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disqualifying defendant's attorney after finding that the attorney "would be placed in the position of counselling a potential witness to provide evidence adverse to the person who is the source of the money used to pay his professional fee"
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Criminal Action No. 99-375-2.
September 2, 1999
MEMORANDUM
Defendants William Deshields and Anthony Chapman have been charged with conspiracy to distribute "crack" cocaine, in violation of 21 U.S.C. § 846, and aiding and abetting the distribution of "crack" cocaine, in violation of 21 U.S.C. § 841(a)(1). Defendant Deshields is represented by Tariq Karim El-Shabazz, Esquire. Defendant Chapman is represented by Adam Rodgers, Esquire. The Government initially moved to hold a hearing regarding conflict of interest and status of counsel. At the hearing, the Government orally moved to disqualify Mr. Rodgers from representing defendant Chapman in this case because the Government believed that Mr. Rodgers' fees for representing defendant Chapman were being paid by co-defendant Deshields. According to the Government, as a result of this financial arrangement, Mr. Rodgers continuing representation of defendant Chapman placed Mr. Rodgers in an impermissible conflict of interest. The court agrees.
Shortly after defendant Chapman was arrested on July 8, 1999, defendant Chapman gave a written statement to the Pennsylvania state police implicating co-defendant Deshields as the supplier of the "crack" cocaine. Defendant Chapman also approached Special Agent Felix Acosta of the Drug Enforcement Administration, the agent who arrested defendant Chapman, and asked Agent Acosta about the sentencing guidelines and the possibility of cooperating with the authorities. (Aff. of Felix Acosta, August 18, 1999). On July 9, 1999, defendant Chapman was brought before a United States Magistrate Judge for an initial appearance. Prior to the hearing, defendant Chapman executed an affidavit swearing that he was without funds to retain counsel. (See doc. no. 15). In light of this claim, the United States Magistrate Judge appointed the Defender Association of Philadelphia, Federal Court Division, to act as counsel for defendant Chapman in this matter. (See doc. no. 14). On July 26, 1999, Mr. Rodgers entered an appearance on behalf of defendant Chapman, substituting for the Federal Defender's Office. (See doc. no. 28). Defendant Chapman had been referred to Mr. Rodgers by Mr. El-Shabazz, counsel for co-defendant Deshields. Mr. El-Shabazz and Mr. Rodgers share office space, staff and use certain facilities in common. Mr. Rodgers had never represented defendant Chapman in the past.
At the hearing, Mr. El-Shabazz and Mr. Rodgers acknowledged that they shared office space and that Mr. El-Shabazz had referred defendant Chapman to Mr. Rodgers, but denied that their representation of co-defendants in this case constituted a conflict of interest. (Tr. at 6). Mr. Rodgers argued further that even if his representation of defendant Chapman under these circumstances could be construed as a conflict of interest, the conflict was waivable. (Tr. at 6).
At the hearing, it was established, through the representations of Mr. El-Shabazz and Mr. Rodgers, that they share a suite of four offices with two other attorneys. (Tr. at 8). Each attorney in the suite has a private office with separate client files. Mr. El-Shabazz employs an office manager, messenger, and secretary. Mr. Rodgers sends his typing out to a typing service. The attorneys share a fax machine, copy machine, conference room, and bathroom facilities. The suite is accessed through a common reception area and staffed by a common receptionist who services all four attorneys. The names of the attorneys are all listed on a plaque on the wall of the reception area. Telephone calls to all of the attorneys in the suite are answered by a common receptionist as "El-Shabazz, Rodgers, and Hardaway." (Tr. at 9). Mr. El-Shabazz acknowledged that answering the phone in that fashion "gives the appearance of being a firm." (Tr. at 9). The suite is rented under a joint lease with Mr. El-Shabazz, Mr. Rodgers, and another attorney listed as lessees on the lease. Telephone expenses are shared equally among all of the attorneys of the suite, regardless of the number of the calls made by each. (Tr. at 24-25). Mr. El-Shabazz's and Mr. Rodgers' business cards display the name of the individual attorney superimposed over an identical silhouette of three pyramids. Each lawyer has his own stationery, but the letterhead also shows the name of the attorney superimposed over the silhouette of three pyramids. (Tr. at 13, 24).
