"THE FEDERAL CORNER"
Please Don't Take My Lawyer Away From Me!
F. R. (Buck) Files, Jr.
The practice of law and hearings and trials are so common in our lives that we often forget that our clients and their families often have no more idea than a goose as to what the criminal justice system is all about. That would certainly be true of Rashaun A. Puryear. He was alleged to have committed five drug-related offenses and was the defendant in a case on the docket of United States District Judge Kim R. Gibson of the Western District of Pennsylvania. Recently, Puryear learned that Judge Gibson had granted the government's motion to disqualify the lawyer whom he had hired to represent him and that he was to have counsel appointed for him. Not a good day for Mr. Puryear. United States v. Puryear, ___ F.Supp.2d ___, 2010 WL 2572450 (W.D. Pa. 2010).
Judge Gibson did not plow new ground; however, she wrote an excellent and well reasoned opinion about a conflict of interest issue. Puryear is also a good example of a great truth: The case doesn't have to come from the Supreme Court or from a Circuit Court for it to be worth reviewing.
Judge Gibson's opinion reads, in part, as follows:
[BACKGROUND]
This matter comes before the Court on the Government's Motion to Disqualify Counsel (Doc. No. 82). The Government filed the motion upon discovering that one of its witnesses is a former client of defense counsel Jerome J. Kaharick. The Government does not identify the witness by name in its motion but describes the scope of the witness' previous representation by Mr. Kaharick and the nature of the anticipated cross-examination by defense counsel. Mr. Kaharick has filed a response to the Government's motion expressing his inability to comment on the conflict without learning the identity of the former client in question.1 For the reasons set forth below, the Court will grant the Government's motion.
FN1 Pursuant to the Court's pretrial order, both the Government and Defendant filed their witness lists under seal.
Mr. Puryear was indicted on five counts of drug-related offenses on September 15, 2009. (Gov.Mot.¶ 1.) He retained Mr. Kaharick to represent him. (Gov.Mot.¶ 2.) One of the witnesses the Government intends to call has a prior conviction in the Cambria County Court of Common Pleas for unlawful firearms possession and unlawful flight to avoid apprehension. (Gov.Mot.¶ 5.) The witness was represented in that criminal prosecution by Mr. Kaharick. (Gov.Mot.¶ 6.) Thus, one of the Government's witnesses is a former client of Mr. Kaharick. The Government also represents that the conviction in question would constitute appropriate impeachment material under Federal Rule of Evidence 609(a)(1). (Gov.Mot.¶ 7.)
[THE SIXTH AMENDMENT RIGHT TO COUNSEL]
The right to counsel of choice is a right 'derived from the [Sixth Amendment] right to effective assistance of counsel, for "the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice." ' Id. at 748 (quoting Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932)). The Third Circuit points out that 'a primary purpose of the Sixth Amendment is to grant a criminal defendant control over the conduct of his defense-as "it is he who suffers the consequences if the defense fails." ' Moscony, 927 F.2d at 748 (quoting Faretta v. California, 422 U.S. 806, 820, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). The protections of the Sixth Amendment thus include 'a presumptive right to the counsel of one's choice.' Moscony, 927 F.2d at 748. The Third Circuit 'has clearly stated the importance of a defendant's securing the counsel of his choice.' Fuller v. Diesslin, 868 F.2d 604, 610 (3d Cir.1989). The defendant's choice of counsel is 'the most important decision a defendant makes in shaping his defense....Attorneys are not fungible, as are eggs, apples, and oranges. Attorneys may differ as to their trial strategy, their oratory style, or the importance they give to particular legal issues.... [A] defendant's decision to select a particular attorney becomes critical to the type of defense he will make and thus falls within the ambit of the sixth amendment.' Id. at 610 (quoting United States v. Laura, 607 F.2d 52, 56 (3d Cir.1979)).
[OVERCOMING THE PRESUMPTIVE RIGHT TO CHOSEN COUNSEL]
The presumptive right to chosen counsel must be overcome in order to deprive a defendant of his retained counsel. ... A conflict of interest can overcome the presumptive right to chosen counsel because the Sixth Amendment's guarantee of effective assistance of counsel includes the right to conflict-free representation. ... The Court need not wait for the conflict to actually present itself at trial. Indeed, 'that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict.' Wheat, 486 U.S. at 164.
[THE CONFLICT OF INTEREST IN THIS CASE]
Here, the Court finds that the conflict that has arisen in this case, most properly characterized as 'actual' but certainly at least of serious potential, outweighs the Defendant's presumptive right to the counsel of his choice.
