New Kerik Complaint Ratchets Up Charges

The nasty, and very personal, litigation between Bernie Kerik and high-profile lawyer Joe Tacopina has this week morphed into something extra-special for courthouse observers (or at least me). The newest claims unveiled by Bernie earlier this week have added several new plot twists, including some salacious allegations about sexual escapades, drug abuse, and bombshell civil RICO claims against Tacopina.

Background: it's no secret that Bernie Kerik -- former NYPD commissioner and almost-head of Homeland Security turned federal felon -- recently launched a jihad against his former lawyer and friend, Joseph Tacopina, claiming, in simple terms, that Tacopina ducked out of a federal investigation by snitching on Bernie. In the process, Bernie alleges, Tacopina coughed up attorney-client confidences, committed malpractice, and was an all-around no-goodnik. These claims were offered in a federal lawsuit (filed in NJ and then transferred to federal court in Manhattan) and a grievance complaint to the local bar. These claims also pale in comparison to what Bernie is now alleging.

Tacopina responded immediately with a lawsuit against Bernie and two reporters from the Daily News. He has since dropped the journalists from the suit. He also moved to dismiss the complaint and then moved for sanctions, arguing that the factual claims were falsely presented and the legal claims time barred or otherwise without merit. They were aggressive filings and Tacopina appeared to be in control of the litigation. 

But then, earlier this week, Bernie unveiled a recording he had made of a conversation between he and Joe.  A conversation Tacopina had said had never taken place. And then Bernie filed an amended complaint (a copy is readily available through this online New York Daily News article). The allegations are pretty staggering.

For instance, Kerik claims that Tacopina's firm is a criminal enterprise engaged in extortion and fraud. Kerik details sexual liaisons by Tacopina that he allegedly engaged in as a means to promote himself through the media. More precisely, Kerik's complaint alleges: 

14.   The principle purpose of the Tacopina Firm was to generate money for its members, partners and associates. This purpose was implemented by members, partners, and associates of the Tacopina Firm through various criminal activities, including extortion, wire fraud, and obstruction of justice. The members, partners, and associates also furthered the enterprise’s activities by threatening economic and reputational injury to anyone who stood in their way. They also rewarded those members of the press who wrote positive articles about Tacopina and the Tacopina Firm by giving them secret information about their clients, without authorization, and to their client’s detriment. 

15.   Although the primary purpose of the Tacopina Firm was to generate money for its members, partners, and associates, the members, partners, and associates at times used the resources of the firm as a vehicle to settle personal grievances, manipulate the media, and present a false public image to protect the reputation of the enterprise, as well as its members, partners, and associates, and others. 

16.   In order to advance the money making goals of the enterprise, Defendant Tacopina made significant efforts to create a grossly exaggerated public image of his skill as an attorney. 

17.   In November 2005, the Tacopina Firm was retained to represent Melanie McGuire in the New Jersey criminal case known as the “Suitcase Murder.” The case received significant media attention and Defendant Tacopina used the case as an opportunity to boost his legal career. During the 1 ½ year litigation Tacopina began to engage in an extra-marital affair with Individual A 2, a producer from a major national television network. At the time, Individual A was married to a man who was an acquaintance of Tacopina’s. The two began their illicit liaisons at the Heldrich Hotel in New Brunswick, New Jersey.

18.   On information and belief, Defendant Tacopina attempted to take advantage of his illicit relationship with Individual A, as well as her high ranking position within the news organization to orchestrate a public relations campaign that falsely inflated his own accomplishments and skills in order to further the business of the Tacopina Firm. Tacopina’s target objective was to try to cause Individual A to compromise her journalistic integrity in an attempt to insulate Tacopina from derogatory coverage of his poor performance in the failed defense of Melanie McGuire, and the large scale dissemination of deceptively positive press coverage. Tacopina also attempted to leverage his relationship with Individual A to gain employment with the network as an “independent” legal analyst. 

19.   Defendant Tacopina also carried on a long term affair with Individual B, a cable news television personality. Defendant Tacopina used his relationship with Individual B to get himself repeated appearances on Individual B’s show and others, as well as to ensure that he received excessively positive treatment in the network’s coverage.

There's more. Lots more. The complaint charges that Tacopina has engaged in a pattern of racketeering since 2006 and asks the Court to dissolve his firm and award treble damages. In addition to claiming that Tacopina's cooperation with federal prosecutors was the "but for" cause of Kerik's conviction, Bernie also says Tacopina abused prescription pain medication, maintained fraudulent business records, and attempted to bludgeon reporters into compliance or silence by threatening lawsuits. 

Tacopina's attorney, Judd Burstein, told the Daily News that the newest allegations are "outrageous" and that the factual claims are "tremendously shocking" and "false." Burstein called the underlying racketeering cause of action "a ridiculous theory, more ridiculous than his previous theories." Not surprisingly, Burstein promises that he will challenge these claims through motion practice, and I have no doubt this will happen shortly. 

Whether Bernie has the goods to make out a RICO case remains to be seen. Mere speculation won't do Kerik much good, and the absence of any substantive evidence will leave him in a very bad place in terms of Tacopina's counter claims for defamation. But if there's fire under the smoke, then Joe Tacopina's in a precarious position. I have no skin in the game; I don't know either party and don't really care how it all shakes out in the end. The destination isn't all that interesting, it's the trip that's the fun part.

I had previously written that the lawsuit as originally filed was great theatre (see, e.g., here, here, and here). It turns out I was wrong. It was merely the warm up act for Kerik's amended pleading, the filing of which could be characterized as going nuclear. 

A lot of local New York lawyers, no doubt including well established members of the criminal defense bar, are watching the proceedings with a combination of amusement and amazement. Certainly I am.