In U.S. v. Joyce 330 F.Supp.2d 527 (E.D. Pa., 2004), the court wrote,
“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....
“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....
