Opinion
00 CR. 960.
October 19, 2001
Laurel Loomis Eric Snydey, U.S. Department of Justice Criminal Division, Washington, D.C., FOR PLAINTIFFS.
LARRY J. SILVERMAN, Esq., New York, NY., VIVIAN SILVITZ, Esq., South Salem, NY., Benjamin Brafman, BRAFMAN ROSS, P.C., New York, NY., Richard A. Greenberg, NEWMAN GREENBERG, New York, NY., FOR DEFENDANTS.
MEMORANDUM AND ORDER
Defendant Yardena Hebroni, also know as Yardena Hevroni (hereinafter "Hebroni" or "defendant") is charged with four counts of money laundering and conspiracy to launder money in violation of 18 U.S.C. § 1956. The government brings the present motion to disqualify the law firm of Newman Greenberg from representing defendant. For the reasons set forth below, the government's motion is granted.
I.
The record for this motion is rather complicated The court thus sets forth the facts in some detail. Defendant was indicted on September 15, 2000 and entered a not guilty plea on October 10. On January 9, 2001, Hebroni substituted the law firm of Newman Greenberg for her previous counsel. On March 28, Richard A. Greenberg, of that firm, submitted a bail motion that included a document marked Exhibit B, which purported to be a communication from the authorities in Panama to law enforcement officials in the United States. Exhibit B, which bears the signatures of two Panamanian prosecutors, asserts that "nothing has come to light" in the Panamanian government's investigation of the alleged criminal activity by Hebroni and her co-defendants.
After receiving the bail memo, the government promptly objected that the Exhibit B was a forgery and offered to provide testimony by the supposed signatories that they had never signed the document. In a letter to the court dated April 9, Mr. Greenberg withdrew the bail motion, noting that events had "undermined our confidence in the validity of the document." (The court notes that although defendant served courtesy copies of the motion on the government and the court, the original was never filed with the Clerk of Court and no entry for the bail motion exists on this case's docket report. Mr. Greenberg explains in his April 9 letter that "[w]e never did get around to filing the original.")
The government then brought the instant motion on April 11, seeking the disqualification of Newman Greenberg as Hebroni's counsel. By a letter dated April 11, Newman Greenberg withdrew as Hebroni's representatives, rendering the government's motion moot. Mr. Larry Silverman was subsequently substituted as defendant's attorney.
The government then notified the court by a letter dated September 18, 2001, that Mr. Silverman intended to have Mr. Greenberg appear in court on behalf of defendant to argue a motion to dismiss the indictment, and that the government would like to renew its motion for disqualification. Defense counsel responded with a four-paragraph letter on September 21 that disparaged the government's motion as "baseless, even irresponsible" and "frivolous," but cited no legal authority. Since the government had submitted a full brief on the issue, the court directed defendant to respond to the government's brief on the disqualification motion.
On October 5, the court received an electronic mail communication from the electronic mail account of Vivian Shevitz, counsel to codefendant Argento Vivo, S.A. This message was evidently a joint communication from Mr. Silverman and Ms. Shevitz. In it, defendants declined to file further papers on the disqualification motion and agreed to have the court decide the motion on the papers already submitted. In order to preserve the record for this case, the court on that day directed defendant to submit a paper version of this letter to the court, so that it could be properly docketed, which Ms. Shevitz did on October 15. On October 10, the government indicated in a letter of that date that it was willing to have the court decide the' motion on the papers submitted to date. The court then considered the motion ready for decision.
II.
Although the Sixth Amendment to the Constitution provides for the right of the accused to counsel in all criminal prosecutions, the Supreme Court has held that such right is not absolute. Wheat v. United States, 486 U.S. 153, 158-59, 108 S.Ct. 1692, 1696-97 (1988). The right to counsel in intended to "assure fairness in the adversarial criminal process," and thus the focus of Sixth Amendment jurisprudence is on the "adversarial process, not on the accused's relationship with his lawyer as such." Id. (quoting United States v. Cronic, 466 U.S. 648, 657 n. 21, 104 S.Ct. 2039, 2046 n. 21 (1984)). A defendant has no absolute right to be represented by the attorney of his or her preference. Wheat, 486 U.S. at 159. 108 S.Ct. at 197.
