of its Bar constitutionally prohibit a witness from being represented by the attorney of his choice when that attorney has been prepaid for representing the witness by the subject of the investigation?
It is our opinion that under the circumstances of this case the conduct of defendant Stewart in moving for the disqualification of plaintiff Kremer and the conduct of defendant, The Honorable Kendall H. Shoyer, in disqualifying him was reasonable and did not constitute a deprivation of plaintiff Kremer's constitutional rights. Certainly the defendants were justified in noting the appearance of a conflict of interest, even if one did not exist in fact. The fact that plaintiff Frohlich may have waived this conflict of interest does not satisfy the court's and the prosecutor's desire to get all the facts without any obstructions by the attorney under investigation, to maintain the confidentiality of the investigation, and to keep the investigation free from the appearance of conflicts of interest. The courts have recognized that a criminal defendant can be deprived of the right to the attorney of his choice if that choice is not properly exercised, United States v. Hampton, 457 F.2d 299 (7th Cir. 1972); Raullerson v. Patterson, 272 F. Supp. 495 (D. Colo. 1967), or when the exercise of that choice would defeat the ability of the court to control its docket, United States ex rel. Carey v. Rundle, 409 F.2d 1210 (3rd Cir. 1969), cert. denied 397 U.S. 946, 25 L. Ed. 2d 127, 90 S. Ct. 964 (1970). Certainly the efficacy and the propriety of a judicial investigation into the ethics of the Bar is as important a state interest as timeliness or control of the court's calendar. The interest of the state courts in regulating the professional conduct of the Bar has been recognized as a substantial one by the federal courts; "state courts have traditionally been allowed wide discretion in the establishment and application of standards of professional conduct and moral character to be observed by their court officers." Erdmann v. Stevens, 458 F.2d 1205, 1210 (2d Cir.), cert. denied 409 U.S. 889, 34 L. Ed. 2d 147, 93 S. Ct. 126 (1972).
However, there are additional constitutional considerations involved in plaintiff Frohlich's claim. Although plaintiff Frohlich was not subjected to an unconstitutional deprivation of counsel by the conduct of defendants Stewart or Shoyer, their actions may have infringed his Fifth Amendment right against self-incrimination. This is not to say that Frohlich should have been allowed to stymie the investigation by insisting that he be represented by Kremer; however, certain precautions should have been taken by the defendants before Frohlich was questioned without an attorney. The most prominent of any such precautions would seem to be a statement to Frohlich that he had the right not to answer any questions he felt might tend to incriminate him as well as a description of any areas to be covered in the investigation which might conceivably lead to information which might jeopardize him. Of course defendants assert that no areas of the investigation involved a danger of self-incrimination to Frohlich, but this assertion is fervently contested by plaintiffs. By stating the above, we do not mean to say that Frohlich was questioned without adequate warning, for we are ignorant of the circumstances of the November, 1973 questioning of Frohlich, even to the point of whether or not he had an attorney. We are merely stating that we lack the facts to enter summary judgment against plaintiff Frohlich on this ground. Summary judgment seems particularly inappropriate, where, as here, plaintiffs allege that defendant Stewart stated in the presence of Frohlich that it was improper, unethical and an obstruction of the investigation for plaintiff Kremer to advise his clients to take the Fifth Amendment, an allegation which remains uncontradicted by defendants.
The Court finds no merit in plaintiffs' contentions that the judicial investigation itself, by amalgamating judicial and prosecutorial functions, violates due process or that the rights preserved to plaintiffs by the Seventh, Tenth, or Fourteenth Amendments have been violated.
AND NOW, to wit, this 29th day of May, 1974, the motion of the Honorable Kendall H. Shoyer, defendant in the above captioned action, to dismiss the complaint against him on the grounds of mootness is hereby GRANTED. The motions of the Honorable D. Donald Jamieson and William Stewart, defendants in the above captioned action, for summary judgment is hereby GRANTED as to plaintiff I. Raymond Kremer and DENIED as to plaintiff Eugene Frohlich.
AND IT IS SO ORDERED.
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