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Jul 13 2011

Gov’t Seeks to Remove Lawyer From Criminal Case: A Warning to All Lawyers

Persons and corporations charged with federal offenses are wise to carefully select qualified counsel to represent them in Federal Court.

Hip Hop mogul James “Jimmy Henchman” Rosemond (he manages The Game, Brandy and Akon among others) did just that when he retained Jeffery Lichtman, one of NY’s most prominent and skilled Federal criminal defense lawyers. Rosemond is accused of running a national crime syndicate that distributes cocaine. He paid Mr. Lichtman a $150,000 retainer (all in cash). Mr. Lichtman filled out and filed the appropriate IRS forms for having received more than $10,000 in US currency.

This information led the US Attorney’s Office to move to disqualify and bar Mr. Lichtman from serving as Rosemond’s attorneys. The gov’t alleges that the cash payment is evidence of illegal activity. It also claims that Lichtman is “house counsel” to the alleged enterprise run by Rosemond by virtue of his having represented other Rosemond associates in the past. Finally, it claims that Lichtman sent an investigator to interview the informant in this matter who alleges that after that interview he was intimidated by one of Rosemond’s associates, which led to Rosemond being charge with obstruction of justice. The prosecutors added that Mr. Lichtman’s contact with the informant was “a critical link in the chain of events charged in the obstruction-of-justice count.” Yet the prosecutors acknowledged that they had absolutely no evidence Mr. Lichtman was aware of his client’s actions.

Please understand that no matter how good your lawyer is, the gov’t has a tremendous advantage in Federal criminal matters. Defending someone accused of a federal crime is a daunting task under the best scenarios. You’ve heard the phrase “Don’t make a federal case out of it?” The US government normally does not file criminal charges until all their ducks are in a row and their investigation is completed. Often, the case has already been presented to a Grand Jury and the client indicted. So taking out a defendant’s counsel of choice who has been working on the matter for sometime would be a serious blow to the defense on top of the advantages the gov’t already has.

This tactic was used successfully to remove Bruce Cutler as attorney for mob kingpin John Gotti. After several obtaining several acquittals and hung juries on Gotti’s behalf, the court granted the US attorney’s motion and barred him from continuing to represent the Dapper Don. Gotti was subsequently convicted and died in jail. Judge Gleeson has broad discretion in deciding whether Mr. Lichtman should be disqualified if his continued representation “threatens the integrity of the trial process.”

This is a cautionary tale for lawyers who would jump into this pool. If this motion is successful, you could be barred from representing your client if he is later accused of trying to intimidate a witness you interviewed. You really have no choice, because as Mr. Lichtman said in response to the motion, “Every lawyer has an ethical obligation to interview witnesses.” (quoted in today’s NY Law Journal). Many lawyers receive cash payments for fees. Does this require them to inquire if it came form a legal source from their client? I have to admit it is a little curious why Mr. Lichtman would not have told Rosemond to give him a bank check instead, after all he has plenty of money form his entertainment business. But Lichtman was hardly pocketing the cash – he reported it immediately by filing the proper documents. It is highly doubtful that “house counsel” would do that knowing the IRS would learn that Rosemond made a $150,000 cash payment – sure to set off bells and whistles.

Judge Glasser must balance all of these allegations against the Constitutional guarantee that a defendant should have access to the counsel of his choosing and that having made that choice, it is not to be taken away lightly. But the gov’t is also doing this to send a message to all attorneys that when they take on high profile cases, their actions will be scrutinized as well.

Mr. Lichtman, in an interview with the NY Law Journal, called the government’s motion an “almost laughable” attempt to tar him with wrongdoing “for ethical and legal” steps he had taken to defend Mr. Rosemond. I agree that it seems to have a weak basis, but I do not think the criminal defense bar is laughing about it.

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