07202017 - News Article - Conflict will have to be resolved as new U.S. Atty Kirsch moves from defense to prosecution

Conflict will have to be resolved as new U.S. Atty Kirsch moves from defense to prosecution
NWI Times
Jul 20, 2017
http://www.nwitimes.com/news/local/crime-and-courts/conflict-will-have-to-be-resolved-as-new-u-s/article_3628a3e7-4ee5-5df3-aa20-be04029683f0.html

HAMMOND — Thomas Lee Kirsch II's latest career move could require some shuffling by clients and the federal prosecution of Portage's mayor.

The White House announced last week it is nominating Kirsch to replace interim U.S. Attorney Clifford Johnson.

Jay Kenworthy, a spokesman for U.S. Sen. Todd Young, R-Ind., said Monday confirmation hearings may not be scheduled for some months. Kirsch, a Republican sponsored by Young, is expected to win approval from the Republican-controlled U.S. Senate.

Once confirmed, Kirsch would direct the prosecution of hundreds of criminal cases in the U.S. District Courts in Hammond, South Bend, Fort Wayne and Lafayette.

Except one, according to legal experts knowledgeable in state and federal ethics standards.

Portage Mayor James Snyder hired Kirsch last year to stand by his side during a Nov. 18 arraignment to answer federal charges of bribery, solicitation of bribery and providing false information to the Internal Revenue Service to conceal income and assets to repay a tax debt.

Snyder, who has pleaded not guilty, has included Kirsch on his defense team since then. Federal prosecutors in Hammond, soon expecting to be under Kirsch's supervision, are preparing evidence against Snyder, whose trial is set to begin in January.

The U.S. Department of Justice spokesman declined to comment.

The Standards of Conduct page of the DOJ's Offices of the U.S. Attorneys' website states that on entering the department for duty, attorneys must, in general, withdraw from all cases they are currently handling and avoid an appearance of biased or less-than-impartial conduct.

"Clearly, he cannot prosecute his former client," Donald Lundberg said this week. Lundberg is an Indianapolis lawyer and a former Indiana Supreme Court investigator of lawyer ethics. He also specializes in helping set standards of ethics and professional responsibility for the American Bar Association.

"The question then becomes whether his conflict of interest can be imputed to his entire (U.S. attorney's) office," Lundberg said. "If it is, then the entire office is disqualified."

Lundberg said he believes the DOJ has guidelines governing potential conflicts and when a U.S. attorney must be recused from a case. "I can guarantee you this is not the first time this has arisen," Lundberg said.

He said Indiana state prosecutors commonly recuse themselves from cases in which they have conflicts of interest with the defendant, requiring the appointment of a special prosecutor, often from a different county.

Lundberg said an Indiana attorney is generally prohibited from using the secrets learned from a former client to later put that client in jeopardy.

"General conflict-of-interest principles come into play. A lawyer can never be adverse to a former client in the same or substantially related matter," he said.

Neither Kirsch nor Snyder could be reached for comment.

Kenworthy, of Young's office, said U.S. attorney nominees routinely are asked to report any potential conflicts to the U.S. Office of Government Ethics. A spokesperson for that office declined comment

"The Department of Justice could take this prosecution outside the (Northern Indiana) district altogether and essentially recuse the entire (Hammond) office because of Tom's position there," said Larry Mackey, an Indianapolis attorney and former federal prosecutor for 19 years in Illinois and downstate Indiana.

"The prosecution could then fall to a public corruption section (of lawyers) in Justice Main in Washington, D.C., that handle cases all around the country.

"Another alternative is for a prosecutor from another district, from Chicago, for example, to be appointed for purposes of that prosecution. The direction, decision making and strategy would be done by somebody other than Tom," Mackey said.

"A third option would be to keep the leadership of the prosecution inside the Northern Indiana District's office and simply wall off their decision making in the case from (Kirsch)."