Legally Speaking: The Great Pretender

John G. Browning Nov. 5, 2009, 7:10am

In the film "Catch Me If You Can," Leonardo DiCaprio played a character (based on a true story) who leads federal agents on a merry chase as he poses as an airline pilot, a doctor and a lawyer, leaving a trail of forged checks in his wake.

The unfortunate clients of "lawyer" Howard O. Kieffer must have thought they were experiencing a case of Hollywood dejà vu recently when they learned their attorney wasn't one after all.

It all began with an unhappy client. A North Dakota man who had been accused of child pornography was disappointed with Kieffer's representation (which cost him $37,000) and wrote to a federal judge in Bismarck, N.D., raising questions about whether Kieffer had ever been a licensed attorney.

That judge asked Mr. Kieffer to provide documentation of information he had given in his application for admission to practice before that federal court: nothing too difficult to come up with, just proof of graduating from Antioch Law School in Washington, D.C., and evidence of Kieffer's good standing with the California-based 9th U.S. Circuit Court of Appeals.

There were just a few teensy-weensy little problems with Kieffer's story. As he admitted in a letter to the judge, he didn't graduate from Antioch Law School. It would have been difficult for him to even attend Antioch, since the school shut down in 1992.

Kieffer, you see, was otherwise occupied at that time; he was incarcerated in the U.S. Bureau of Prisons from 1989 to 1993, serving a sentence for tax fraud. Not only was he not a law school graduate or licensed to practice law in any jurisdiction, Kieffer hadn't even completed college.

Once he came clean with the judge in North Dakota, Kieffer's house of cards came down in a hurry. North Dakota prosecutors charged the 51-year-old sham lawyer with making false statements to a government agency and mail fraud. Kieffer was convicted, and sentenced to 51 months in federal prison and ordered to pay $152,750 in restitution.

Then he was indicted in Colorado on charges of mail fraud, making false statements and contempt of court (he was set to be arraigned on Oct. 27). If convicted of these charges, Kieffer faces an additional 35 years in prison and a $1.2 million fine.

The Colorado charges stem from Kieffer's representation of Gwen Bergman in a May 2008 murder-for-hire case in federal court in Denver. Bergman was found guilty of hiring someone to try to kill her ex-husband, and sentenced to nine years.

Bergman is appealing her conviction on the grounds that she was not represented by counsel, and she's also filed suit against Kieffer, seeking damages as well as the return of the over $50,000 that the legal imposter received for representing her in what is believed to be the only case he actually tried.

Ms. Bergman has a lot of company. According to a Denver Post investigation, Kieffer represented at least 18 federal defendants and filed motions in at least 12 states, usually involving post-conviction motions.

One of his higher-profile cases was that of former St. Louis Blues hockey player Michael Danton, who pleaded guilty in 2004 to plotting to kill his agent (Danton was paroled in September 2009).

In the Western District of Missouri, a judge halted proceedings on a sentence-reduction motion Kieffer had filed on behalf of David Oliver Reed, who had been convicted of sexual exploitation of minors. Kieffer's deception also led federal prosecutors to dismiss a sentence-reduction motion filed by Kieffer for convicted marijuana trafficker Edwin Stupka.

Although the Denver Post's investigation went back as far as 2004, Kieffer's scam may have played out over an even longer period of time. The "firm" Kieffer listed on motions, Federal Defense Associates (with offices in Santa Ana, Calif., and Duluth, Minn.), was first registered with the Orange County, Calif., recorder's office in 1993 – less than a month after he was released from federal prison.

Kieffer initially attracted attention as a volunteer and fundraiser for the Democratic Party in Orange County in the late '80s. Even his tax fraud conviction didn't seem to slow him down; he played an active role in Loretta Sanchez's 1996 Congressional victory over incumbent Robert Dornan. As recently as 2007 he was a delegate for John Kerry at the Democratic National Convention.

Of course, the inevitable question about such a con man is how did he manage to get away with it?

A number of factors come into play. First, Kieffer took advantage of an attorney admission system that doesn't require federal court clerks to verify that attorneys are licensed by the bar in the state where they claim to practice.

A motion by an attorney admitted in one jurisdiction to practice in another one – known as a pro hac vice (from the Latin, meaning "for this one particular occasion") motion – usually requires a local lawyer to vouch for the out-of-state lawyer.

Kieffer hosted a listserv about federal sentencing issues called BOPWatch, a "watchdog" e-mail discussion group focusing on Federal Bureau of Prisons issues. Many criminal defense lawyers across the country subscribed to this listserv.

Kieffer also posted comments on respected legal Web sites such as SCOTUSBlog, and was even quoted as an expert on post-sentencing issues by such publications as The Washington Post. Kieffer also was a regular on the legal lecture circuit, speaking on post-conviction issues at seminars presented by the Association of Federal Defense Attorneys, the American Bar Association, the National Association of Criminal Defense Lawyers and the U.S. Administrative Office of the Courts.

Attorneys testifying at Kieffer's trial said they assumed he was a colleague because he seemed knowledgeable about federal court matters and because they knew him from these conferences.

No one, it seems, ever checked Kieffer's supposed credentials.

Kieffer's con could have unraveled much sooner than it ultimately did. In July 2004, Daniel J. Kern, a Kieffer client, sent a letter to the U.S. District Court for the Southern District of Illinois' chief judge. The letter stated that Kieffer was not a licensed attorney, and that Kern was now representing himself.

Kern was released from prison in 2005, but there is no evidence that any one at the Southern District reported Kieffer to law enforcement or any bar disciplinary authorities.

During the time he posed as a lawyer, Kieffer didn't exactly distinguish himself: in all of the cases found where a judge rendered a decision on Kieffer's motions to modify a defendant's sentence, the motion was denied.

Ironically, though, the bogus lawyer may actually help reform the legal system. Citing the Kieffer case, the U.S. Administrative Office of the Courts has recommended that the attorney admission process be revised, so that attorneys' credentials are verified before they are granted admission to practice in a federal court.

Earlier this year, the Judicial Conference of the United States was scheduled to consider a plan under which a standardized application form and verification system would replace the current patchwork of federal attorney admission requirements that vary from court to court.

Of course, there are those even now who have suggested that clients of the bogus barrister weren't really all that disadvantaged by his sham representation.

After all, they say, who better to understand the plight of a convicted federal felon than another convicted felon?

John Browning is a partner in the Dallas office of Thompson, Coe, Cousins & Irons LLP. He may be contacted at:

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