Sunday, March 30, 2008
Saturday, March 29, 2008
- Born in 1959, in Wilkes-Barre, son of Hon. Peter Paul Sr. and June Olszewski.
- Graduted from Meyers H.S. in 1977.
- Graduted from Penn State University (B.A.), prelaw with distinction in 1981.
- Graduted from Dickinson School of Law (J.D.) in 1984.
- Elected District Attorney, Luzerne County, 1992-2000.
- Elected Judge, Court of Common Pleas in 1999.
- Robert Protsman, First Degree Murder - sentenced to life in prison with no parole.
- Henry Stubbs III, Death-penalty case - sentenced to 2 consecutive life terms with no parole.
- Larry Tooley, Death-penalty case - sentenced to life in prison with no parole.
- Hugo Selenski, Death-penalty case - found not guilty by a jury ( during the second trial, Olszewski was removed as presiding judge).
- William Rohland, Death-penalty case - sentenced to life in prison with no parole.
Thursday, March 27, 2008
"For those of you that do not know my comments are shut down if you have a comment for me mail it to me at Lackawanna County Prison.
Then lets get on to the rest.
If you do not know the story do not try to tell it.
Some of you allow your imaginations to run way to much!
As for Mr. Fannick he will be representing me, I will be filing a notice of Appeal.
As for my court appointed lawyers they were never fired,( again a running imagination) they were relieved of duty when Mr. Fannick was retained.
Now as for the retaining of Mr. Fannick lets get this one straight so there is no confusion, The donations to legal defense fund paid for Mr. Fannick , it took nine months and alot of
support from people that actually care about me.
At no time did Joe’s parents contribute one penny to Mr. Fannicks retainer, they were not consulted when he was retained. When Mr. Fannick turned down representing Joe because of
issues, that is when my friends and family that represent me contacted Mr. Fannick about representing me. Mr. Fannick agreed to a price, we knew the price at christmas and were a
a few dollars short, it took the month of January to come up with the balance of his money. When that was done Mr. Fannick was sent a cashiers check for his fee. He then put in his
notice of appearance in my case.
There are alot of rumors and garbage being spread around by people that do not know what they are talking about. Alot of you have that dinner conversation in Las Vegas confused.
Just because Sean and Grant say it went that way does not mean that this is the truth.
As for Joe’s out bursts in court, well as we all know that is Joe and no one can stop him from running his mouth, whether it be truth, or fiction.
What I would suggest is do not believe everything that is posted on a blog because most of them do not know what is going on, they are just trying like the media to get someone’s
attention. They do this by making things up and putting what they want to be the truth out there. The truth will be told at trial.
Maybe in the mean time some of you should take a look into El’s crystal ball, he knows more then the rest because he has contact with me. Do you? No, you do not. So if you want to
know something check out his crystal ball, how the hell do you think he knows what everyone wears to the court appearances. DUH! Think one of you would of figured it out by now.
And since some of you are so good at digging shit up , then dig this up, when I was arrested in Virginia Beach, the knife purchased at the pawn shop was in the glove box of the car,
the Virginia Beach Police took it as property in the vehicle, a new knife in the box still wrapped in the paper from the date of purchase. So start doing your homework PC! Figure that
Pertaining to the post that was posted was anyone out there, yes, that was posted as joke. And for a long time it got no ones attention until one person decided to take note to it. At
least someone figured out finally that you can not post comments here. All you can do is listen to me rant on and on and you cant say shit about it. So if you perfer to read made up
stories please read the blogs you are reading for sure. But if you really want to know the truth then stop reading that trash. Sean and Grant know what they did was wrong, they
wanted someone to do harm to Brian, Joe and I were not the only one’s approached. They know this and so does the other person that will testify at trial. That story about that dinner
will hold no wieght they will be found not credible when they get caught in there own lies. They will eventually be tried in Luzerne County, the prosecution has not given them the gift
of immunity. They will never be given this because Luzerne County knows they had more to do with this then they are saying. The truth on this matter will come out, and they will
be prosecuted, along with Robert Wagner. It is just a matter of time. Just like my tiral is a matter of time, there arrest is a matter of time. So look deep into El’s crystal ball and when
they are arrested after the trial I will be the first to say ” I TOLD YOU SO”.
If the state had all the evidence they claim to have then there would not be a trial, they would of offered a plea deal and no such deal has ever been offered. Not once has the
District Attorney approached any of my counsel and put a deal on the table. There never has been one and there never will be one."
Tuesday, March 25, 2008
On Saturday, March 22, 2008... fellow blogger Dewayne posted a well-written, open letter responding to Harlow Cuadra's latest, multiple blog post pleas:
"Hello is anyone out there?
I say is there anyone left out there?
Do you hear me? Do you believe in me? What the hell is going on? All the people have left!"
Meanwhile... a comment was posted by another well-known blogger named "Elm", and it included the statement that his "crystal ball" says:
"Fannick will go on to defend Harlow and get him off on a temporary insanity plea."
Now I don't know whether Elm made this statement in jest or in truth... but what I do know is that the evidence presented thus far, would surely squash any theory of this being a case of 'temporary insanity'... and here's why:
1. Harlow makes mention of Bryan going to Canada during the 'lamb dinner'.
2. Harlow does a background check on Kocis on 01/20/07.
3. Harlow uses the alias name "Danny Moilin" when talking to Kocis prior to the meeting.
4. Harlow & Joe are seen on video purchasing a knife and gun at Superior Pawn & Gun Shop the same day they rented the SUV they used to travel to PA.
5. Harlow makes incriminating statements after the murder to Sean and Grant at Black's Beach.
The list of premeditation's goes on... and I seriously doubt Harlow Cuadra just 'went crazy' for a brief moment that faithful night... especially considering the amount of 'documented' planning that took place prior to the murder.
Monday, March 24, 2008
... and to think... the real fun hasn't even begun.
Sunday, March 23, 2008
"Kerekes' (and possibly Cuadra's) money will come from the $320,000 budgeted to the county court system (not the PD's budget) because the attorneys were appointed by the court."
So it's unlikely this will have any effect on Harlow Cuadra and Joseph Kerekes' trial. My apologies for the error.
This article in today's Times Leader should make Joseph Kerekes' attorneys happy - and Harlow Cuadra's too (assuming Harlow doesn't hire another paid attorney, or get Fannick back through appeal)...
Luzerne County’s public defenders won’t have to sue to get the money they need to handle death-penalty cases.
Chief Public Defender Basil Russin said he met recently with county commissioners to discuss the funds he said his office needs but was not receiving from the county.
And the commissioners assured him his office will be funded, he said.
“That should not be an issue,” he said.
It’s not a set amount, he said.
“As we need money, they’ll fund us,” he said.
The funding issue surfaced at a January hearing regarding outstanding bills in a past case.
That’s where First Assistant Public Defender Al Flora Jr. revealed the office is allotted $32,000 per year in county funds to hire experts for capital cases.