A division of loyalty threatens to inject itself into this case during Mr. Kaharick's cross-examination of the Government's witness. The Government hones in on the Rule 609 impeachment it expects during the cross-examination and Mr. Kaharick's ethical obligations (Gov.Mot.¶ 7), but this to the Court appears to be the most innocuous part of the anticipated cross-examination since Mr. Kaharick would at least be confined to matters of public record (i.e. the conviction itself). Certainly the very idea of an attorney impeaching a former client with a conviction that came out of the former representation is extremely unpalatable and militates strongly in favor of disqualification. The Court simply notes that the impeachment itself need not necessarily violate an ethical rule. Far more noxious to trial proceedings than the impeachment by prior conviction (a small, though damaging, slice of the entire line of questioning) is the very cross-examination itself, wherein the former attorney would be pitted against the former client. With or without impeachment by prior conviction, 'an attorney who cross-examines former clients inherently encounters divided loyalties.' Moscony, 927 F.2d at 750. That is the critical conflict of interest that overcomes the Defendant's presumptive right to counsel of choice. (Emphasis added)
[THE POSSIBILITY OF A WAIVER BY THE DEFENDANT]
It is unknown whether the Defendant would be willing to waive conflict-free representation. Indeed, it is not clear how the Defendant could even decide that question since he does not know the name of the Government's witness. In the event of a proffered waiver, though, the Court would have to resolve the clash of the defense counsel's rights and duties that arises 'when a defendant seeks to waive his right to conflict-free representation in circumstances in which the counsel of his choice may have divided loyalties due to ... prior representation of another client who is ... a government witness.' Moscony, 927 F.2d at 749. Waiver is contemplated by the Pennsylvania Rules of Professional Conduct, most pertinently Rule 1.9, duties to former clients, and Rule 1.7, conflicts of interest with current clients.
[WAIVER IS NOT APPROPRIATE IN THIS CASE]
The Supreme Court has made clear that 'where a court justifiably finds an actual conflict of interest, there can be no doubt that it may decline a proffer of waiver....' Wheat, 486 U.S. at 162. The Court need not wait for a proffered waiver to decide one would be ineffective. Because the Court finds the conflict of interest in Mr. Kaharick's continued representation of the Defendant to be so serious, it preemptively declines any waiver should one even be contemplated.
No waiver in this case could alleviate the Court's concerns for the Defendant's effective assistance of counsel, regardless of Mr. Kaharick's skill as an attorney. The fact that the Pennsylvania Rules of Professional Conduct allow for waiver in certain circumstances by no means compels the Court to entertain it. Placing an attorney in the position of impeaching his former client with a conviction on which the attorney once served as defense counsel would do little to engender respect for the court or the legal profession. The entire cross-examination places too great a strain on the attorney-client relationship to be tolerated in the courtroom. Furthermore, there is no doubt as to the possibility of 'future attacks over the adequacy of the waiver or the fairness of proceedings in [this Court] and the subtle problems implicating the defendant's comprehension of the waiver.' ...The Court need not even inquire as to the possibility of a waiver because no waiver could cure the collateral damage that would befall the trial proceedings were disqualification to be denied. The Court's considerations militate in favor of disqualification in this case.
[THE COLLATERAL CONSEQUENCES OF THE COURT'S DECISION]
The Court's disposition of the Government's motion, albeit legally sound, deals an unexpected blow to the Defendant. ... Mr. Kaharick and his client have been blind-sided shortly before trial. ... It is no light matter for this Court to disqualify Mr. Kaharick, for 'the effect of a disqualification is to deny a criminal defendant his or her presumptive right to chosen counsel.' United States v. Voigt, 89 F.3d 1050, 1078 (3d Cir.1996). The Government's presentation of its case remains unaffected. (Emphasis added)
[THE ORDERS OF THE COURT]
IT IS HEREBY ORDERED that the Government's Motion to Disqualify Counsel (Doc. No. 82) is GRANTED.
IT IS FURTHER ORDERED that Attorney Jerome J. Kaharick is disqualified and removed from representation of Defendant Puryear and that another counsel shall be appointed for Defendant Puryear.
THE FIFTH CIRCUIT CASES
Six district judges of the Fifth Circuit have authored opinions on the issue of conflict of interest as raised by the Government's motions to disqualify counsel. In two of these cases, the district court denied relief; in four of these cases, the district court granted relief:
· Relief denied: United States v. Decay, 406 F.Supp.2d 679 (E.D. La 2005); United States v. Morris, 785 F.Supp. 1238 (N.D. Tx 1992).
· Relief granted: United States v. Jefferson, 2009 WL 4547691 (E.D. La 2009) [Slip copy]; United States v. Cheshire, 707 F.Supp.2d 235 (M.D. La 1989); United States v. Edwards, 39 F.Supp.2d 716 (M.D. La 1999); United States v. Philips, 952 F.Supp.2d 480 (S.D. Tx 1996).
When a district court finds that there is a conflict of interest and disqualifies the defendant's attorney, there is no right to an interlocutory appeal; rather, this is just another issue for appellate review. The latest Fifth Circuit case to address this issue was United States v. Sanchez-Guerrero, 546 F.3d 328 (5th Cir. 2008). A panel of the Circuit [Davis, Clement and Elrod, Circuit Judges (opinion by Clement)] held that the defendant's Sixth Amendment right to counsel of his choice was not violated by United States District Judge Hilda Tagle's disqualification of the defendant's original counsel.
MY THOUGHTS
If you practice law in SmallTown Texas, you know all about conflict of interest issues. If you are a lawyer with a state wide or national reputation, you know all about conflict of interest cases. Common sense tells us to avoid these issues because they can embarrass us.
And while it is embarrassing to see your name in an unfavorable opinion, it is even worse to see it in a complaint filed with the State Bar of Texas. If you want to review what the State Bar's Chief Disciplinary Counsel and the Commission on Lawyer Discipline are going to take as their authority on a conflict of interest complaint, look at Rule 106 [Conflict of Interest; General Rule] of the Texas Disciplinary Rules of Professional Conduct.
