Opinion
No. 29481
August 18, 2004
MEMORANDUM OF DECISION RE MOTION TO DISQUALIFY
The motion to disqualify now before the court involves the application of Rule of Professional Conduct 1.7 to an attorney representing a defendant in a criminal case when a partner of that attorney presently represents, in an unrelated civil action, a police officer who is a material witness against the criminal defendant. For the reasons set forth below, the motion to disqualify must be granted.
The relevant facts are not in dispute. On April 26, 2004, the defendant, Israel Torres, was arrested for the crime of murder. The Uniform Arrest Report, contained in the file, discloses that the arresting officer was Detective Edwin Rodriguez of the New Haven Police Department. Torres allegedly murdered the victim, Jeanette Jones, by stabbing her on April 21, 2004 in New Haven. On April 27, 2004, the law firm of Jacobs, Grudberg, Belt Dow, P.C. ("firm") entered an appearance for Torres. The appearance was signed by Attorney Ira B. Grudberg, a member of the firm.
On August 12, 2004, a probable cause hearing was scheduled pursuant to Conn. Gen. Stat. § 54-46a. Prior to the commencement of the hearing, the State made an oral motion to disqualify the firm on the ground that the firm presently represents Rodriguez in a civil action currently pending in the United States District Court for the District of Connecticut. An evidentiary hearing was held in which Rodriguez testified, and oral statements were made by Torres and Grudberg. Following the hearing, the court was provided with copies of the relevant documents in the civil action, Rodriguez v. City of New Haven, No. 3:01 CV 592 (D.Conn.).
The Complaint in Rodriguez was filed on April 12, 2001, by Attorney Paul A. Morello, Jr. The Complaint, brought pursuant to 42 U.S.C. § 1983, alleges that, in a letter dated January 15, 2001, Rodriguez was reprimanded for failing to report a violation of a law and withholding evidence and further alleges that the charges against Rodriguez were false and were made in retaliation for Rodriguez's reporting of official misconduct involving an investigation of the 1996 murder of one Philip Cusick. On February 24, 2003, Attorney Rosemarie Paine filed her appearance as counsel for Rodriguez. Paine was, at the time, an associate of the firm. On January 1, 2004, she became a member of the firm. She continues to represent Rodriguez in the pending action.
Rodriguez is a material witness for the prosecution in State v. Torres. The State represents that Rodriguez will testify that Torres told him that he "messed up" and, additionally, that Torres told him where the knife was located.
Grudberg is an experienced and well-respected attorney in both civil and criminal litigation. His integrity is not in dispute. There is no suggestion that Grudberg has access to confidential information that could be used to impeach Rodriguez. Grudberg has never personally participated in the litigation of Rodriguez v. City of New Haven, knows nothing of the Rodriguez case other than the facts discussed in open court during the hearing on the motion to disqualify in the Torres case, and has erected a "Chinese Wall" in the firm to prevent him from learning anything about the case from Paine. He represents that, for independent reasons of trial strategy, he does not intend to impeach Rodriguez with either Rodriguez's reprimand (which is, in any event, public information) or the facts on which that reprimand was based.
Rodriguez testified that he does not consent to any action by Grudberg in the case of State v. Torres that may be detrimental to his interests in the case of Rodriguez v. City of New Haven.
Torres, after consultation, consented to any conflict of interest that may arise from the firm's dual representation. The validity of his consent is not in question.
None of the facts just recited are in dispute. The dispute focuses on the proper application of Rule 1.7. Because Grudberg and Paine are members of the same firm, they are each bound by Rule 1.10(a), which provides that, "While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7."
Rule 1.7 provides that,
(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 lawyer's 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 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.
"Subsection (a) prohibits representation of opposing parties in litigation. Simultaneous representation of parties whose interests in litigation may conflict . . . is governed by subsection (b)." Rule of Professional Conduct 1.7 cmt. The State concedes that subsection (a) is inapplicable to the facts presented here. The focus of the parties is, consequently, on subsection (b).
Grudberg argues that subsection (b) is equally inapplicable to the facts at hand In his view, there is no possibility that the firm's representation of Torres will be "materially limited" by the firm's responsibilities to Rodriguez. This view is incorrect. The central problem presented by the evidence here is that the firm has conflicting duties to Torres and Rodriguez, and no mechanism exists to make this conflict disappear. The firm owes Torres the duty in his criminal case to attack the credibility of the material witnesses against him whenever it is possible to mount such an attack. One of those witnesses is Rodriguez. At the same time, the firm owes Rodriguez the duty in his civil case to avoid taking action that would diminish his credibility.
