Opinion
Cause No. IP00-0087-CR-01-B/F
November 6, 2001
ENTRY ON NOTICE OF NEWLY DISCOVERED ACTUAL CONFLICT OF INTEREST
This matter comes before the Court on the Government's Notice of Newly Discovered Actual Conflict of Interest, which alerted the court to a serious potential conflict of interest in the representation of Defendant Desmond Christian in the instant matter by the law firm of Ruckelshaus, Roland, Kautzman Hasbrook. A hearing was held on November 2, 2001, regarding the substance of this Notice. For the reasons set forth below, we have determined that the firm must be disqualified as counsel for Defendant in order to preserve Defendant's Sixth Amendment rights.
Factual Background
Kokomo police officers Desmond Christian, Jason Hahn, and Craig Smith were indicted on July 12, 2000, by a grand jury on charges of using excessive force upon Kenneth Kail at the Howard County Jail on October 20, 1998. The three officers were initially represented by a single law firm, Ruckelshaus, Roland, Kautzman Hasbrook (the "Ruckelshaus firm"). Prior to indictment, each of the defendants voluntarily testified before the grand jury while represented by the Ruckelshaus firm. By letter dated July 21, 2000, the Government first raised issues relating to a potential conflict of interest on the part of the Ruckelshaus firm regarding the need for alternate representation for Smith and Hahn based on their allegedly "adversarial postures." D's Resp. to Mot. to Disqualify, Ex. A. After discussions between the Government and the Ruckelshaus firm, Smith and Hahn were transferred to new counsel, and written waivers of potential conflicts and consents to the Ruckelshaus firm's continued representation of Christian were executed by both Smith and Hahn. Id., Exs. C, D.
Nonetheless, on December 28, 2000, the Government filed a Motion to Disqualify Attorney Ruckelshaus from representing Christian based on his prior representation of Smith and Hahn. The Government argued that Ruckelshaus received information in confidence from Smith and Hahn that would create a conflict of interest if he continued to represent Christian and that written waivers could not cure this potential conflict. A hearing was held on April 18, 2001, and, for the reasons stated in open court, we denied the Motion to Disqualify.
On September 5, 2001, both Smith and Hahn entered guilty pleas to the charges against them and agreed to cooperate with the Government, including by testifying against Defendant Christian. A jury trial for Christian in which Smith and Hahn are expected to be called as Government witnesses was set to begin on November 5, 2001. On November 1, 2001, the Government filed a Notice of Newly Discovered Actual Conflict of Interest ("Notice"), alleging that in preparing witnesses for trial they discovered that Smith "lays part of the blame for his failure to come forward earlier on the advice he received from the [Ruckelshaus firm]." Notice, at unnumbered 2. On Friday, November 2, an expedited hearing was held, during which the Court elicited input from attorneys for both the Government and the Ruckelshaus firm on the likelihood of the conflict actually arising in the course of the trial and suggestions to avoid or cure the alleged conflict. We took the matter under advisement at the conclusion of the hearing. This ruling addresses and resolves those issues.
Analysis
The Sixth Amendment guarantees that "in all criminal prosecutions, the accused shall enjoy the right . . . to have the effective assistance of counsel." U.S. Const. am. VI. This includes both the right to retain the counsel of one's own choosing, Wheat v. U.S., 486 U.S. 153, 159 (1988); U.S. v. Lowry, 971 F.2d 55, 59 (7th Cir. 1992); U.S. v. Harmon, 914 F. Supp. 275, 276 (N.D.Ill. 1996), and the right to employ counsel free of conflicting loyalties. Cuyler v. Sullivan, 446 U.S. 335 (1980); Harmon, 914 F. Supp. at 276. However, "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, quoted in U.S. v. Spears, 965 F.2d 262, 276 (7th Cir. 1992). The presumption in favor of a 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." Wheat, 486 U.S. at 164.
At the intersection of these two rights, we find the present dispute. The Government's Notice has placed before the Court evidence suggesting the serious possibility that the Ruckelshaus firm's advocacy on behalf of Christian may be impaired by their prior representation of Smith and Hahn. Because this allegation implicates rules governing standards of conduct for practicing attorneys and attorney-client relationships, we are guided by the applicable ethical canons.
Pursuant to Local Rule 83.5(f), the conduct of attorneys practicing in this Court is governed by the Rules of Professional Conduct, as adopted by the Indiana Supreme Court. Indiana Rule of Professional Conduct 1.7(b) provides, in relevant part, "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." The issue presented by the Government's Notice centers on the likelihood of adverse effects on defense counsel's representation of Christian based on continuing duties owed to Smith and Hahn.
We embark upon this inquiry with great care, noting that "disqualification is a `drastic measure which courts should hesitate to impose except when absolutely necessary.'" Gen-Cor, LLC v. Buckeye Corrugated, Inc., 111 F. Supp.2d 1049, 1055 (S.D.Ind. 2000), quoting Schiessle v. Stephens, 717 F.2d 417, 420 (7th Cir. 1983). The challenge posed by the conflict-of-interest calculus is to achieve a "delicate balance . . . between the right of an individual to retain counsel of his free choice and the necessity that the court uphold the ethical standards of the Code of Professional Responsibility." Whiting Corp. v. White Mach. Corp., 567 F.2d 713, 715 (7th Cir. 1977). The district court has broad discretion in determining whether disqualification is a necessary remedy. Whiting Corp., 567 F.2d at 715; Cardenas v. Benter Farms, 2001 WL 292576, at *1 (S.D.Ind. Feb. 7, 2001). However, this discretion must be guided by the weight of the constitutional concerns surrounding the problem.