In Wheat, the Supreme Court recognized that "[f]ederal courts have an independent interest in ensuring that criminal trials are conducted within ethical standards of the profession and that legal proceedings appear fair to all who observe them." Id. at 160, 108 S.Ct. at 1698. Therefore, some conflicts of interest between attorney and client are considered serious enough that defendant's waiver will not cure them. For example, an attorney should be disqualified any time he or she might be called as a witness for his or her client, or if there is a risk the attorney could become an unsworn witness for the client at trial. United States v. Locascio, 6 F.3d 924, 932-34, (2d Cir. 1993), cert. denied, 511 U.S. 1070, 114 S.Ct. 1645 (1994); see also United States v. McKeon, 738 F.2d 26, 34-35 (2d Cir. 1984) (requiring disqualification where attorney would be essentially acting as both an advocate and a witness). Similarly, an attorney may be disqualified if there is a risk that illegal conduct by that attorney may be revealed in the course of the litigation. United States v. Cancilla, 725 F.2d 867, 869-70 (2d Cir. 1984) (citing Solina v. United States, 709 F.2d 160, 163 (2d Cir. 1983) (holding that criminal activity by counsel is per se grounds for new trial)); see also United States v. Fulton, 5 F.3d 605, 609-12 (2d Cir. 1993) (per se reversal of conviction when "the attorney's criminal conduct is related to the charged crime").
These cases reaffirm the courts' independent interest in the integrity of the judicial process. As the Court of Appeals for the Second Circuit wrote in Locascio, when an attorney is an unsworn witness, "the detriment is . . . to the court, since the factfinding process is impaired."Locascio, 6 F.3d at 934 (citing United States v. Cunningham, 672 F.2d 1064, 1074-75 (2d Cir. 1982)).
This court is further guided by New York Code of Professional Responsibility DR 5-102(C), adopted in Local Civil Rule 1.5(b) by the Eastern and Southern Districts of New York. That code provides that a lawyer may not serve as an advocate for a client when "it is obvious that the lawyer ought to be called as a witness on a significant issue on behalf of the client."
III.
The government raises credible allegations that Exhibit B of the affidavit served upon it and provided to the court is fraudulent. Although defendants have not explicitly conceded that the exhibit is fraudulent, Mr. Greenberg's letter of April 9, 2001, acknowledges that his "continuing investigation has undermined our confidence in the validity of the document." The court understands this statement to be defendant's agreement that at the minimum, the charge that the document is fraudulent is credible.
The government has stated that it intends to investigate the origins of Exhibit B and potentially prosecute those parties responsible for any fraud it may represent. A recent decision in this district, United States v. Orgad, 132 F. Supp.2d 107 (E.D.N Y 2001), is on point. In that case, Judge Gleeson disqualified an attorney who was alleged to have been the conduit for the defendant's attempt to influence a witness. Noting that the lawyer was either a potential witness, a potential unsworn witness at trial, or implicated in illegal conduct, Judge Gleeson found that the interests of the adjudicative process would not permit the attorney to participate in the case. See id. at 121-126.
Mr. Greenberg may be in a similarly impossible position. If the government investigates and prosecutes his client, he will be in a position to be called as a witness, and to be an unsworn witness at any judicial proceedings, thereby running afoul of the Locascio rule. In the unlikely event that Mr. Greenberg was aware that Exhibit B was forged, he would have every incentive to prevent this illegal conduct from coming to light, exactly the conflicted representation Cancilla seeks to prevent. The interests of adjudicative integrity require that Mr. Greenberg and his firm be disqualified from representing any of the defendants in this case.
Defendant's new counsel urges in a letter to the court that since Mr. Greenberg seeks only to appear before the court to argue a motion, rather than to represent Hebroni at trial, no witness conflict can exist and thus he should be permitted to appear for that purpose. Defendant cites no legal authority for this proposition, and the court finds this reasoning unpersuasive. This court does not understand the rule requiring disqualification to be a bar solely on representation at trial. Rather, if an attorney or firm is disqualified, he or it is disqualified for the entire case.
To adopt defendant's theory would undermine the rule itself. If an attorney who represents a conflict can appear in court to argue a potentially dispositive motion, this court can see no limiting principle to prevent him from taking depositions, writing and filing motions, or even making opening and closing arguments. None of these activities involves calling witnesses, but all are core activities of legal representation. Allowing a disqualified attorney to continue to represent a client in this way would be an exception that could quickly swallow the rule.
Defendant also asserts in Mr. Silverman's letter of September 21 that she will be prejudiced if Mr. Greenberg is not allowed to argue the motion. Despite defense counsel's protestations of Mr. Greenberg's necessity, the court presumes that Mr. Silverman can argue ably a motion that he himself signed and submitted to this court.
The government's motion to disqualify the law firm of Newman Greenberg from participating in this case is granted. The court understands "participating" to include any appearance in court, the preparation of any legal papers filed with the court, or any correspondence with the court on behalf of any defendants in this case.
So ordered.