Saturday, March 8, 2008

Disqualifying Fannick: U.S. v. Bradford

In U.S. v. Bradford 121 F.Supp.2d 454 (W.D. Pa.,(2000), the court wrote:

“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. 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.”