Kerik Goes To Jail For Leak

Here's an interesting story about how former New York City Police Commissioner Bernard Kerik was sent to jail pending three federal criminal trials he faces on corruption and other associated charges. He had been out on bail. The judge said he leaked confidential information to a New Jersey lawyer who was not part of the defense team. The lawyer then sent the information to the Washington Times in an effort to disparage prosecutors.

The terms of Kerik's bail required him to keep all sealed information confidential. Kerik, for his part, denies he knew the lawyer would send the information to the newspaper.

According to the Times, the lawyer in question has been described by Kerik's defense team as "someone who occasionally provides free legal advice to Mr. Kerik." He had been previously described by the judge in the case as "a propagandist and chief fundraiser" for Kerik's legal defense.

There are several lessons here:

• First, just because you are a lawyer, doesn't mean you are part of the legal team -- and judges will take that into consideration when ruling on issues of privilege, access to confidential information, etc.;
  
• Second: there are ways to tell your story effectively in the "court of public opinion," but don't violate court orders. It will always come back to haunt you. Some defendants -- and their lawyers -- are two clever by half, especially in the age of electronic communications, when everything is traceable.

Now to be clear: in the old days (say, ten years ago), if you wanted to get information to a reporter "without fingerprints," you'd throw it in a plain envelope without a return address and drop it on a reporter's desk (for security, among other reasons, those days are gone). But even then, you wouldn't send information filed under seal. Even if there were no fingerprints, the judge could easily figure it out -- i.e., if it hurts one side, it probably was leaked from the other.

So there are better ways to do things without running afoul of the law or the judge. To quote trial lawyer Mark Lanier, from the new edition of my book In The Court of Public Opinion: "...certain documents were sealed by the court, so we couldn't give them out. But we could send the media to others who had the same information."

There is a bigger issue of what a judge puts under seal (and what prosecutors file under seal) and whether it is done in the interest of justice... or the interest of leverage (see my prior post, here).
More on that to come.