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Mr. Sticht contends that Mr. Izen's representation of test
case petitioners does not provide a sound basis for concluding
that the Government misconduct did not cause a structural defect
in the trial of the test cases. In particular, Mr. Sticht points
to Mr. Kersting's interference in the Chicoine and Hallett
settlement negotiations and his eventual firing of Chicoine and
Hallett, and Mr. Izen's alleged lack of preparation for the
trial, as evidence that nontest case petitioners were not
afforded due process.
Mr. Kersting, the shelter promoter, had the incentive and
initially the resources to finance the test case litigation. By
so doing, Mr. Kersting positioned himself to influence or
determine the choice of counsel hired to represent the test case
petitioners, creating the potential for conflicts of interest.
Mr. Kersting repeatedly used his control of the purse strings to
interfere in the attorney-client relationships of participants
in his programs, as evidenced by his attempts to initiate
Mr. Seery's withdrawal as test case counsel for the Thompsons
and his efforts to forestall dissemination to Kersting program
participants of Internal Revenue Service settlement offers
solicited by Mr. Seery and by Chicoine and Hallett. The pattern
of interference continued in Mr. Kersting's firing of Chicoine
and Hallett as counsel for test case petitioners and encouraging
nontest case petitioners to recall their settlement retainers
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