Meanwhile, the District Attorney’s Office is allotted $220,000 and the court system is allotted $320,000 for the same purpose.
It was unfair, Russin had said. And if it wasn’t corrected, it could lead to additional costs if defendants’ convictions are reversed on appeal and given a second trial, Flora has said.
A judge suggested Russin might have to sue the commissioners to ensure his office is properly funded.
That’s now been averted, he said.
His office already has one capital case to handle this year and could end up with several more if prosecutors seek the death penalty in other cases.
The $32,000 likely would not have been enough to handle one case. But once Russin gets the money promised from commissioners, his office will be able to handle that case, and any others.
Last year’s homicide trial for double-killer William Rohland sparked the issue. Prosecutors unsuccessfully sought the death penalty in the case.
Rohland was represented by public defenders. They relied on county funds to obtain experts to defend Rohland. Two of those experts testified during the penalty phase.
But Russin’s office had previously used all the money it is allotted to pay experts. That forced them to ask Court of Common Pleas Judge Peter Paul Olszewski Jr. to order the county controller to pay them.
But Olszewski questioned the bills and called a hearing on them. In court, Flora and Russin told Olszewski about the lack of funding from the county. Olszewski said it might be appropriate for the public defenders to sue the commissioners.
Flora said if Olszewski kept questioning experts’ bills, the public defenders would lose their ability to retain the experts. And without such experts, a defendant would not be adequately represented, as required by law. Then, if a defendant is convicted, an appellate court could reverse the conviction based on the weak representation. That would force the county to have a retrial of the costly cases, the attorneys said.
Saturday, March 22, 2008
Judge Peter Paul Olsziewski decided that Attorney Demetrius Fannick can no longer represent Harlow Cuadra in the murder trial of Bryan Kocis... here's why:
AND NOW, this 19th day of March, 2008, at 1:55 o'clock PM, upon review and consideration of the Commonwealth's Motion to Disqualify Attorney Demetrius W. Fannick from representing Harlow Raymond Cuadra, as well as the answer, briefs and supplemental briefs filed in support of and in opposition to said motion, and following hearing and argument held on March 5, 2008 and March 14, 2008, and for the reasons set forth in the attached Memorandum, it is hereby ORDERED AND DECREED as follows:
1. The Commonwealth's Motion to Disqualify Attorney Demetrius W. Fannick from representation of Defendant Harlow Raymond Cuadra is hereby GRANTED, and Attorney Fannick is hereby disqualified from such representation.
2. Attorney Fannick shall, within seven (7) days of the date of the within Order, transfer all Defendant Cuadra's discovery materials to Defendant Cuadra's Court-Appointed Counsel.
3. The Motion of Attorneys Stephen Menn, Paul Galante, and Michael Senape to withdraw from representation of Defendant Cuadra is DENIED AND DISMISSED.
COMPLIANCE HEREWITH IS DIRECTED BY THE COURT.
BY: HONORABLE PETER PAUL OLSZEWKSI, JR.
Before the Court is the Commonwealth's Motion to Disqualify Atty. Demetrius W. Fannick from representing Defendant Harlow Raymond Cuadra from the within matter.
Atty. Fannick entered his appearance on behalf of Defendant Cuadra on January 28, 2008. Defendant Cuadra had been represented by Court Appointed Conflict Counsel, namely Stephen Menn, Esq., Paul Galante, Esq., and Michael Senape, Esq.
The Commonwealth alleges, and Atty. Fannick on behalf of Defendant Cuadra admits, he met with Defendant Kerekes on eight (8) separate occasions within the Luzerne County Correctional Facility. The Commonwealth contends that this extensive contact resulted in the formation of an attorney-client relationship between the two, and that privileged information passed from Kerekes to Fannick. These allegations are buttressed by testimony from Luzerne County Deputy Sheriff Eugene Guarneri and Clerk of Courts employee Lindsay McFarland who testified Defendant Kerekes made a certain outburst toward Atty. Fannick prior to a February 20, 2008 hearing. More specifically, the witnesses testified that when Defendant Kerekes was brought into the courtroom prior to the aforesaid hearing, Defendant Kerekes saw Atty. Fannick and shouted "If you try to use anything we spoke about, I'll have you removed".
It is against this backdrop that the Commonwealth contends that a lawyer-client relationship exists between Fannick and Kerekes; that Atty. Fannick has received and must protect confidential and privileged information he received from Defendant Kerekes: that a potential and/or an actual conflict of interest is present should Atty. Fannick continue his representation of Defendant Cuadra; that Atty. Fannick's obligation not to reveal or use any of the confidential information received from Kerekes would compromise Atty. Fannick's ability to vigorously and diligently represent Cuadra and would render his representation of Defendant Cuadra as less than effective. The Commonwealth further alleges that consent by Kerekes to Atty. Fannick's representation of Cuadra and consent of representation and waiver of a conflict by Defendant Kerekes is either unavailable as an option, or virtually impossible to adequately effectuate. Finally, the Commonwealth contends Atty. Fannick's continued representation of Defendant Cuadra constitutes continuing violations of Rules 1.18, 1.6, 1.7, and 1.9 of the Rules of Professional Responsibility.
In response to the Commonwealth’s allegations, Defendant Kerekes testified under oath that his conversations with Atty. Fannick were limited to issues concerning the requested retainer fee. He denied providing Atty. Fannick with any confidential information and further denied engaging in any conversation with Atty. Fannick about his defense or any substantive aspect of the case. He also denied being under any impression that Atty. Fannick represented him in this matter.
On cross-examination Kerekes admitted to making the outburst as outlined above, but attempted to explain it as “an emotional statement”. He denied that the outburst was in any way related to substantive discussions about the case.
Additionally, Defendant Kerekes executed a written Consent allowing Atty. Fannick to represent Defendant Cuadra and answered questions from Atty. Pike and from the lead prosecutor pertaining to said Consent.
Defendant Cuadra, through Atty. Fannick, initially suggested the Commonwealth’s Motion is motivated by bad faith and is being done exclusively for ‘tactical reasons”. Cuadra denies the existence of an attorney-client relationship between Fannick and Kerekes and further argues the prospective attorney-client relationship between Fannick and Kerekes does not warrant disqualification of his representation of Defendant Cuadra.
In his Brief in opposition, Atty. Fannick repeatedly “represents to the Court as an Officer of the Court that discussions of the case with Mr. Kerekes were limited to issues of whether he could obtain the fee for legal representation and there were no discussions of the substance of the case against Mr. Kerekes or any potential defenses”.
Additionally, in paragraph 21 of Defendant Cuadra’s Answer to the Commonwealth’s Motion, Cuadra, through Fannick, admits that Fannick met with Kerekes at the Luzerne County Correctional Facility and further states “By way of further answer, any meetings were limited to a discussion of legal fees necessary for representation in this matter”.
