOI's [Department of Investigation] lead investigator, and now Bronx prosecutor, Mr. Arsenualt sent letters to state and federal tax and law authorities, calling for an investigation surrounding Mr. Kerik relating to the Bronx case," the complaint states.
"In or about July 2006, the U.S. Attorney's Office in the SDNY [Southern Division of New York] initiated a federal grand jury investigation involving many of the issues that had been investigated, and resolved in the Bronx case.
"On or about March 12, 2007, the federal prosecutors involved in the grand jury investigation against Mr. Kerik served Mr. Tacopina with a grand jury subpoena, calling for the blank production of records from his law firm relating to Bernard Kerik."
This "conveniently timed subpoena," gave Tacopina a conflict in representing Kerik and left Breen to take over the position, the complaint states.
Breen immediately contacted Tacopina and informed him to "preserve his attorney/client work product protections and attorney-client privileges," Kerik claims.
In September 2007, Tacopina contacted Kerik to help him get funding for a real estate venture that involved Tacopina's client Raffaello Follieri, an Italian businessman and onetime boyfriend of actress Anne Hathaway, according to the complaint.
Kerik claims that he helped get the funding through Plainfield Asset and was promised that the $1.5 million finder's fee would be split equally between him and Tacopina.
Then it all fell apart: "On the morning of November 5, 2007, defendant Tacopina requested Mr. Kerik meet with him at 94th Street near 23rd Avenue in Queens, New York. Defendant Tacopina then informed Mr. Kerik that Assistant U.S. Attorneys Elliott Jacobson and Perry Carbone were in the process of destroying his law practice and that he thought he was going to lose his law license."
Three days later, Kerik was indicted by federal grand jury.
"On November 15, 2007, Mr. Breen was provided a witness list by federal prosecutors, in which Joseph Tacopina was listed as a federal witness, suggesting at least that defendant Tacopina had provided some information to the federal prosecutors without Mr. Kerik's knowledge contrary to his former client's liberty interests in," according to the complaint.
Breen then contacted Tacopina and told him to have no further contact with Kerik, the lawsuit states.
On Dec. 9, 2007, after being informed by Plainfield Assets that the finder's fee on the Follieri deal was $2.5 million - not the $1.5 million as represented by Tacopina - Kerik says, he received a phone call from Tacopina professing his innocence in the finder's fee - and jeopardizing Kerik's bail conditions.
On three occasions from Dec. 6, 2007 to Jan. 23, 2008, Tacopina, accompanied by Ross on one occasion, "met with federal prosecutors in secret, and divulged Mr. Kerik's alleged conversations with him related to the Bronx case that are considered privileged or non binding under the law," Kerick says.
As a result of this "gesture of cooperation," Breen was disqualified as Kerik's attorney and Kerik did not have an opportunity to seek an injunction to prevent Tacopina from releasing privileged information, according to the complaint.
"These epic failures were not negligent, but by design, and calculated to destroy or limit Mr. Kerik's ability to mount a defense of the federal charges against him that finally came on November 8, 2008 on the heels and based on the plea in the Bronx case," Kerik says.
Spelling out his complaint against Ross, Kerik says in the lawsuit: "This is also an action against Michael S. Ross, a prominent ethics lawyer in New York, operating under the law offices of Michael S. Ross, for aiding and assisting in the intentional production of privileged information to federal prosecutors against the interest of Mr. Kerik by aiding and counseling defendant Tacopina to do so in violation of the standards of ethical and legal practice, without providing any notice of their intent to so. These epic failures occurring one after another are not mistakes or coincidences as these defendants are seasoned prominent attorneys. The failure to notify Mr. Kerik (to obtain separate counsel) prior to divulging to prosecutors is epic because it would have allowed the opportunity to seek court intervene to enjoin the release of that information that was then used against Mr. Kerik. Defendant Ross knew his client defendant Tacopina was talking to federal prosecutors and/or investigators and provided them privileged, misleading or false information regarding Mr. Kerik, that would harm his ability to mount a defense and/or jeopardize the liberty interests but never gave the courtesy of prior notice to Mr. Kerik so he may take protective measures.
"The privileged information whether or not factually accurate by defendant Tacopina, was material and relevant to Mr. Kerik's defense of the criminal charges being prosecuted by the same United States Attorney's Office ('USAO') in the Southern District of New York and federal prosecutors meeting with defendant Tacopina in secret described in an affidavit attached as an exhibit. Defendant Ross' sudden and secret appearance provided the perfect cover to maliciously and flagrantly violate the rights and disclose otherwise protected and privileged information belonging to plaintiff that was purged without any concern."
Kerik seeks punitive damages for negligence, legal malpractice, breach of fiduciary duty, negligent misrepresentation, fraudulent disclosure, breach of contract, intentional misrepresentation, fraud in the inducement and intentional interference with business relationship/contract.
He is represented by Athan Tsimpedes of Washington, D.C.