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Assignment of prosecutor to federal tax case troubles experts

A Pittsburgh-area man who is charged with tax fraud is asking the federal court to dismiss the charges against him because the prosecutor assigned to his case was privy to private conversations between himself and a prospective defense attorney. Some outside observers agree that the U.S. Attorney Office's made a "dysfunctional" decision to have the prosecutor take the case despite the apparent conflict of interest.

The defendant was indicted in 2011. Federal prosecutors accuse him of tax fraud for allegedly underreporting income from businesses he owned and violating terms of his 1996 plea agreement over a check kiting scheme. He has pleaded not guilty to the current charges.

The prosecutor assigned to the case was working at a criminal defense firm when the defendant was looking for an attorney to defend him on the tax charges. He held a meeting with an attorney at the firm that the prosecutor sat in on, according to the defendant's attorneys. During that meeting, the defense attorneys say, the defendant divulged confidential information relevant to the case. Some legal ethicists say that means the prosecutor should be disqualified from handling the case.

Instead, she is prosecuting the case and perhaps using her knowledge from the confidential meeting to bolster the case. "Clearly, something dysfunctional happened here," said one law professor who is following the case. "[The assistant U.S. attorney] clearly can't do it if she learned confidential information about the case from this defendant."

Some readers may wonder if the fact that the defendant did not hire the prosecutor's former firm makes a difference. But in general, any meeting between an attorney and a prospective client is protected by attorney-client privilege, even if the attorney is not hired.

Source: Pittsburgh Post-Gazette, "Defendant not contests tax charges after serving six years for check kiting," Len Boselovic, Sep. 9, 2012

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