We note that there is no Verification signed by either Atty. Fannick and/or Defendant Cuadra as is required by Pa. R.Crim.P. 575(B)(3)(d). More significantly, although given an opportunity to testify under oath at the March 5, 2008 Hearing, Atty. Fannick declined to do so. Of course, assertions in briefs are just that — mere representations regarding what a party expects or intends the evidence will show - they are not evidence nor substitutes for proof.
Like Defendant Kerekes, Defendant Cuadra executed a written “Consent-Waiver” as well as a ‘written colloquy” affirmatively indicting his desire for Atty. Fannick to represent him despite all the circumstances of this case.
He also provided sworn answers to questions posed to him by both his Counsel and lead prosecutor.
Initially we note that the issue of Atty. Fannick’s potential disqualification is both sensitive and most serious. These Defendants are charged with Capital Murder, If successful in obtaining First Degree Murder convictions the Commonwealth will request the jury to impose a sentence of death. With Defendant Cuadra’s life literally on the line, we know of no other circumstance where a Defendant’s selection of counsel can be more sacred.
Additionally, this Court is well aware that an erroneous decision in either disqualifying Atty. Fannick or in failing to disqualify Atty. Fannick is clearly reversible error.
Significant consequences are the inevitable result of any judgment in this matter. In United States v. Bradford, 121 F. Sup.2d 454 (W.D. Pa.2000), the District Court clearly acknowledges that the Sixth Amendmentto the United States Constitution guarantees a criminal defendant the right to have assistance of counsel for his defense. Because the purpose of the Sixth Amendment is to ensure that a defendant receives a fair trial, the proper consideration for a court weighing the issue of disqualification of counsel relates to the adversarial process, not on the defendant’s choice of counsel. The Bradford Court cites Wheat v.United States, 486 U.S. 153, 158, 108 S.Ct. 1692, 100 L.Ed. 2d. 140(1988) for this proposition:
Thus, while the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.
Wheat, 468 U.s. at 159, 108 S.Ct. 1692. The presumption in favor of defendant’s choice of counsel “may be overcome not only by ademonstration of actual conflict but by a showing of a sedous potential for conflict. The evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court.” United States v. Stewart, 185 F.3d. 112, 121-122 (3dCir. 1999). (alteration in original), quoting Wheat, 486 U.S. at 164,108 S.Ct.1692 (1988).
The trial court confronted with the duty of evaluating whether disqualification is warranted also “has an institutional interest in protecting the truth-seeking function of the proceedings over which it is presiding by considering whether the defendant has effective assistance of counsel, regardless of any proffered waiver.” Stewart, 185F.3d. at 122, quoting United States v. Moscony, 927 F.2d 742, 749 (3dCir. 1991). “Moreover, to protect the critically important candor that must exist between client and attorney, and to engender respect for the court in general, the trial court may enforce the ethical rules governing the legal profession with respect to both client-attorney communications and to conflict-free representation, again, regardless of any purported waiver.” “Finally, the court has an independent interest to protect a fairly rendered verdict from trial tactics that may be designed to generate issues on appeal.” Id. at 748. Bradford, 121F.Supp. at 455.
Thus, the Sixth Amendment’s guarantee to counsel of one’s choosing is not absolute. It is qualified by the constitutional mandate that a defendant is represented by an effective advocate as well as the court’s solemn obligation to protect the truth-seeking function of the proceedings. It is obviously this Court’s duty to enforce the ethical rules governing the legal profession. It is our inviolate duty to ensure a fairly rendered verdict.
For the purpose of this Memorandum, we believe it unnecessary to outline the relevant Rules of Professional Responsibility. They were explained in credible detail by the Commonwealth’s expert witness, Robert H.Davis, Jr., Esq.
Fannick and Defendant Kerekes are most critical. If no confidential information passed between them, and if indeed the eight (8) conversations were strictly limited to the requested fee, disqualification would not be required, and waivers and consents by the two (2) Defendants could be crafted to ensure quality representation. On the other hand, if confidential information did indeed pass from Kerekes to Fannick, if there were discussions about allegations, defenses, possible cooperation, possible plea terms, character evidence and/or mitigating circumstances in a penalty proceeding, the ability to successfully and appropriately waive conflicts and to ensure unfettered representation becomes more dubious.
We have no desire or inclination to deprive this Defendant, or any defendant, of his or her choice of counsel. Such a proposition is self evident. Neither do we desire to deprive an able, skilled and experienced advocate — Atty. Fannick — of appropriate compensation. We are acutely aware of the weighty consequences of this decision which was made after much reflection, deliberation and candidly angst. But we will not shirk our obligation to make the decision and have done so in order to promote and protect the truth seeking function of the judicial system.
Defendant Kerekes’ explanation that the aforementioned outburst was “an emotional statement” not meant to convey an impression that substantive conversations took place, fails miserably. White emotion may well have precipitated his statement, it is simply inconceivable that emotion resulted in the substance of the words attributed to him. Said differently, emotion may well have been the motivation for the statement, but being overcome by emotion certainly did not result in an untruthful message. Clearly, Kerekes’ admissions in this regard belie his testimony that no substantive discussions took place. We find his explanation regarding the substance of the outburst unpersuasive and his protestations to the contrary during direct examination unconvincing.
Had Atty. Fannick testified under oath that no substantive discussions occurred, today’s ruling may well be different. That Atty. Fannick elected not to do so made this Court’s decision clear.
Under all of these circumstances we find that confidential and privileged information passed from Kerekes to Fannick. Fannick must protect that information and not repeat it or use it in any way, and thus his ability to vigorously cross-examine Defendant Kerekes is effectively hampered. We find that both potential and actual conflicts of interest exist and that this situation cannot be corrected by waivers and/or consents.
We find that the Commonwealth has met its high burden that disqualification of Atty. Fannick is required.
Thursday, March 20, 2008
Wednesday, March 19, 2008
“Had Atty. Fannick testified under oath that no substantive discussions occurred, today’s ruling may well be different,” Olszewski wrote in an 8 page memorandum accompanying his order. “That Atty. Fannick elected not to do so made this Court’s decision clear.”
Fannick said he discussed the matter with Kerekes’ attorneys as well as Menn, Senape and Galante.
It was agreed, Fannick said, that Kerekes’ testimony would provide sufficient evidence that no pertinent information was discussed. Both Kerekes and Cuadra waived any conflicts of interest with Fannick.
“I guess in hindsight we underestimated the need of my testimony,” Fannick said by phone Tuesday. “I really did not believe that I needed to testify.”
Fannick said he is unsure of an appeal on the matter can be made before the case goes to trial, but he will review Olszewski’s decision with Cuadra.
Kerekes’s outburst before a preliminary hearing also affected Olszewski’s decision. The first time Kerekes saw Fannick as Cuadra’s attorney he shouted, “If you try to use anything we spoke about I’ll have you removed,” according to testimony by witnesses.
