On May 1, under heavy pressure from the Dep’t of Justice, ex-U.S. Atty. Thomas E. Scott has finally quit his potion of a defense attorney for his “old friend”, indicted union boss Walter J. “Buster” Browne. Browne pled not guilty Nov. 3 to a 40-page federal indictment, brought by Scott’s former U.S. Atty.’s Office, accusing Browne and his sister, Patricia B. Devaney, of running a racketeering scheme that milked more than $400,000 from his union and four companies. Browne is president of the Marine Eng’rs’ Beneficial Ass’n Dist. 1 (a.k.a., Nat’l Fed’n of Public & Private Employees) headquartered in Fort Lauderdale, Fla.
Then on May 7, U.S. Magis. Judge Linnea R. Johnson (S.D. Fla.), who previously rebuffed DOJ’s efforts to throw Scott and co-counsel Steven E. Chaykin off the case, ruled that Chaykin, should be barred from representing Browne because of an irreconcilable conflict of interest. “The public perceptions of fairness of the trial; the need to ensure that criminal trials are conducted within ethical standards; and the trial court’s need to ensure that the trial remains free from future attacks based upon these issues weigh more heavily on balance,” Johnson wrote. “That is, the likelihood
of public suspicion outweighs the social interest which will be served by a lawyer’s continued participation in this case.”
Johnson’s report is in the form of a recommendation to U.S. Dist. Judge Daniel T.K. Hurley (S.D. Fla., Clinton), and won’t be final unless he accepts it. Browne intends to ask Hurley to reject the magistrate’s recommendation concerning Chaykin.”It’s not like going to a grocery store and getting this or that kind of soup. If I can’t have [Chaykin], I’ll have to start all over,” complained Browne.
In Mar. 2002, DOJ asked the court to bar Scott and Chaykin from representing Browne because their firms also represent star government witnesses against Browne. Scott, who was U.S. Atty. for the S. Dist. of Fla. from Aug. 1997 until May 2000, is a partner at Cole Scott & Kissane. Chaykin is a partner in the Miami office of Zuckerman Spaeder. The trial of Browne had been scheduled for the week of May 6 but was delayed by the fight over who will represent him.
Scott was Browne’s attorney in 1993 when a federal judge acquitted the politically influential boss of federal mail fraud charges. He again represented Browne in 1996 when Browne pled guilty in federal court in Washington, D.C., to a reduced charge of misdemeanor mail tampering in an alleged scheme to rig a 1988 union vote. After Scott became U.S. Atty., he was recused from any involvement in DOJ’s criminal case against Browne.
After Scott and Chaykin informed the court they were taking over Browne’s defense, DOJ moved to bar Scott from the case. DOJ trial attorney Julia J. Stiller argued that Scott’s recusal during his tenure as U.S. Atty. was not complete, and that allowing him to represent Browne would violate a federal law aimed at dispelling the public perception of a revolving door between public and private service. But Johnson allowed Scott to stay on the case. Later, Stiller renewed the government’s efforts to disqualify Scott and Chaykin after discovering their law firms represented key witnesses against Browne.
One basis for DOJ’s was that Scott’s law partner, Richard Cole, represents the Dist. 1’s accountants through the union’s insurance company. Those unidentified accountants are with the firm Poole Goldstein. The alleged conflict involving Scott and his law firm became moot with Scott’s May 1 withdrawal.”This motion to withdraw is made in order to avoid any appearance of impropriety, to eliminate the expenditure of additional judicial resources on this matter and to allow Mr. Browne and his remaining co-counsel [Chaykin] to devote their resources to preparing his defense, rather than continuing to have their attention be diverted by this collateral matter,” Scott’s motion said.
DOJ asked for Chaykin’s disqualification on conflict of interest grounds because one of his colleagues at Zuckerman Spaeder represents ex-union official Donna Fisher, another key witness against Browne who also is a plaintiff in federal litigation against the union’s pension fund in Md.
Fisher and the others sued the pension fund after a pension administrator denied their claims to various credits created by changes in the pension plan that were enacted when the union was merged in 1988. The administrator denied the claims, citing corruption in the merger vote; that corruption led to guilty pleas by several union officials, including Browne, for mail tampering. Fisher won her suit and was awarded $2.4 million; Zuckerman Spaeder was awarded $240,000 in legal fees. An appeal in the case is pending. Johnson ruled that Zuckerman Spaeder’s simultaneous work on Fisher’s behalf in the Md. civil suit and on Browne’s behalf in the Fla. criminal case creates “an actual conflict of interest” for the firm and for Chaykin.
Johnson’s ruling also offered a preview of Fisher’s testimony as a witness against Browne. Johnson wrote, “Donna Fisher will testify that she heard the accountants advise Mr. Browne that the union finances were not in order in that the record keeping was inadequate; that she attended various mandatory and general union meetings and there were no detailed financial report to the members as required by the bylaws; that Mr. Browne appointed a Broward County custodian as the secretary/treasurer and that as far as she knew he was ill-equipped for the task; that she observed gambling in the union hall and loudly objected in Browne’s presence; that she was told by Browne to sign paperwork that she felt was not in order; and that Browne told her that he knew his sister, co-defendant Devaney, was embezzling union funds before such was commonly known.”
That kind of direct testimony will put Fisher’s credibility at issue, and would put Chaykin in a conflicted position, according to Johnson. “Mr. Chaykin will have to cross-examine at length a current client,” the magistrate wrote. “Her civil appeal remains pending on the merits and her relationship with the Zuckerman Spaeder firm is ongoing. That appeal directly impacts the Zuckerman Spaeder firm financially, in that some $240,000 in attorney fees remains on the line.”
When Browne’s trial finally takes place, it should be a “doozy” according to the Palm Beach Daily Business Rev. Browne says DOJ’s trial strategy against him is aggressive. And people who never went before the grand jury that indicted him are now getting subpoenas to appear at his trial. Browne added the prospective witnesses are creating a mini-boom in the criminal defense bar. “Everybody and anybody I know is under a subpoena, dozens and dozens of people,” Browne said. “As a matter of fact, all of the lawyers I would prefer to use, I can’t, because they’re using them.” [Palm Beach Daily Business Rev. 5/15/02]