As recently as November 5, 2001, these issues were aired before the Supreme Court. Mickens v. Taylor, 240 F.3d 348 (4th Cir. 2001), cert. granted, 121 S.Ct 1651 (No. 00-9285) (whether a defendant must show an actual conflict of interest and an adverse effect in order to establish a Sixth Amendment violation where a trial court fails to inquire into a potential conflict of interest about which it reasonably should have known).
The Government's Notice alleges that Smith attributes his delay in providing a truthful account in part to advice he received from the Ruckelshaus firm. In addition, at the hearing on the instant Notice, counsel for Smith confirmed that there will likely be discrepancies between Smith's grand jury testimony and the testimony he offers at trial. Smith's varying factual accounts of events relating to the charges in this case and his opinion as to the cause of his delay are ripe material for cross-examination by defense counsel when Smith testifies as a Government witness. If Smith attempts to explain these discrepancies by citing advice provided by the Ruckelshaus firm, current defense counsel will be powerless to impeach him on this point without violating continuing duties to Smith as a former client.
We must note, as the Government repeatedly stated at the hearing on the Notice, that there is no evidence of any impropriety on the part of the Ruckelshaus firm, nor any factual basis to suggest that its attorneys suborned perjury by Smith or anyone else.
Counsel for Defendant Hahn indicates that these issues are not likely to arise in his case.
Conversely, if defense counsel attempts to alleviate the conflict by simply not touching these important credibility issues, then the advocacy afforded to Christian has been compromised. Government counsel also indicates that if Smith's testimony is undermined by Christian's counsel's cross-examination of him, they need to be free to attempt to rehabilitate Smith, without the constraints that might arise if the Ruckelshaus firm remains as defense counsel.
The colloquy at the hearing between the Court and attorneys for the Government, and for Smith and Hahn, and the Ruckelshaus firm illustrated the inherent difficulties in preventing the emergence of a conflict at trial. Several options were suggested, but none adequately addresses the need to be free to attack the credibility of Government witnesses in order to adequately present Defendant's case. In an effort to assist the Court in resolving this dilemma, defense counsel even offered for our in camera inspection a complete, scripted version of the planned cross-examination of the Government witnesses; we declined. While this strategy offers some assurance that a conflict may be avoided, it nonetheless hamstrings the defense by restricting available avenues for impeachment of crucial witnesses. Defense counsel would be forced to steer clear of entire topics of cross-examination and attempt the unrealistic task of isolating from his strategic calculus that information gained through the course of representation. No matter how cautiously we might proceed across this minefield of problems, we do not believe we can completely anticipate and avoid every potential hazard, short of requiring the Ruckelshaus firm to withdraw.
In United States v. Voight, 89 F.3d 1050 (3d Cir. 1996), the Third Circuit addressed a closely analogous case involving the district court's disqualification of defense counsel. There, attorney James Binns represented several members of a defendant trust, including John Voight, Ralph Anderskow, and Donald Anchors, for purposes of responding to grand jury subpoenas. Id. at 1078. The Government moved to disqualify Binns as counsel for Voight based on his prior representation of co-defendants Anderskow and Anchors. Id. at 1073. Both Anderskow and Anchors attempted to execute waivers of potential conflicts, but the district court rejected them. Noting a "foaming caldron of representation issues" and the likelihood that Binns might be called upon to cross-examine former clients Anderskow and Anchors, the district court disqualified Binns from serving as additional counsel for Voight. Id. The court of appeals affirmed the disqualification, given the "strong possibility that Anderskow might face cross-examination by a former attorney." Id. at 1078. The court observed that "[c]onflicts of interest arise whenever an attorney's loyalties are divided, and an attorney who cross-examines former clients inherently encounters divided loyalties." Id., quoting U.S. v. Moscony, 927 F.2d 742, 750 (3d Cir. 1991).
We recognize fully that disqualification is an extremely harsh consequence of a conflict that has arisen merely by happenstance. However, as revealed in our colloquy at the hearing with defense counsel and with the Government, we conclude that there are no other workable options to protect against very serious and highly likely problems that would emerge at trial. Even those solutions proposed in good faith by defense counsel would not avoid the impairment of advocacy we must make every effort to avoid. Therefore, the Ruckelshaus firm is disqualified from representing Defendant Christian at trial and must promptly withdraw.
Conclusion
The Government's Notice of Newly Discovered Actual Conflict of Interest alerted the Court to the serious possibility that defense counsel's advocacy on behalf of Defendant Christian would necessarily be impaired by continuing duties he owes to two former clients, now Government witnesses. Finding no less intrusive a remedy to alleviate the serious potential that a conflict of interest will compromise the Ruckelshaus firm's ability to effectively advocate on behalf of Christian, we hold that the Ruckelshaus firm is disqualified from representing Christian at trial. All motions not previously ruled upon by the Court remain pending until Christian's replacement counsel can enter an appearance and prepare for trial, and all current settings on the docket are hereby vacated until further order of the Court. Defendant Christian is ordered to secure replacement counsel and have said replacement counsel enter an appearance within 30 days.