In making his decision, Olszewski pointed out that appeals would likely follow regardless of the outcome, but he wouldn’t “shirk” from the obligation to make a decision that would “promote and protect the truth seeking function to the judicial system.”
Update: Times Leader (3/20/08 @ 4:48 am) - reports Attorney Demetrius Fannick’s decision not to testify about his meetings with homicide suspect Joseph Kerekes led to the attorney being ousted from representing Kerekes’ co-defendant.
Fannick’s decision, Luzerne County Court of Common Pleas Judge Peter Paul Olszewski Jr. said, made it appear Kerekes could have exchanged confidential information with Fannick before the attorney began to defend co-defendant Harlow Cuadra.
“Had (Fannick) testified under oath that no substantive discussions occurred, today’s ruling may well be different,” Olszewski wrote in his order Wednesday. “That (Fannick) elected not to do so made this Court’s decision clear.”
Olszewski, in his ruling, focused on a Kerekes’ outburst and Fannick’s decision not to testify. At a prior hearing, Kerekes shouted at Fannick, after being hired to defend Cuadra, that he didn’t want Fannick to use anything they spoke about in their meetings.
Kerekes later testified the outburst was merely emotional. Olszewski didn’t buy it.
“Emotion may well have been the motivation for the statement, but being overcome by emotion certainly did not result in an untruthful message,” Olszewski wrote.
That, coupled with no testimony from Fannick that the meetings with Kerekes lacked substance, led to Olszewski removing Fannick.
“We find that confidential and privileged information passed from Kerekes to Fannick,” Olszewski said.
And that means Fannick has to protect that information and can not use it any way. That, the judge said, will prevent him from effectively cross-examining Kerekes on Cuadra’s behalf.
Fannick on Thursday said he knew the ruling could go either way. But he’s not going to second-guess “a very brilliant” Olszewski, he said. Fannick is unsure whether the ruling can be appealed prior to trial. If it can, that decision will be up to Cuadra. “He may be anxious to proceed.”
Judge Peter Paul Olszewski has issued his ruling today... Attorney Demetrius Fannick can no longer represent Harlow Cuadra in the upcoming murder trial of Bryan Kocis.
The Times Leader is reporting that a Luzerne County judge has disqualified attorney Demetrius Fannick from defending homicide suspect Harlow Cuadra.
Court of Common Pleas Judge Peter Paul Olszewski Jr. made the move after prosecutors asked for Fannick to be removed because he had previously met with co-defendant Joseph Kerekes. That, the prosecutors said, created a conflict of interest.
Cuadra will now be represented by attorneys Stephen Menn, Paul Galante, and Michael Senape.
Meanwhile, the Citizen's Voice is reporting that Attorney Demetrius Fannick cannot represent murder suspect Harlow Raymond Cuadra in his capital case, a Luzerne County judge ruled Wednesday.
In a 2-page order and 8-page memorandum, Judge Peter Paul Olsziewski said Fannick can't stay on the case because of objections from Luzerne County prosecutors who say Fannick has a conflict of interest after meeting with Cuadra's codefendant Joseph Kerekes.
Tuesday, March 18, 2008
Basically it's a revised witness list... no surprise really since the original list of 385 potential witnesses was a bit extreme.
I'll try to provide more information as soon as I can... meanwhile I can report that there doesn't appear to be any new additions to the list... it actually appears to have gotten smaller.
Update 3/19/08 @ 1:34 PM: On Tuesday the DA's office clarified some of those witnesses on the list, providing names and contacts for the witnesses that were listed only as "custodian of records". The list still remains at 385, so I stand corrected at thinking the list may have been reduced.
Sunday, March 16, 2008
Harlow Cuadra's Warrant of Arrest:
Judge's Order to Transfer Harlow Cuadra for Formal Arraignment:
Notice of Aggravating Circumstances (Death Penalty):
I'll add more later... and this will likely become another 'permalink' at some point.
Friday, March 14, 2008
"The Kerekes family can actually scrape together some assets (by selling a home) and so they begin to interview Demetrius Fannick a few months ago. Fannick begins visiting Joe in prison, they discuss the case, cobbling up various cock-and-bull stories they can pitch to a jury.
Before that, in fact, Joe's jailhouse interview attempted to place all the blame for the murder on Harlow, while an innocent Joe was back at the Fox Ridge Inn surfing the net.
The Cuadra family is not stupid, they see which way this is all headed: Joe with a fancy lawyer shifts all the blame to Harlow, which they w/o the means to hire a more aggressive and imaginative attorney cannot match.
I believe at this point the Cuadras blackmailed the Kerekes: give us a fancy-pants lawyer too, or Harlow cuts a deal...IDing Joe as the murderer."
... But... we also didn't know then, what we know now... so let's take a look back at the events that took place during that time:
The entire timeline of events is either a strange coincidence... or just perhaps... Jim's theory holds some weight and BB was correct.
Things that make you go hmm...
Both suspects on Friday officially waived any conflict of interest that might exist with Fannick defending Cuadra.
The conflict issue arose when Luzerne County prosecutors asked a judge to remove Fannick from the case because he had met with Kerekes before being hired on behalf of Cuadra.
That, the prosecutors said, created a conflict with Fannick defending Cuadra.
Fannick and Kerekes have said there is no conflict because the two only discussed legal fees when they met. They did not discuss any specifics of the case, they said.
On Friday, Cuadra and Kerekes both appeared before Court of Common Pleas Judge Peter Paul Olszewski Jr. and waived any potential or actual conflict of interest with Fannick defending Cuadra.
“There is no conflict of interest,” Cuadra said at one point.
Olszewski said he will issue a ruling next week.
Thursday, March 13, 2008
Hopefully the Judge will issue his ruling tomorrow, so that this case can finally begin to move forward again.
Monday, March 10, 2008
Sounds like we won't have much to worry about in regards to a possible tainted jury pool... even though Defense Attorney's were previously so concerned about local-media coverage, that they filed a motion for the trial be held elsewhere (change of venue). No word yet as to what will happen with that.