The representation of criminal defendants which is not free of conflict presents serious problems in the administration of justice. While co-defendants may initially agree on a strategy of cooperation with each other, at a later time, one of the co-defendants may turn against the other and attempt to portray himself as less culpable at the expense of the other co-defendant. Indeed, one of the co-defendants may seek to cooperate with the Government in return for a recommendation of leniency. A serious risk of a conflict of loyalties arises when one co-defendant, who has implicated another co-defendant and who may wish to cooperate with the Government by testifying against the other co-defendant, is represented by counsel whose fees are being paid by the co-defendant against whom the first co-defendant may wish to testify. 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.
For these reasons, it is now accepted that the defendant's Sixth Amendment constitutional right to be tried with the assistance of counsel includes, as a corollary, the requirement that such representation be free from conflict of interest. See United States v. Gambino, 864 F.2d 1064, 1069 (3d Cir. 1988),cert. denied, 492 U.S. 906, 109 S. Ct. 3215 (1989). While the defendant may waive this right to conflict-free representation, a waiver may not be adequate in some cases. See United States v. Voigt, 89 F.3d 1050, 1075 (3d Cir.), cert. denied, 519 U.S. 1047, 117 S. Ct. 623 (1996); United States v. Moscony, 927 F.2d 742, 750 (3d Cir.), cert. denied, 501 U.S. 1211, 111 S. Ct. 2812 (1991); Davis v. Stamler, 650 F.2d 477, 480 (3d Cir. 1981); United States v. Provenzano, 620 F.2d 985, 1004-05 (3d Cir.), cert. denied, 449 U.S. 899, 101 S. Ct. 267 (1980);United States v. Dolan, 570 F.2d 1177, 1194 (3d Cir. 1978). As the United States Supreme Court stated in Wheat v. United States, "[t]he District Court must recognize a presumption in favor of petitioner's counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of serious potential for conflict." Wheat v. United States, 486 U.S. 153, 164, 108 S. Ct. 1692 (1988).
At the hearing, the court inquired whether Mr. Rodgers' fees for representing defendant Chapman were being paid by co-defendant Deshields. Mr. Rodgers objected to disclosing the identity of the source of the fees on the basis of attorney-client privilege. The court overruled the objection finding that ordinarily the source of the fees was not cloaked with the protection of the attorney-client privilege, and that, under the circumstances, the protection was not applicable here. (Tr. at 5). See In re Grand Jury Investigation (Tinari), 631 F.2d 17, 22 (3d Cir. 1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 869 (1981) ("[I]n the absence of unusual circumstances, the [attorney-client] privilege does not shield the fact of retention, the identity of clients, and fee arrangements.") The court then asked Mr. Rodgers:
Court: Okay, well, who is paying your fee?
Mr. Rodgers: Mr. Chapman and I have an arrangement in terms of — I have an arrangement with Mr. Chapman and I am retained by Mr. Chapman. I did not ask Mr. Chapman who's — where he gets his money from.
(Tr. at 6).
Based on the evidence presented at the hearing, the court drew the inference that Mr. Rodgers' legal fees for representing defendant Chapman were being paid by co-defendant Deshields. In response, counsel argued that it was professionally sensitive to discuss the source of the fees in open court and requested that the court hear counsel for both defendants on this matter in camera. Over the Government's objections, the court allowed counsel to submit affidavits, in camera and under seal, explaining the source of the fees paid by defendant Chapman to Mr. Rodgers for his representation. Neither counsel, however, made any submissions to the court on this point. Therefore, given the inference drawn by the court at the hearing, and in the absence of a contrary explanation as to the source of Mr. Rodgers' fees, the court concludes that co-defendant Deshields is the source of the money used by defendant Chapman to pay the fees of Mr. Rodgers. See United States v. Castro, No. 94-223, 1999 WL 563808, at *1-2 (E.D. Pa. Sept. 21, 1995) (accepting the Government's allegation that the defendant's fees were paid by a co-defendant, in the absence of an explanation as to the source of the fees); United States v. Martinez-Zayas, 655 F. Supp. 682, 683 n. 1 (E.D. Pa. 1987) ("assuming" that fees were being paid by a co-defendant, in the absence of an explanation to the contrary).
Defendant Chapman implicated co-defendant Deshields in a written statement and approached a Government agent about possible cooperation. Then, defendant Chapman represented to the United States Magistrate Judge that he had no funds to retain counsel. After his initial appearance before the United States Magistrate Judge, defendant Chapman was referred by counsel for co-defendant Deshields, whom defendant Chapman had already implicated, to a lawyer who had never previously represented defendant Chapman and with whom counsel for co-defendant Deshields has a close professional association. Mr. Rodgers has been paid to represent defendant Chapman.
