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A conflict of interest may prevent Alice Fisher, President George W. Bush’s pick to head the Justice Department’s Criminal Division, from being involved in decisions related to the department’s investigation of tax shelters sold by accounting giant KPMG. The KPMG probe is one of the DOJ’s biggest cases, and according to three sources, prosecutors are poised to bring indictments against former KPMG partners involved in the development and sale of the tax shelters. Although the U.S. attorney for the Southern District of New York is taking the lead in the case, the DOJ’s criminal chief would be expected to weigh in on key decisions. Until her nomination, Fisher, a partner in the D.C. office of Latham & Watkins, represented a firm founded by two former KPMG partners. The firm, Presidio Advisors, helped to develop and execute the questionable tax shelters, according to a Senate report. Fisher’s name is on several legal briefs filed on behalf of Presidio Advisors in a related civil suit in D.C. Superior Court. Under legal ethics rules, that attorney-client relationship will preclude Fisher from all matters involving Presidio. Whether she will be permitted to participate in other aspects of the KPMG investigation is unclear. Fisher, who has not yet been confirmed, declined comment. Criminal Division spokesman Bryan Sierra says there have not been any discussions about the need for a recusal, adding that it would be “inappropriate” to make any determinations before Fisher has been confirmed. Crowell & Moring partner Barry Cohen, a legal ethics expert, says that Fisher might be able to make decisions about broad prosecutorial strategy in the KPMG case without violating ethics rules. He adds: “The Justice Department may conclude that as a policy matter and a matter of public perception it would be better to have her recused.” With Congress on leave this month, the Senate is not expected to vote on Fisher until September. Her nomination is being held up by Sen. Carl Levin (D-Mich.) as part of a dispute with the Justice Department over an FBI memo dealing with interrogations at Guant�namo Bay.
Vanessa Blum can be contacted at [email protected]

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