Saturday, March 8, 2008
1. Commonwealth v. Brooks
2. Capital Care Corp. v. Hunt
3. Minnich v. Yost
4. Cost v. Cost
5. Sheinkopfv v. Stone
6. Kurtenbach v. TcKippe, Et al.
7. Dixon v. O'Connor, Et al.
8. Rule of Professional Conduct 1.9
9. Rule of Professional Conduct 1.7
10. Wheat v. United States
11. U.S. v. Bradford
12. U.S. v. Joyce
13. Rule of Professional Conduct 1.18
14. Explanatory Comment to Rule 1.18
15. Rule of Professional Conduct 1.0
16. Lawyer's Duties to a Prospective Client
19. Reporter's Note
20. Conclusion (previously posted on 02/26/08)
In Commonwealth v. Brooks 576 Pa. 332, 839 A 245 (Pa..2003), the court wrote, “It should go without saying that no lawyer, no matter how talented and efficient, can possibly forge a meaningful relationship with his client and obtain adequate information to defend that client against first-degree murder charges in a single thirty-minute telephone conversation. Although a lawyer can always learn certain information from his client over the telephone, we simply would be discounting the gravity of a death penalty case were we to say that a lawyer representing a defendant in such a case has done his job effectively when he has spent only limited time on the telephone with his client. Indeed, the very nature of a capital case, typically quite involved and always subjecting the defendant to the possibility of death clearly necessitates at least one in-person meeting between a lawyer and his client before trial begins. Without such a meeting, there is little to no hope that the client will develop a fundamental base of communication with his attorney, such that the client will freely share important information and work comfortably with the lawyer in developing a defense plan. Moreover, only a face-to-face meeting allows an attorney to assess the clients demeanor, credibility, and the overall impression he might have on a jury. This is of particular importance in cases in which the client may take the stand in his defense or at the penalty phase in an attempt to establish the existence of particular mitigating circumstances. As Appellant was deprived of the benefits of a face-to-face meeting here, it is clear that Appellant’s ineffectiveness claim has arguable merit.” See Com. v. Douglas 558 Pa. 412, 737 A.2d 1188, 1199 (Pa. 1999).
Attorney Fannick met with Joseph Kerekes, who faces the death penalty, eight (8) times, including on January 11, 2008 when he met with Kerekes immediately prior to meeting with Cuadra.
A. An attorney-client relationship existed between Attorney Fannick and Joseph Kerekes.
In Capital Care Corp. v Hunt 847 A.2d 75, (Pa.Super 20040, the court wrote:The law which governs the practice of law in this Commonwealth does not require a traditional fee-for-service contract to be executed between an attorney and a prospective client to create an attorney-client relationship. See, e.g., Minnich v. Yost 817 A.2d 538, 542 (Pa. Super.2003). Absent an express contract, an implied attorney-client relationship will be found if the following are shown: (1) the purported client sought advice or assistance from the attorney; (2) the advice sought was within the attorney’s professional competence; (3) the attorney expressly or impliedly agreed to render such assistance; and(4) it was reasonable for the putative client to believe the attorney was representing him. Id., 817 A.2d at 542. Accordingly, although Appellee withdrew “formally” from Appellant’s representation on September 23, 1986, the testimony presented at trial was sufficient to demonstrate that, at the request of Fishbone, Appellant’s agent, Appellee continued to advise and assist Appellant regarding matters of corporate law and securities transactions, Appellee’s professed areas of expertise.
In Minnich v. Yost 817 A.2d 538 (Pa. Super. Ct., 2003), in 1997, Minnich's father consulted with Attorney Yost for advice on estate planning. At that time or at some time later, he delivered both his own will and the will of his deceased wife to Yost. At the consultation, Yost knew or was advised of Vera Minnich’s death, and he knew or should have known that her will had not yet been probated. Nevertheless, Yost did not advise Minnich’s father to have Vera Minnich’s will probated, took no initiative to have the will probated, and never advised Minnich’s father to notify other family members of the existence of the will. A beneficiary of Vera’s will sued Attorney Yost. The Minnich court wrote:
“Minnich’s second and third issues combine to state that he has standing to bring a negligence claim for breach of duty owed him as an intended third party beneficiary of Yost’s implied contract to represent Vera Minnich’s estate. To support this claim, Minnich relies on pleaded facts that: Minnich’s father consulted with Yost for advise on estate planting, told Yost that Vera Minnich had died, and gave Yost both his and her valid wills; Yost took the wills and noticed that Vera’s had not been probated, but kept it in his possession without effecting probate or assuring that Minnich-as-named beneficiary be informed of the will’s existence; as an experienced attorney and officer of the court, Yost had a duty to promptly effect probate and to promptly advise Minnich of his beneficial interest in the will; Yost’s failure to produce the will for probate until Minnich requested the register of wills to issue a citation directing production was intentional, and it cost Minnich considerably both in the way of fees connected with the discovery of the will and in non-economic damages.”
“First, we agree that the complaint alleged sufficient facts to aver that Minnich’s father and Yost entered into an implicit contract for legal services pertaining to Vera Minnich’s estate. ‘Absent an express contract, an implied attorney-client relationship will be found if 1) the purported client sought advice or assistance from the attorney; 2) the advice sought was within the attorney’s professional competence; 3) the attorney expressly or impliedly agreed to render such assistance;and 4) it is reasonable for the putative client to believe the attorney was representing him.’ Cost v. Cost 450 Pa.Super. 685, 677 A.2d t250,1254 (1996). Here, the pleadings satisfy the standard’s first two factors with the averment that Minnich’s father conferred with Yost for his competent legal advice. Moreover, by averring that Yost knowingly accepted and kept possession of the original will of Vera Miimich, whom Yost knew to have recently died, the pleadings satisfied the third and fourth factors that Yost impliedly agreed to assist the estate and that Minnich’s father reasonably believed such assistance would commence.”
Part of a lawyer’s job at times is to address the press and media. It is noted that Attorney Fannick made statements to the press, including, “I believe it (Mr. Kerekes case) is very defendable.” Rule 3.6 of the Rules of Professional Responsibility states:
“Notwithstanding paragraph (a), a lawyer may make a statement a reasonable lawyer would believe is required to protect a client from substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.”
The Cost court wrote:
“Preliminary objections were filed and granted by the court on grounds that no legal malpractice claims existed because: (1) there was no express contract for legal representation (“privity”) between the plaintiff and Pawk/Kotarba; (3) the plaintiff never sought advice or assistance from PawklKotarba; and (3) Pawk/Kotarba never expressly or impliedly agreed to serve as plaintiffs separate counsel. Likewise, the court held that the plaintiff could not “reasonably expect” that the defendants would describe the terms and legal significance of the various documents to be executed.
Further, the court wrote:
“In summary, plaintiff knew that Pawk/Kotarba had been retained by her husband Frank Cost and his brother Charles Cost to represent their interests and the interests of their business entities in the dispute with Anthony Cost and she knew that there was a settlement proposed by Frank Cost and Charles Cost that required the signatures of Charles’wife and herself Plaintiff also knew that Frank Cost and Charles Cost desired Frances Cost and plaintiff to sign the necessary documents. In this situation, there is no legal principle under which the lawyers retained would owe plaintiff the full panoply of obligations that a lawyer owes a client.
This appeal followed and raises, in essence, the yet unresolved question of, absent any written or oral contract of employment between counsel and complainant, what satisfies the “reasonable belief’ criterion to withstand preliminary objections and fill the traditional contractual void sufficient to hold counsel liable for legal malpractice? Resolution of the query is to take place on a case-by-case basis after a review of the pleadings against the backdrop of the applicable law.”
