The opinion of the court was delivered by: TEITELBAUM
The matter presently before this Court involves an investigation being undertaken by grand juries convened within the Western District of Pennsylvania. This investigation concerns possible violations of Title 18, United States Code, Sections 371, 1462, 1465 and 2, relating to the interstate distribution of pornographic and obscene materials.
On February 16, 1977, a search was conducted of premises occupied by the Majestic News Company located at 922 West North Avenue. As a result of this search, a large volume of records maintained by the Majestic News Company were seized, as well as approximately 2,000 allegedly pornographic 8 millimeter or super 8 millimeter films. During the course of the search, several employees of the Majestic News Company were observed on the premises.
Subsequent to this search, a number of persons employed by the Majestic News Company were subpoenaed to appear before a Federal Grand Jury on April 14, 1977. These individuals were Gregory Kocan,
Phyllis Johns, Richard Jenkins, John Halas, Glenn Gossard and James Johns. During their appearance before the Grand Jury, each of the above witnesses were represented by Burton Sandler, Esquire and Carl M. Janavitz, Esquire. Thereafter, Richard Thompson and James Calderone, additional employees of the Majestic News Company, and Ben Nabors, an employee of a book store located in Wheeling, West Virginia, were brought before the Grand Jury. Thompson, Calderone and Nabors were all represented by Mr. Janavitz and Thompson and Calderone were additionally represented by Mr. Sandler.
In total, Mr. Sandler represented ten clients while Mr. Janavitz represented eleven clients.
On April 28, 1977, Phyllis Johns was scheduled to appear before the Grand Jury in order to answer questions under a grant of statutory use immunity.
After each individual question, Mrs. Johns left the Grand Jury room whereupon Mr. Janavitz would tape record each question.
During some of the periods that Mrs. Johns left the Grand Jury room to record each question, Mr. Gregory Kocan, a "target" of the investigation, was observed to be standing close by.
The obvious purpose of recording each question addressed to Mrs. Johns was to better enable Mr. Janavitz and Mr. Sandler to represent their respective clients.
A hearing on the above motion was held before this Court on June 20, and 21, 1977. At this hearing each of Mr. Sandler's and Mr. Janavitz's clients were instructed by this Court that the multiple representation involved might result in a conflict of interest on the part of counsel and might be disadvantageous to the client's right to unfettered representation. Each client responded that they still desired to be represented by Mr. Janavitz and/or Mr. Sandler.
During the course of the hearing, a formal offer of non-prosecution was made by the government to Phyllis Johns,
Richard Thompson, Ben Nabors, Kelsie Lanning and James Johns.
Subsequently, Mr. Janavitz and/or Mr. Sandler filed a motion for withdrawal of representation of Grand Jury witnesses Richard Thompson, Ben Nabors, Kelsie Lanning and James Johns. Said motion was granted by Order of this Court on June 28, 1977.
The issue presented for our determination is whether or not Mr. Sandler and Mr. Janavitz should be disqualified from representing Grand Jury witnesses Phyllis Johns, Gregory Kocan, Richard Jenkins, John Halas, Glen Gossard, James Calderone and Jerry Barnhouse during the Grand Jury proceedings.
The resolution of this inquiry requires an accommodation between the right to counsel of one's own choosing and the individual's right to meaningful legal representation.
The Sixth Amendment of the United States Constitution guarantees that every individual has the right to effective assistance of counsel. A penumbra of this Sixth Amendment right is the right to retain counsel of one's own choosing. The right to choose one's own counsel, however, is not absolute. Cf. United States v. Garafola, 428 F. Supp. 620, 626 (D. N.J. 1977). As stated in Matter of Grand Jury Empaneled January 21, 1975, 536 F.2d 1009, 1012 (3d Cir. 1976): "the government may obtain, in appropriate circumstances, judicial interference with private arrangements for multiple legal representation of witnesses called to testify before a grand jury . . . ."
Recognizing that the right to choose one's counsel is not absolute, the issue arises whether there is a conflict of interest in Mr. Janavitz's and Mr. Sandler's (hereinafter ...