Kirkland & Ellis LLP lawyers may stay on a “dream team” of defense lawyers in a high-profile criminal case despite a potential conflict of interest with other Kirkland clients, a federal judge in Manhattan held Feb. 15 ( United States v. Zarrab , S.D.N.Y., No. 15 Cr 867 (RMB), 2/15/17 ).
The ruling is a blow to federal prosecutors who accuse wealthy Turkish national Reza Zarrab of plotting to evade U.S. sanctions against Iran, along with money laundering and bank fraud.
At issue was whether Kirkland & Ellis lawyers—including former Assistant Attorney General Viet D. Dinh and former Solicitor General Paul Clement—must be disqualified because other Kirkland lawyers represent eight banks through which prosecutors say Zarrab illegally channeled U.S. dollars to Iran.
Clement and Dinh, along with all their team at appellate litigation boutique Bancroft PLLC, joined Kirkland last fall.
Judge Richard M. Berman said Zarrab has a team of “very able defense lawyers.” He referred to an Aug. 2, 2016 New York Times article by Benjamin Weiser, “Turkish Gold Trader Builds a Dream Team of Defense Lawyers.”
Famed defense lawyer Benjamin Brafman is Zarrab’s primary defense counsel.
The government said the court should disqualify Kirkland because the firm’s concurrent representation of Zarrab and the banks would tie its lawyers’ hands as defense counsel and imperil his constitutional right to effective assistance of counsel.
However, New York University law professor Stephen Gillers provided a letter saying that in light of Zarrab’s informed consent, Kirkland’s continued representation of Zarrab and the banks is consistent with the firm’s obligations under the New York Rules of Professional Conduct.
Gillers also provided a supplemental letter saying it was nonsensical to posit that Zarrab would get effective counsel if Brafman worked alone but not if Kirkland lawyers provide assistance with limitations Zarrab accepted. “Arithmetically, it is like saying that 5+3 is less than 5 because it is not 5+5,” Gillers said.
The court found that Zarrab—with “eyes wide open”—knowingly and rationally waived the potential conflict posed by Kirkland’s concurrent representation of the banks.
It pointed out that Zarrab’s written waiver acknowledges multiple ways in which Kirkland’s representation of the bank clients gives the banks an advantage over Zarrab, such as the inability of the Kirkland & Ellis lawyers to argue that the banks were not victims and the lawyers’ unavailability to examine or cross-examine personnel of the bank clients.
The court noted that Dinh and Clement currently represent HSBC in a Second Circuit appeal involving charges that HSBC didn’t take precautions to ensure that these alleged illegal transactions benefiting Iran took place. The ethical wall that Kirkland established between its representation of its bank clients and Zarrab doesn’t apply in the HBSC case, Berman said.
However, Zarrab apparently accepts these limitations because he has confidence in the value of Kirkland’s representation and because he has qualified primary counsel who appear to be conflict free, the court said.
The U.S. Attorneys’ Office for the Southern District of New York represents the government. Zarrab’s defense counsel include Brafman & Associates P.C., Kirkland & Ellis, Sullivan & Worcester LLP, Quinn Emanuel Urquhart & Sullivan LLP, Ferrari & Associates P.C., and Clifford Chance US LLP.
To contact the reporter on this story: Joan C. Rogers in Washington at email@example.com
To contact the editor responsible for this story: S. Ethan Bowers at firstname.lastname@example.org
Copyright © 2017 American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)