Attorney malpractice claims, whether civil or criminal, bear the traditional elements of a general claim of negligence--duty, breach,causation and damages. Bailey v. Tucker 621 A 108 (1993). Absent an express contract, an implied attorney-client relationship will be found if 1) the purported client sought advice or assistance from the attorney; 2) the advice sought was within the attorney’s professional competence; 3) the attorney expressly or impliedly agreed to render such assistance; and 4) it is reasonable for the putative client to believe the attorney was representing him. Sheinkopf v. Stone 927 F.2d 1259 (1stCir.1991).
Here, with regard to Haug’s Points Nos. 1, 2 & 3, the pleadings are clear that the plaintiff neither sought nor received “legal advice” or “assistance” from the defendant's Cost.
In this case, according to Attorney Fannick, Mr. Kerekes sought advice and assistance from Attorney Fannick. Criminal defense is within Attorney Fannick’s competence.
Attorney Fannick began a media defense of Mr. Kerekes. Given the length and number of visits with Mr. Kerekes, it was reasonable for Mr. Kerekes to believe that Attorney Fannick was representing him.
In GMH Associates, Inc. v. Prudential Realty Group 752 A.2d 889 (PAS,2000), the court wrote, “The doctrine of promissory estoppel allows a party, under certain circumstances, to enforce a promise even though the promise is not supported by consideration. Shoemaker v. Commonwealth Bank 700 A.2d 1003, 1007 (Pa.Super. 1997)(citing Thatcher’s Drug Store,supra); Restatement (Second) of Contracts §90. Robert Mallery LumberCorp. v. B. & F. Assoc.. Inc. 440 A.2d 579, 583 (Pa.Super. 1 982)(noting that promissory estoppel has been characterized as a species of or a substitute for consideration). Thus, ‘promissory estoppel makes promises enforceable.” Crouse v. Cyclops Industries 704 A.2d 1090, 1093(Pa.Super. 1997). A party seeking to establish a cause of action based on promissory estoppel must establish that: “(1) the promisor made a promise that he should have reasonably expected would induce action or forbearance on the part of the promisee; (2) the promisee actually took action or refrained from taking action in reliance on the promise; and (3) injustice can be avoided only by enforcing the promise. Shoemaker,supra. Id. However, the doctrine of promissory estoppel does not apply if the complaining party acted on its own will and not as the result of the defendant’s representations.” Ravin Inc. v. First City Co. 692 A.2d577, 581 (Pa.Super. 1997).
10In Artkraft Strauss Sign Corp. v. Dimelj 631 A.2d 1058, 429 Pa.Super. 65(Pa. Super. 1993), the court noted, “The essential elements of estoppelare “an inducement by the party sought to be estopped to the party who asserts the estoppel to believe certain facts exist--and the party asserting the estoppel acts in reliance on that belief.’ Sabino v. Junio441 Pa. 222, 225, 272 A.2d 508, 510 (1971).
Where the actions by the party asserting estoppel were such to promote the condition which now is asserted as an estoppel and the party to be bound by the estoppel did nothing to create the condition, estoppel cannot be alleged. Where there is no concealment, misrepresentation, or other inequitable conduct by the other party, a party may not properly claim that an estoppel arises in his favor from his own omission or mistake. Northwestern National Bank v. Commonwealth 345 Pa. 192, 27 A.2d20 (1942).
The Commonwealth avers that Mr. Kerekes, led to believe that Attorney Fannick was going to represent him as per Attorney Fannick’s press statement, now faces the prospect of the lawyer he confided in, representing his co-conspirator-accomplice Harlow Cuadra, who stated in the nudist beach consensual wiretap, “right then, ya know, my dude comes around. . . It was crazy.” Black’s (nudist) Beach at pg. 48-49) Cuadra continued, “No. No. I only have a sip or two while I keep pouring it and pouring it for him. So by the time the doorbell rang, he got up and he was stumbling and that was it.” Id. at pg. 43-44.
1) a person manifests to a lawyer the persons intent that the lawyer provide legal services to the person; and either
(a) the lawyer manifests to the person consent to do so; or
(b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.
Because there is a genuine issue of material fact as to whether an attorney-client relationship was created pursuant to 26(1)(b), we do not address 26(1)(a).
The first question is whether Joyce manifested an intent that Friedman provide legal services. Friedman has never seriously disputed the existence of this factor, and with good reason. Joyce (on behalf of Dixon) clearly manifested such an intent when, in 1989, he sought Friedman’s advice about the possibility of suing O’Connor for malpractice.
Friedman rests primarily on the assertion that he “manifested lack of consent to” advise Dixon, but that argument does not carry the day.According to Friedman’s deposition, the strongest statement he made in1989 was: “I don’t like to handle claims against lawyers, and I’m not sure that this one has any real foundation, and I’m certainly not going to handle a claim that I don’t think has a foundation.” This statement could be interpreted in at least two ways: Either Friedman was simply informing Joyce that he would not pursue a malpractice action against O’Connor unless he concluded that it had merit, or he was refusing to advise Dixon at all. The procedural posture of this case mandates that we resolve ambiguities in favor of Dixon, and, as a result, we do not read this statement as an affirmative refusal by Friedman. Therefore, we cannot say that there is no genuine issue of material fact with respect to this factor.
The final issue in determining whether an attorney-client relationship arose between Dixon and Friedman with respect to a malpractice action against O’Connor is whether Dixon reasonably relied on Friedman to provide such services and whether Friedman12a -knew or should have known that it was doing so. Though the question is close, three things convince us that there is a genuine dispute of material fact as to this issue.”
The attorney-client relationship is a special type of contract. Because of the fiduciary relationship between the lawyer and her client, the contract is not an ordinary one. The lawyer, who becomes the agent of the client, has special responsibilities that are not imposed on the client. Restatement of the Law Governing Lawyers Third, § § 14-19(Official Draft 2000).
The Restatement notes that there are three basic ways that the attorney-client relationship may commence. First, the prospective client manifests to the lawyer the intent to retain the lawyer, who agrees to the proposal. Restatement of the Law Governing Lawyers, Third, §14(1)(a) (Official Draft 2000).
Second, the prospective client manifests to the lawyer the intent to retain the lawyer and the lawyer fails to manifest a lack of intent to be so retained under circumstances where it would be reasonable to do so.
For example, assume that the prospective client fears that his driver’s license may be revoked. This person calls the lawyer’s office and asks the lawyer to represent him in the revocation proceeding in 10 days. The prospective client knows that the lawyer often handles these types of cases. The lawyer’s secretary tells him to mail the relevant papers concerning his case, and he does so. The secretary does not mention that the lawyer will not decide to take the case until later. The lawyer does not communicate to the prospective client until the day before the hearing, when he says that he will not take the case. The prospective client detrimentally relied on the lawyer by not seeking another lawyer when it would have been a lot easier to do so. In these circumstances,it would be reasonable for the trier of fact to conclude that there was an attorney-client relationship because the lawyer did not manifest a lack of intent to be hired by the client.Restatement of the Law Governing Lawyers Third, § 14(1)(b) (Official Draft 2000), and Id. At Comment e, Illustration 2.
