Alleging freshly discovered evidence of “unethical” conduct, the Dep’ t of Justice is asking a federal judge in W. Palm Beach to block ex-U.S. Atty. for the S. Dist. of Fla. Thomas E. Scott, Jr., and co-counsel Steven E. Chaykin from representing indicted Broward union boss Walter J. “Buster” Browne. DOJ accuses Scott’s firm, Cole Scott & Kissane, and Chaykin’s firm, Zuckerman Spaeder, with simultaneously representing Browne and “key” government witnesses expected to testify against Browne. The witnesses: unnamed accountants at a accounting firm Poole Goldstein, auditors of the books for Browne’s Nat’l Fed’n of Public & Private Employees since 1997, and Donna Fisher, a now retired union official who worked for Browne as president of the private division.
“The proposition at bar – that the court allow the defendant to substitute counsel who will represent the accused and the witnesses against him – would unethically divide counsels’ loyalty and render their proposed assistance ineffective,” writes DOJ trial attorney Julia J. Stiller. “Because this court has an independent interest in ensuring the integrity of the proceedings against defendant Browne, the government urges the court” to exclude Scott and Chaykin.
In a response filed Apr. 10, Chaykin conceded those client relationships exist. But he downplayed the seriousness of the matter. He said it was part of “the government’s relentless effort to deprive Mr. Browne of his Sixth Amendment right to counsel of his choice.” Chaykin adds, “The challenged representations are not adverse, and the interests of the clients will not be compromised by the law firms’ representation of Mr. Browne.”
Browne, an ex-Port Everglades commissioner, is the politically formidable president of NFPPE, which is an affiliate of Dist. 1 of the Marine Eng’rs Beneficial Ass’n. In Nov. 2001, Browne and his sister, Patricia Devaney, were indicted by a federal grand jury in Ft. Lauderdale on charges of running a racketeering and payroll embezzlement scheme that stole hundreds of thousands of dollars from the union and four local companies. Devaney used to work as Browne’s administrative assistant.
Early on, Barry G. Roderman of Ft. Lauderdale was Browne’s lawyer. On Jan. 29, however, Scott and Chaykin announced they were taking over Browne’s defense. Scott represented Browne twice before in criminal cases – in 1993 when a federal judge acquitted Browne of mail fraud, and, in 1996, when Browne pleaded guilty in Washington, D.C., to a misdemeanor federal charge of mail tampering in an alleged scheme to rig a 1988 union vote. DOJ immediately moved to remove Scott from the latest case. They argued, among other things, that Scott had a conflict of interest because Browne’s indictment was assembled during Scott’s service as U.S. Attorney in DOJ’s Miami office. Scott served in that role during the Clinton Administration from Aug. 1997 until May 30, 2000.
But Scott, who’s also a ex-U.S. Dist. Judge (S.D. Fla., Reagan (1985-1990)), recused himself from involvement in DOJ’s investigation of Browne shortly after taking office. And because of that, and despite the government’s insistence that Scott remained conflicted because his office nonetheless had limited official duties in the case, Chief U.S. Magis. Judge Linnea R. Johnson (S.D. Fla.) in West Palm Beach ruled for Scott on Mar. 5. She held that federal conflict of interest laws don’t forbid Scott from accepting Browne as a client. Trial is now set for May 6.
Meanwhile, DOJ is appealing Johnson’s ruling about Scott to U.S. Dist. Judge Daniel T.K. Hurley (S.D. Fla., Clinton). DOJ’s pleading also asserts “additional newly discovered grounds” for excluding Scott and Chaykin. According to court papers, federal authorities started to piece together the alleged conflicts after spotting Scott’s law partner, Richard Cole, in the courtroom gallery during the hearing when Johnson ruled that Scott could represent Browne. Cole had represented the union’s accountants through the union’s insurance company and was “present when the government questioned the accountants,” the court papers say. But no one working DOJ’s case knew that Cole was Scott’s law partner until Cole was asked about it in court that day, the government says. DOJ checked the websites of both Cole Scott & Kissane and Zuckerman Spaeder, a national firm, for more information. The court papers say those checks disclosed a similar client conflict for Chaykin and his firm, Zuckerman Spaeder.
“The Zuckerman Spaeder site posts a banner headline proclaiming ‘Federal Judge Finds Pension Plan Retaliated Against Former Union Officers: Awards them More than $2 Million,” the appeal says. The posted story describes how a Zuckerman Spaeder lawyer in Md. won $2.4 million, plus $240,000 in fees, for successfully representing Donna Fisher – the former union subordinate to Walter Browne who’s now a government witness – in a civil lawsuit involving MEBA’s pension plan. Zuckerman Spaeder continues to represent Fisher during an appeal of that case.
DOJ argues that Fisher has been questioned by federal authorities, and will be called to testify in a substantial way at trial about Browne’s “overall conduct as it relates to specific racketeering acts.” And because of that, the government alleges, Zuckerman Spaeder has an “irreconcilable” loyalty problem with both Browne and Fisher. “The interests of the defendant diverge from those of the witnesses,” says the appeal. “It is in Browne’s interest to discredit Ms. Fisher, who has long fought to distance herself from corrupt union leadership, and attack her conduct as president of the private division.”
Scott’s law firm faces the same kind of conflict in its representation of the Poole Goldstein accounting firm, the appeal says. Federal agents have questioned Poole Goldstein accountants who audited the books of Browne’s union and subpoenaed their work papers. The accountants’ “extensive knowledge” of the union’s finances, and their “interactions” with Browne will be featured at trial, the government appeal says. “It benefits Browne to shift the blame for the financial mismanagement of the union away from himself and onto the accountants, who by comparison would undoubtedly be exposed to [civil] liability through charges of professional incompetence,” the appeal says.
“Permeating these inconsistent interests are counsel’s own pecuniary interests in retaining significant clients,” says DOJ’s appeal. “Donna Fisher is worth $240,000 in attorney’s fees to Zuckerman Spaeder and is part of a $2.4 million verdict being challenged on appeal. Likewise, for a firm [Cole Scott & Kissane] that heralds insurance defense as the ‘mainstay’ of its practice, the relationship between the accountants and insurance company with Cole Scott & Kissane is presumably substantial.”
Additionally, DOJ is concerned about the potential for Browne’s defense counsel to “improperly use privileged communications” from their other clients. “It … does not take a considerable leap in logic to assume that lawyers at Cole Scott & Kissane reviewed the [subpoenaed] work papers prior to their submission and have, as well, questioned the accountants, especially in light of the accountants’ cautionary warnings to the union that its internal controls were weak,” the appeal says. [Miami Daily Business Rev. 4/12/02]