Federal prosecutors want a judge in Washington to examine whether two lawyers representing a former Capitol Hill staffer in a corruption case have a conflict of interest that could restrict their roles at trial or potentially require their disqualification.
Justice Department lawyers in the Public Integrity Section last week filed court papers suggesting a potential conflict among the defense attorneys representing Fraser Verrusio, who was charged in March 2009 in the U.S. District Court for the District of Columbia with conspiracy and false statements.
At the center of the possible conflict, according to Justice attorneys, is the work two of Verrusio’s lawyers performed for a law firm in 2008 in connection with the government investigation of Verrusio.
The two defense attorneys—Joshua Berman and Glen Donath, partners at Katten Muchin Rosenman—formerly represented Sonnenschein Nath & Rosenthal (now called SNR Denton) in 2008 when the government sought interviews from three of the firm's employees and subpoenaed records from the firm.
Sonnenschein, according to prosecutors, paid of some of the gratuities that were provided to Verrusio and that are a part of the criminal case. The firm also employed James Hirni, a lobbyist who is expected to testify for the government at Verrusio’s trial.
Verrusio is charged with accepting illegal gratuities from Hirni and others in connection to a trip to the World Series in 2003. Hirni, who pleaded guilty in December 2008 to conspiracy, is cooperating with the government.
Hirni, according to prosecutors, plans to testify that he arranged for Verrusio to attend the World Series trip at no cost in exchange for providing assistance to a client’s legislative objectives for a transportation funding bill. At the time, Verrusio was a staff member on the House transportation committee.
In 2008, court records show, the government subpoenaed records from Sonnenschein and interviewed three colleagues of Hirni—Michael McNamara, Todd Weiss and Michael Zolandz. Berman and Donath represented the firm during the witness interviews and document production.
Prosecutors said they’ve been unable to determine whether Berman and Donath acquired confidential or privileged information during their representation of Sonnenschein. Justice lawyers argue in court papers filed Dec. 30 that Berman and Donath have a duty to keep any confidential material a secret. But the defense lawyers also have an obligation to represent Verrusio “zealously and diligently.”
The DOJ lawyers explained in court papers: “Thus, a potential conflict may exist if there is a situation in which Mr. Berman or Mr. Donath obtained from Sonnenschein privileged or confidential information relevant or material to Verrusio’s defense, as they would have to choose between the two ethical duties of defending the defendant zealously within the bounds of the law and not divulging privileged or confidential information obtained from Sonnenschein.”
Berman and Donath, who entered their appearance in the Verrusio case last April, consulted outside counsel and told prosecutors there was no conflict of interest, DOJ lawyers said. Berman and Donath, however, did not agree to the government’s suggestion that another lawyer for Verrusio cross-examine Hirni. The defense lawyers said Verrusio is prepared to waive any potential conflict.
Last May, prosecutors called up Sonnenschein’s general counsel, John Koski, to talk about the possible conflict of interest. Koski, who co-chairs the firm’s lawyers’ professional liability practice, told prosecutors, among other things, that the firm is in possession of attorney-client information that is not material to the prosecution.
Verusio's lawyers, who also include Federal Public Defender A.J. Kramer and Baker Botts associate Richard Sobiecki, said in court papers on Dec. 28 that Verrusio's is opposed to any hearing in which the trial judge would investigate the nature of any conflict of interest.
Prosecutors said that if Judge Richard Roberts declines to disqualify Berman and Donath, “the Court should ascertain on the record whether the defendant can knowingly and intelligently wave the conflict of interest.”
Roberts could take up the conflict issue at a hearing later this week in Washington’s federal trial court.