In order for an attorney-client relationship to be formed, it is not necessary that the client pay or agree to pay any money. Rule 6.1(a).Restatement of the Law Governing Lawyers, Third, § 14 (Official Draft 2000), at Comment c. Noris it necessary that the client sign a written agreement. Restatement of the Law Governing Lawyers Third, § 14 (Official Draft 2000), at Comment c, p. 127. Other rules governing lawyers may require that there be a written fee agreement, but those rules are for the protection of the client, not the lawyer. The obligations of the lawyer and client are not symmetrical because the lawyer has fiduciary duties to the client.
In Gentile v. State Bar of Nevada, 1030, 111 S.Ct. 2720, 115 LEd. 888(1991), the court wrote:
“An attorney’s duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client. Just as an attorney may recommend a plea bargain or civil settlement to avoid the adverse consequences of a possible loss after trial, so too an attorney may take reasonable steps to defend a client’s reputation and reduce the adverse consequences of indictment, especially in the face of a prosecution deemed unjust or commenced with improper motives. A defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried. 501 U.S. at 1044.
In this case, the Commonwealth believes that Mr. Kerekes divulged confidences and highly privileged information on the assumption Attorney Fannick would represent him. Indeed, in the court of public opinion,Attorney Fannick had, Thereafter, Attorney Faimick abandoned Mr. Kerekes’ ship, laden with the confidences the eight (8) meetings brought him, and joined forces with Harlow Cuadra.
B. An Attorney-Client relationship existed between Attorney Fannick and Joseph Kerekes, therefore the trial court should disqualify Attorney Fannick from Representing Harlow Cuadra.
“(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client.
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules1.6 and 1.9 (c) that is material to the matter; unless the former client gives informed consent.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter;
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.”
The Explanatory Comment to Rule 1.9 states:
 After termination of a client-lawyer relationship, a lawyer has certain continuing duties with respect to confidentiality and conflicts of interest and thus may not represent another client except in confonnity with this Rule. Under this Rule, for example, a lawyer couldnot properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client. So also a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil action against the government concerning the same transaction. Nor could a lawyer who has represented multiple clients in a matter represent one of the clients against the others in the same or a substantially related matter after a dispute arose among the clients in that matter, unless all affected clients give informed consent. See Comment [ Current and former government lawyers must comply with this Rule to the extent required by Rule 1.11.
 The scope of a “matter” For purposes of this Rule depends on the facts of a particular situation or transaction. The lawyer’s involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests in that transaction clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a factually distinct problem of that type even though the subsequent representation involves a position adverse to the prior client. Similar considerations can apply to the reassignment of military lawyers between defense and prosecution functions with the same military jurisdictions. The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.
 Matters are “substantially related” for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter. For example, a lawyer who has represented a businessperson and learned extensive private financial information about that person may not then represent that person’s spouse in seeking a divorce. Similarly, a lawyer who has previously represented a client in securing environmental permits to build a shopping center would be precluded from representing neighbors seeking to oppose rezoning of the property on the basis of environmental considerations.
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyers responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after full disclosure and consultation When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
If a party in civil litigation waives a conflict, the court may sometimes raises a conflicts issue sua sponte, but it often does not interfere. Robert C. Hacker & Ronald D. Rotunda, Standing, Waiver, Laches, and Appealability in Attorney Disqualification Cases, 3 CORPORATION L. REV 82 (1980).
In criminal cases, the balance of equities is different because the court wants to make sure that the public interest in fair prosecutions is protected and that the criminal defendant has had adequate representation of counsel, a right guaranteed by the Sixth Amendment.
In some cases, a defendant will raise a claim that his counsel’s multiple representation results in a conflict of interest that deprives the defendant of his Sixth Amendment right of effective assistance of counsel. In other cases, the prosecution will challenge the defense counsel’s multiple representation because the prosecutor has an interest in securing valid convictions, that is, convictions that are consistent with the Sixth Amendment. If a court finds that a defense counsel’s representation of multiple interests has created a constitutionally inadequate representation, then the court will overturn the conviction. Reversals of criminal convictions to enforce conflict rules are not an everyday occurrence, but they can hardly be called a unique event.
The presumption in favor of defendant’s choice of counsel “may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict U.S. v. Bradford 121 F.Supp.2d 454(W.D. Pa., 2000); See Wheat v. United States, 486 U.S. 153, 158, 108S.Ct. 1692, 100 L.Ed.2d 140 (1988).
“The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to have assistance of counsel for his defense. See Wheat v. United States 486 U.S. 153, 158, 108 S.Ct. 1692,100 L.Ed.2d 140 (1988). Because the purpose of the Sixth Amendment is to ensure that a defendant receives a fair trial, the proper consideration for a court weighing the issue of disqualification of counsel relates to the adversarial process, not on the defendant’s choice of counsel. Id.at 159, 108 S.Ct. 1692.“Thus, while the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.”Wheat 486 U.S. at 159, 108 S.Ct. 1692.
“The presumption in favor of defendant’s choice of counsel “may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict The evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court.” United States v. Stewart 185F.3d 112, 121-22 (3d Cir.1999) (alteration in original), quoting Wheat486 U.S. at 164, 108 S.Ct. 1692 (1988).
“The trial court confronted with the duty of evaluating whether disqualification is warranted also “has an institutional interest in protecting the truth-seeking function of the proceedings over which it is presiding by considering whether the defendant has effective assistance of counsel, regardless of any proffered waiver.” Stewart 185F.3d at 122, (quoting United States v. Moscony 927 F.2d 742, 749 (3dCir.1991). “Moreover, to protect the critically important candor that must exist between client and attorney, and to engender respect for the court in general, the trial court may enforce the ethical rules governing the legal profession with respect both to client-attorney communications and to conflict-free representation, again regardless of any purported waiver.” Moscony 927 F.2d at 749. “Finally, the court has an independent interest in protecting a fairly-rendered verdict from trial tactics that may be designed to generate issues on appeal.” Id. at 748.
In U.S. v. Bradford 121 F.Supp.2d 454 (W.D. Pa., 2000), Hudak agreed to represent the defendant and filed his formal entry of appearance. Hudak also represents Arnold on a rape case. Arnold and the defendant Bradford were both housed at the same prison. An FBI agent interviewed Arnold regarding conversations he had with the defendant detailing the conspiracy the Defendant was charged with. Arnold, as a cooperating government witness, is prepared to testify against the defendant at trial. The Government moved for disqualification of Hudak.
The Bradford court wrote:
“Here, Hudak represents Arnold, a cooperating government witness who is expected to testify against Hudak’s client at trial. Hudak recognizes that his current representation of Arnold creates an actual conflict of interest and therefore submits that he will withdraw as counsel for Arnold. In addition, Hudak argues against disqualification by stating that he had already worked out a plea bargain for Arnold prior to the FBI agent interview; that he never discussed Bradford with Arnold and he otherwise has no knowledge of anything Arnold might say relevant to Bradford case; and that his client, Bradford, would in effect, waive his right to conflict-free representation by agreeing to limit defense counsel’s cross-examination of Arnold. Hudak also urges the court to examine “what would actually be the subject of his cross-examination, and that such an examination would demonstrate that there is no potential conflict of interest.”