Given this factual finding, the court concludes that the payment of the legal fees of defendant Chapman by co-defendant Deshields, whom defendant Chapman has already implicated in criminal wrongdoing and who has demonstrated an initial interest in cooperating with the Government, raises a substantial risk of a conflict of interest. See Wheat, 486 U.S. at 163-64. This is so because, in counselling defendant Chapman whether to cooperate with the Government and testify against co-defendant Deshields, Mr. Rodgers would be placed in the position of counselling a potential witness to provide evidence adverse to the person who is the source of the money used to pay his professional fee.
At the hearing before this court, Mr. Rodgers took offense to the Government's motion, arguing that it implies that he is unable to exercise professional judgment in zealously representing the best interests of his client. To the contrary, the court acknowledges that its ruling on this matter is not a reflection upon Mr. Rodgers' integrity as a member of this bar. The conflict of interest rule is prophylactic, protecting not only the rights of the defendant, but also the integrity of the system, even in cases such as this one, where there is no suggestion of impropriety by counsel.
The court concludes that the disqualification of Mr. Rodgers as counsel for defendant Chapman under the circumstances of this case is warranted. An appropriate order follows.
There are two other grounds that could support the disqualification of Mr. Rodgers in this case. One, a lawyer has a duty to protect client confidences disclosed during the course of legal representation. See Rule of Professional Conduct 1.6. As part of this duty, a lawyer must take reasonable steps to protect the information disclosed by a client from being exposed to third parties. See Comment to Rule 1.6 ("A fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation. . . . The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source."). Under the physical office arrangements between Mr. El-Shabazz and Mr. Rodgers, there is a substantial risk that confidences disclosed by one co-defendant to his counsel would be inadvertently disclosed to other counsel sharing the same suite. Here, Mr. El-Shabazz and Mr. Rodgers share an office suite with a common reception area, conference room and bathroom facilities, receive phone calls on a common number answered by a common receptionist, and use the same fax and copying machines. Given the close proximity of the attorneys' offices and the sharing of facilities and staff, privileged information communicated to counsel for one defendant by his client may inadvertently come to the attention of counsel for the other defendant. For example, there is a substantial risk that one counsel could learn the identity of potential witnesses who come to the suite of offices to meet counsel for the co-defendant, or by overhearing telephone conversations or reading information in faxes.
Two, Mr. Rodgers may also be subject to disqualification under Rule of Professional Conduct 1.10, which provides "[w]hile 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. . . ." The critical question under this Rule is whether Mr. El-Shabazz's and Mr. Rodgers' association is the equivalent of "lawyers . . . associated in a firm." Of course, the mere fact that Mr. El-Shabazz and Mr. Rodgers share office space is not enough to consider their relationship akin to that of a law firm. See United States v. Stalks, No. 94-195, 1994 WL 606060, at *2 (D.N.J. Nov. 1, 1994). In making this determination, the court should consider the use of shared office space, shared libraries, shared secretaries, shared computer equipment, and most importantly, shared access to client files.See United States v. Pungitore, 910 F.2d 1084, 1137 (3d Cir. 1990), cert. denied, 500 U.S. 915, 111 S. Ct. 2009 (1991). Other factors to be considered include "the manner in which [the attorneys] represent themselves to the public, the manner in which they share fees and/or legal work and whether or not they have mutual access to confidential client information." Stalks, 1994 WL 606060 at *1.
Given that the court has found disqualification to be warranted, the court need not decide whether, under the facts of this case, Rules 1.6 and 1.10 mandate Mr. Rodgers' disqualification.
ORDER
AND NOW, this 2nd day of September, 1999, upon consideration of the Government's motion to hold hearing regarding conflict of interest and status of counsel (doc. no. 35), and oral motion to disqualify Adam Rodgers, Esq. from representing defendant Anthony Chapman, and after a hearing and a subsequent opportunity to submit affidavits, it is hereby ORDERED that the motions are GRANTED.It is further ORDERED that the Defender Association of Philadelphia, Federal Court Division, is appointed to represent Mr. Chapman in these proceedings.
Mr. Chapman is, of course, free to retain other conflict-free private counsel. If he wishes to do so, he must do so within fifteen (15) days from the date of this order.