October 1, 2009 8:00 AM

The Bernie Kerik Litigation Circus Is Coming to Town

Posted by Brian Baxter

The long-awaited public corruption trial of former New York City police commissioner Bernard Kerik won't start for another few weeks but the courtroom theatrics have already begun.

On Wednesday, U.S. district court judge Stephen Robinson in suburban White Plains, N.Y., barred Kerik's defense lawyers from bringing up the 9/11 terrorist attacks at their client's upcoming trial on charges that Kerik accepted apartment renovations from a construction company that he later recommended receive city contracts. (Jury selection for the trial, which is expected to last between four and six weeks, is scheduled for October 13. Opening arguments are tentatively set to begin the following Monday.)

Representing Kerik is Kramer Levin Naftalis & Frankel litigation cochair Barry Berke, the latest in a long line of lawyers defending the disgraced civil servant. Berke, who has several high-profile representations on his resume, tells The Am Law Daily that he and fellow partner Eric Tirschwell were brought in to represent Kerik about 18 months ago.

In June 2006 Kerik turned to noted New York criminal defense lawyers Joseph Tacopina and Chad Seigel for a guilty plea to two misdemeanor charges of accepting thousands of dollars in gifts and loans while employed as a city official. Still outstanding are the federal fraud charges filed in November 2007 accusing Kerik of using his position as a public official to benefit the construction company seeking municipal business.

Kerik's last lawyer in the corruption case, former federal prosecutor and current Paul, Hastings, Janofsky & Walker partner Kenneth Breen, was disqualified because he might be called as a witness at trial, Berke says. Court records show that Breen, who has not been deposed, terminated his representation of Kerik in January 2008.

Breen's former firm, Fulbright & Jaworski, sued Kerik in New York state court in October 2007, claiming Kerik was delinquent in paying more than $200,000 in legal bills. (Breen left Fulbright for Paul Hastings in April 2007 and Kerik followed him as a client.)

Glen Banks, a Fulbright litigation partner in New York who filed the suit, says the fee dispute with Kerik was settled shortly after the suit was filed. Banks declined to divulge the amount of the settlement, citing a confidentiality agreement that prevents him from discussing the matter.

But that's not the end of Kerik's legal troubles.

Kerik was indicted in May on charges that he lied to Bush administration officials vetting him for the position of Homeland Security secretary. (The charges were separated from the New York services fraud case and transferred to Washington, D.C., because that's where the alleged crimes occurred.)

Cadwalader, Wickersham & Taft complex litigation partner Michael Horowitz is serving as cocounsel to Kerik in the D.C. case with Berke; Horowitz was out of the office on Wednesday and unavailable for immediate comment.

How exactly is a former civil servant paying all of these high-priced defense lawyers?

The New York Daily News reported last November that some of Kerik's pals were planning a $75-per-plate soiree at The Brownstone banquet hall in Paterson, N.J., to help Kerik chip away at his mounting legal bills.

Coordinating that effort was New Jersey lawyer Anthony Modafferi III, who is listed as the trustee of Kerik's legal defense fund. While not counsel of record to Kerik in the fraud case, Modafferi's name has come up in recent court proceedings, namely over an e-mail the lawyer allegedly sent to The Washington Times that included details from documents that prosecutors turned over to Kerik's lawyers.

Other than confirming that Modafferi has not made an appearance in the case for Kerik, Kramer Levin's Berke tells The Am Law Daily that he can't comment on the matter.

But according to The Associated Press, Judge Robinson said in court on Wednesday that some of the information contained in the e-mail was inaccurate and cited documents under court seal. That had Robinson more than a little upset.

"You are providing information to what would loosely be called, and charitably, a loose cannon," Robinson said, calling Modafferi a "propagandist and chief fund-raiser" for Kerik. The judge threatened Kerik, who is out on bail, with jail time, citing previous warnings about improper behavior. (Kerik told New York magazine in 2005 how his once-bright career spiraled downwards.)

An individual who answered the phone at Modafferi's law office in Oakland, N.J., told The Am Law Daily that Modafferi was out of the office and unavailable for comment. A cached version of Modafferi's Twitter page shows that the lawyer linked to a Web site called Kerik Legal Trust on September 10. The site has since been taken down. Modafferi has also written opinion columns for politically conservative Web sites defending Kerik and lashing out at prosecutors.

Senior litigation counsel Elliott Jacobson and assistant U.S. attorneys Perry Carbone and Michael Bosworth are prosecuting the services fraud case against Kerik. Jacobson and Bosworth have also been designated as special assistants in the District for the false statements case.

Jacobson did not return a call requesting comment.

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