“Assuming that Hudak will withdraw as counsel for Arnold, we conclude that a potential conflict of interest exists. Bradford’s proffered waiver does not alter our conclusion."
“While it is true that the typical scenario where disqualification becomes necessary entails an attorney’s attempt to represent multiple defendants in the same prosecution, we have recognized that conflicts arise where 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 concurrent or prior representation of another client who is a co-defendant, a co-conspirator or a government witness.” Stewait 185 F.3d at 121 (3d Cir.1999) (emphasis in original),quoting Moscon 927 F.2d at 749.
“This is exactly the situation in this case. In order to effectively represent Bradford at trial, Hudak will have to cross-examine a former client testifying for the government and, regardless of Hudak's knowledge concerning Arnold’s testimony, he presumably will have to attack Arnold’s credibility. Conflicts of interest arise whenever an attorney’s loyalties are divided, and an attorney who cross-examines former clients inherently encounters divided loyalties.” Moscony 927 F.2d at 750. “At trial, Hudak may be unwilling or unable to vigorously cross-examine Arnold due to Hudak’s representation of Arnold. Thus, Bradford’s right to effective counsel could be compromised as a result of Hudak’s divided loyalties.” See Stewart 185 F.3d at 121. “We therefore find that a serious potential for conflict of interest exists warranting disqualification of counsel.”
“We also reject Hudak’s suggestion that the court base its disqualification decision on a prediction of whether defense counsel’s likely strategy will, at trial, result in a conflict. The standard of evaluation in this circuit permits a trial court to disqualify counsel if a potential conflict exists, regardless of any proffered waiver.” Stewart 185 F.3d at 121-22; United States v. Voigt 89 F.3d 1050, 1077-78(3d Cir.l996 Moscony 927 F.2d at 750. “Because a trial court cannot easily determine whether a potential conflict will at trial become an actual conflict, the court has “substantial latitude in refusing waivers.” Voigt 89 F.3d at 1077 (quoting Wheat 486 U.S. at 162-64, 108S.Ct. 1692.) “In addition, “notwithstanding an attorney’s pretrial assurances otherwise, a defendant’s trial strategy is not fixed.” Stewart 185 F.3d at 122. “For the court to accept an assurance of a contemplated cross-examination, would be opening the door for a manufactured mistrial or a possible ineffective assistance of counsel claim on appeal.”
“In this regard, the Third Circuit has explained that when considering disqualifying counsel before knowing whether an actual conflict will emerge, the District Court must pass on the issue whether or not to allow a waiver of a conflict of interest by a criminal defendant not with the wisdom of hindsight after the trial has taken place, but in the murkier pre-trial context when the relationships between parties are seen through a glass, darkly. The likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict, even for those thoroughly familiar with criminal trials,... For these reasons we think the district court must be allowed substantial latitude in refusing waivers of conflicts of interest... in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as trial progresses...” Voigt 89 F.3d at 1077 (quoting Wheat 486 U.S. at 162-64,108 S.Ct. 1692.) “We thus find that, regardless of Hudak’s anticipated withdrawal from representing Arnold, a serious potential for conflict exists.”
“Even if the current representation is free of actual conflict, disqualification is appropriate if potential risk for conflict exists under the circumstances of the particular case. Wheat 486 U.S. at 164,108 S.Ct. 1692. The Supreme Court has held:
“...we think the district court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses... The evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court.” Wheat 486 U.S. at 163-164, 108 S.Ct. 1692.
Attorney El-Shabazz represented to the Court that defendants have been independently counseled by another attorney of their right to conflict-free representation and have chosen to waive their right to conflict free representation. However, as the Supreme Court in Wheat discussed, the Sixth Amendment presumption in favor of counsel of choice does not provide for an absolute rule that a defendants waiver will cure any conflict or acts as a prophylactic for the rise of potential conflicts which may be created by joint representation. Wheat 486 U.S. at 160, 108 S.Ct. 1692. In addition, although defendants may waive their right to conflict-free counsel, a waiver may not be adequate in some cases. U.S. v. Voigt 89 F.3d 1050,1075 (3d Cir.), cert. denied, 519 U.S. 1047, 117 S.Ct. 623, 136 L.Ed.2d546 (1996); U.S. v. Moscony 927 F.2d 742, 750 (3d Cir.), cert. denied,501 U.S. 1211, 111 S.Ct. 2812, 115 L.Ed.2d 984 (1991); U.S. v. Dolan 570F.2d 1177, 1184 (3d Cir.1978). “Even if the conflict is waived by all defendants upon the advice of counsel, the circumstances of the waiver may later be revisited on the theory that the waiver was the result of ineffective assistance of counsel.” U.S. v. Chapman CR. No. 99-375-2,1999 WL 692682, 1999 U.S. Dist. LEXIS 13675 (E.D.Pa. Sept. 2, 1999)(Robreno, J.).
In U.S. v. Stout 723 F.Supp. 297 (E.D. Pa., 1989), the court wrote:“Although the defendant has indicated that he is willing to waive any conflicts of interest arising out of Rule 1.7(b), I must refuse his proffered waiver. While the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.” Wheat v.United States 486 U.S. 153, 108 SOt. 1692, 1697, 100 L.Ed.2d 140 (1988).“Rule 1.7(b) anticipates waiver after full disclosure and consultation; nonetheless, the rule mandates disqualification regardless of waiver where, as here, the attorney’s conflict of interest will interfere with his representation. The Supreme Court has held that a trial judge may decline a conflict of interest waiver where he finds the waiver to be ineffectual.” Id. 108 S.Ct. at 1698 (“trial court may reject waiver and refuse counsel of choice where representation may be detrimental to the independent interest of the trial judge to be free from future attacks over the adequacy of the waiver or the fairness of the proceedings in his own court.)(quoting United States v. Dolan 570 F.2d 1177, 1184 (3dCir.1978).” Stout at pg....
Pennsylvania Rule of Professional Conduct 1.18 Duties to Prospective Clients states:
“(a) A person who discusses with a lawyer the possibility of forming aclient-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensures, a lawyer who has had discussions with a prospective client shall not or reveal information which may be significantly harmful to that person learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph(d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
(d) When a lawyer has received disqualifying information as defined in paragraph
(c), representation is permissible if:
(1) both the affected client and the prospective client have given informed consent, or;
(2) all of the following apply:
(i) the disqualified lawyer took reasonable measures to avoid exposure to more disqualifying information than was reasonable necessary to determine whether to represent the prospective client;
(ii) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee there from; and
(iii) written notice is promptly given to the prospective client.