For the Defense - Vol. 4, Issue 4 - 41

in the indictment.7 In light of BDO's admissions, the
Court granted us permission to issue subpoenas
seeking the withheld material on the ground that
the crime-fraud exception to the attorney-client
privilege applied. The material produced by the
law firms, some of which arrived in the midst of
trial, proved to be quite valuable and opened up
important lines of cross-examination. For instance,
at the first trial, BDO's prior General Counsel (the
"GC") testified that Mr. Field had forbidden him
from getting involved in any of the company's
tax shelter matters, suggesting that Mr. Field was
trying to hide the shelter's illegality from BDO's
highest legal officer. After he gave the same
testimony at the re-trial, we impeached the GC
with the detailed billing records of outside counsel,
which clearly showed that he had been involved in
numerous phone calls and meetings with the prior
GC relating to specific tax shelter matters over the
life of the alleged conspiracy. From that, we could
argue that nothing, in fact, had been hidden from
him.
A trial subpoena issued to that same witness,
BDO's prior GC, netted a document that was key to
our defense: the witness's deposition testimony in
a civil lawsuit brought by BDO against an outside
law firm, which the government had not produced
as Jencks Act material. When that testimony was
produced to us by the witness, we learned that,
several months after the first trial, the witness had
said several things under oath at a deposition that
were exculpatory of Mr. Field, which we were able
to use to great effect in cross-examination. The key
testimony we elicited, and that the witness could

not refute in light of the deposition testimony,
was that he had never known Denis Field to do
anything that was not in the best interest of BDO.
That was certainly a far cry from the government's
depiction of Mr. Field as the consummate fraudster.
In the end, we were able to hammer home to
the jury all of the evidence that supported Mr.
Field's good faith belief in the legality of the tax
shelters and his lack of day to day involvement in
the tax shelter business, which he had delegated
to the people who ended up as the government's
cooperating witnesses. The jury, which had been
incredibly attentive during the eight-week trial,
embraced Mr. Field's good faith defense, acquitting
him on all counts in the indictment.
While every case is different, there is one
constant that it behooves trial counsel to fully
embrace: the client is the closest to the facts and
has valuable information that, if listened to with
an open mind and corroborated sufficiently, may
very well provide the key to a positive outcome.
It takes a tremendous amount of work, devotion,
imagination, and focus to develop a robust
defense to what almost always seem like iron-clad
criminal charges, but we hope that these three
examples from our experience-two acquittals,
and one dismissal of the indictment before trial-
will provide some guidance and hope to defense
counsel preparing to take on the awesome
responsibility of representing a client at trial.

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About the Authors
Sharon L. McCarthy and Jay Nanavati are partners at
Kostelanetz & Fink, LLP. Ms. McCarthy is based in the Firm's
New York City office, and Mr. Nanavati is based in Washington,
D.C. They each previously worked as government attorneys,
Ms. McCarthy as an Assistant United States Attorney in the
Southern District of New York, where she was Deputy Chief of
the Criminal Division and Chief of the Violent Crimes Unit, and
Mr. Nanavati first as an Assistant Commonwealth's Attorney for
Fairfax, Virginia, and then as a trial attorney and supervisor in
the Tax Division of the United States Department of Justice. The named clients have given the authors
permission to use their names and cases.

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