Sunday, June 12, 2016

Lawyers Ordered to Testify on Client’s Tax Evasion Case


It is not every day that two prominent lawyers are brought before a federal grand jury and directed to provide documents and testimony about conversations they had with a wealthy client.

But that is what happened with two partners at Williams & Connolly, the prestigious Washington law firm, who are representing Morris E. Zukerman, a former Morgan Stanley banker and oil investor. Last month, Mr. Zukerman was accused of failing to pay $45 million in income and sales taxes on works of art and profits from the sale of an oil company.


A series of court filings in Mr. Zukerman’s pending criminal case in Federal District Court in Manhattan shines a light on the often-unseen role lawyers can play in nonpublic tax investigations by the Internal Revenue Service and federal prosecutors. In the filings, federal prosecutors in Manhattan raised the prospect of potential conflict of interest for the two lawyers, who are trying to negotiate a plea deal for Mr. Zukerman.

Typically, lawyers cannot be compelled to testify or produce evidence against a client in a grand jury investigation. But in rare cases, judges can require it, if there is evidence that clients’ communication with their lawyers was done purposely to further a crime or a fraud. In the law, it is known as the crime-fraud exception to the attorney-client privilege.

The indictment of Mr. Zukerman comes as the leak of the Panama papers — confidential documents from Mossack Fonseca, a law firm in Panama that catered to the very rich — has helped renew interest in the lengths to which wealthy people will go to avoid paying taxes.

Federal prosecutors contend that Mr. Zukerman, 71, failed to report a profit from the sale of an oil company that would have generated $31 million in income taxes and misled his accountants and lawyers in the course of an I.R.S. audit. He also had expensive paintings that he bought for his Upper East Side home shipped to Delaware and New Jersey to avoid paying sales tax, prosecutors say. He is expected to plead guilty later this month.

The two lawyers from Williams & Connolly, James A. Bruton III and James T. Fuller III, are both seasoned white-collar defense lawyers who specialize in tax law. They were ordered last summer by a Manhattan federal judge to appear before a grand jury that was investigating Mr. Zukerman to determine whether he had used the lawyers during the course of that I.R.S. audit and inquiry to conceal his activities.

Prosecutors, in a filing with the court, said Mr. Zukerman had the lawyers prepare “a tax protest letter” that challenged “certain audit determinations previously made by an I.R.S. auditor.”

A federal appeals panel upheld the judge’s directive to the lawyers in a decision last October. The brief ruling from the United States Court of Appeals for the Second Circuit did not name either of the lawyers or Mr. Zukerman because the grand jury investigation was continuing at the time.

Federal prosecutors working for Preet Bharara, the United States attorney in Manhattan, asked another federal judge on Wednesday to decide whether Mr. Bruton’s and Mr. Fuller’s appearances before the grand jury pose a potential conflict of interest and whether Mr. Zukerman was sufficiently aware of those potential conflicts.

Wearing a dark suit and round tortoiseshell glasses, and using a cane, Mr. Zukerman told Judge Analisa Torres of the Federal District Court in Manhattan that he was aware of a conflict of interest and was waiving his right because he was “the source of the information” his lawyers gave the I.R.S.

The judge pressed him several times but eventually allowed Mr. Zukerman to waive his right to raise the conflict as a future issue.

The so-called Curcio hearing is used in federal court to make sure a criminal defendant is fully aware of the ramifications of retaining a lawyer who may have a potential conflict of interest.

Prosecutors said in one letter that Mr. Bruton and Mr. Fuller could be witnesses at Mr. Zukerman’s trial “as a result of the defendant’s use of the attorneys to convey false information to the Internal Revenue Service during a civil audit.”

It is uncommon for the government to subpoena lawyers to testify before a grand jury, said Daniel C. Richman, a professor of criminal law at Columbia University.

“This case itself highlights the complications obtaining such testimony can create. And it involves a target apparently ready to plead guilty,” Mr. Richman added.

There is no suggestion in the court filings that either lawyer did anything wrong.

But the unusual series of events underscores potential conflicts that can occur in tax evasion cases involving wealthy individuals who rely on a bevy of legal and accounting experts to give them advice and help find ways to minimize tax burdens.

In light of the potential conflict, Mr. Zukerman had reached out to another lawyer, Henry Putzel III, who was at the hearing.

Representatives for Williams & Connolly declined to comment for this article.

The seemingly awkward situation between the lawyers and a client stems from a 2012 audit by the I.R.S. related to Mr. Zukerman’s sale of a stake in an oil company for $275 million, according to the indictment. But when he was audited, Mr. Zukerman failed to provide documents to his accountant. He later employed Mr. Bruton and Mr. Fuller at Williams & Connolly to challenge the I.R.S.

The two lawyers interviewed Mr. Zukerman on June 1, 2012, over the phone. In that interview, he lied about his company’s sale of the oil company, according to the government. When he was later asked to provide the documents to support those claims about the sale, Mr. Zukerman emailed, promising to provide the lawyers with all the documentation, which he said was in storage, the indictment says.

Yet Mr. Zukerman failed to do so by June 22, when his appeal letter was scheduled to be sent to the I.R.S., and so the final letter sent by Williams & Connolly and signed by Mr. Zukerman was based on false assertions, the indictment says.

For two more years, Williams & Connolly sent at least four requests to Mr. Zukerman to provide the documents supporting his claims.


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