This is not a problem arising from the potential use of confidential information that can be resolved by the use of a "Chinese wall." As mentioned, there is no suggestion that Grudberg has access to confidential information of this description. The problem is that the firm owes Torres the duty of using every legitimate means of attacking Rodriguez's credibility. Attacks of this description are not necessarily limited to matters concerning the subject matter of Rodriguez v. City of New Haven. Rodriguez, in his capacity as witness in State v. Torres, may be subject to attack because of internal inconsistencies in his testimony in the Torres case itself, inconsistencies between his testimony and his extrajudicial statements, and other matters concerning his credibility. The firm owes Torres the duty of attacking Rodriguez's testimony whenever possible, not just by cross-examination and the introduction of external evidence, but, if appropriate, by strong criticism and disparaging comments in closing argument. At the same time, however, the firm owes Rodriguez the duty of not making him look evasive, unperceptive, or foolish in a public courtroom. This goes well beyond a duty not to disclose confidential information. The public disclosure of any lack of credibility on Rodriguez's part — whether or not such lack of credibility is related to the underlying facts of Rodriguez v. City of New Haven — is likely to affirmatively damage Rodriguez in his attempt to seek compensation in his civil action. Rodriguez's interest in that action is to appear both as a credible witness and an upstanding citizen worthy of the jury's respect. Under these circumstances, Rule 1.7(b) is unavoidably applicable to the facts of this case. See State v. Reed, 174 Conn. 287, 293, 386 A.2d 243 (1978) (finding sufficient justification to disqualify a criminal defense attorney where that attorney represents an important state's witness in an unrelated criminal matter).
The inquiry thus turns to whether the exception to subsection (b) is established and the firm's representation of Torres may continue despite the "material limitation" caused by the firm's responsibilities to Rodriguez. Under the facts presented here, the exception cannot be established in spite of the facts that Torres has consented after consultation and that Grudberg believes that his representation of Torres will not be adversely affected. This is because counsel's belief that the representation will not be adversely affected cannot be deemed reasonable under the circumstances of this case. In determining whether an attorney's belief that the representation will not be adversely affected, the court is obliged to view the situation from the vantage point of an "ordinary knowledgeable citizen acquainted with the facts." State v. Loyal, 753 A.2d 1073, 1080 (N.J. 2000). This point of view necessarily takes into account the public interest in protecting the integrity of the judicial process. When this perspective is employed, it is evident that the requirements of Rule 1.7(b)(1) cannot be satisfied here.
There is a nice question as to who "the client" is for purposes of Rule 1.7(b)(2), when the potential disqualification problem arises from the firm's representation of two different clients. Given the fact that Rule 1.7(a)(2), applicable in cases of directly adverse representation, requires the consent of "[e]ach client," Rule 1.7(b)(2)'s use of the term "the client" facially appears to require the consent only of the client whose attorney is sought to be disqualified. In this case, that "client" is Torres. Because, as discussed in the text, the "reasonable belief" requirement of Rule 1.7(b)(1) is not satisfied here in any event, the proper interpretation of Rule 1.7(b)(2) need not be further discussed.
State v. Reed, supra, suggests in dictum that conflicts of this description "may be waived." 174 Conn. at 293. Reed, however, was decided before Wheat v. United States, 486 U.S. 153 (1988), made it clear that, "The Sixth Amendment right to choose one's own counsel is circumscribed in several important respects." Id. at 159. More recent courts have reasoned that conflicts of this description are not waivable because of "the institutional interest in protecting the integrity of the judicial process." United States v. Locasio, 6 F.3d 924, 934 (2d Cir. 1993), cert. denied, 511 U.S. 1070 (1994). See State v. Watson, 620 N.W.2d 233, 239 (Iowa 2001), and authorities cited therein. The Supreme Court of New Jersey has explained, in an analogous case, that a defendant's waiver "does not absolve the trial court of the responsibility for assuring the fairness and reliability of the trial." State v. Loyal, supra, 753 A.2d at 1082. The Appellate Court has very recently instructed us that, "Under no circumstances and by no stretch of the imagination could an attorney with any propriety ever represent an eyewitness or a material witness to a crime and also represent, or become professionally associated with, the individual charged with the commission of such a crime." State v. Crocker, 83 Conn.App. 615, 629 (2004) (quoting In re Garber, 472 A.2d 566, 572 (N.J. 1984)). The Appellate Court's categorical language leaves little room for maneuver in a context in which danger lurks at every turn.
The joint representation of criminal defendants and material witnesses poses obvious danger to the rights of clients to be represented by attorneys of unswerving loyalty. "When a client engages the services of a lawyer in a given piece of business he is entitled to feel that, until that business is finally disposed of in some manner, he has the undivided loyalty of the one upon whom he looks as his advocate and champion." Grievance Committee v. Rottner, 152 Conn. 59, 65, 203 A.2d 82 (1964). There is an equally significant danger to the public interest in having a criminal justice system that operates fairly and impartially. For reasons already discussed, a firm that presently represents both a criminal defendant and a material witness to a crime in the context presented here will have irreconcilably divided loyalties, notwithstanding the fact that the joint representation arises out of two different cases and notwithstanding a "Chinese Wall" of confidentiality. A belief that the lawyer's representation will not be adversely affected under these circumstances is not objectively reasonable.
The motion to disqualify is granted.
Jon C. Blue Judge of the Superior Court.