FMC's decision to make such a waiver of effective assistance of counsel. I am satisfied that Mr. Tower has made this waiver on the part of the corporation with a full understanding of its possible ramifications. Thus, given the absence of disclosure of confidential information by Messrs. Roseberry, Carroll, Epley and Kliever, the waiver made by them, the waiver made by FMC and my analysis of the relevant case law, I find that the Sixth Amendment does not require disqualification of the Schnader firm as counsel for FMC.
The opinions cited by the government are generally inapplicable to an analysis of the issues raised by this motion. First, the government's reliance on the decision in U. S. v. Dolan, 570 F.2d 1177 (3d Cir. 1978), is misplaced. The facts of the Dolan case are so dissimilar to those found in this case that the decision's applicability to the matter at hand is very limited. In Dolan, co-defendants John Dolan and Michael Garofolo retained one attorney to represent them on charges of unlawful possession of chattels stolen from foreign commerce. On the eve of trial, their attorney asked the prosecutor if he would dismiss the charges against Dolan in exchange for Garofolo's guilty plea. The attorney, however, did not apprise Mr. Garofolo of his proposal. Although the government rejected the "deal", the next day Garofolo pleaded guilty. The trial judge conducted a hearing,
questioning Garofolo and his attorney about possible prejudice resulting from the joint representation. Garofolo's guilty plea was accepted, and Dolan went to trial. Testifying on his own behalf, Dolan stated that Garofolo was the force behind the criminal scheme and that he, Dolan, had believed the operation to be lawful. The government then subpoenaed Garofolo as a rebuttal witness. The judge asked the attorney how he possibly could give legal advice to Garofolo or cross-examine him while he continued to represent Dolan. Although the attorney maintained that no conflict of interest existed, the judge ordered him to withdraw from representation of either Garofolo or Dolan. Dolan, persisting in his desire to have that lawyer represent him, appealed the order.
On review, the Third Circuit, affirming the order of the district court, held that a court need not accept a defendant's waiver of effective assistance of counsel when there is an actual conflict of interest which "impairs the ability of a criminal defendant's chosen counsel to conform with the ABA Code of Professional Responsibility." 570 F.2d at 1184. However, the case now before me does not involve joint and concurrent representation of criminal co-defendants nor does it involve the kind of conduct exhibited by the defense attorney in Dolan, supra. Indeed, the evidence shows that the Schnader firm did not acquire any confidential information from its former representation of the four potential government witnesses. Accordingly, the holding of U. S. v. Dolan, supra, is not controlling as to the issues raised by the instant motion where there is no evidence of an actual conflict of interest.
Citing the decision in Westinghouse Electric Corp. v. Gulf Oil Corp., 588 F.2d 221 (7th Cir. 1978), the government also argues that a client may not consent to the breach of the attorney-client relationship if as a result confidential information will be used against him by his attorney. The holding of the Westinghouse case is not as broad as the government has stated it to be. The Westinghouse suit involved an antitrust action for alleged price-fixing against various uranium producers. Gulf Oil Corporation, one of the defendants, moved for the disqualification of a Santa Fe, New Mexico law firm who represented another defendant, United Nuclear Corporation (UNC) but who had formerly represented Gulf. Because UNC was attempting to exculpate itself by inculpating Gulf, the interests of Gulf and UNC were adverse. After overturning the lower court's denial of the motion to disqualify, which had been based on a finding that there was not a substantial relationship between the subject matter of the two representations, the Court of Appeals addressed UNC's argument that Gulf had waived any right it might have to seek disqualification. The Seventh Circuit rejected UNC's argument both because they apparently disbelieved UNC's description of the nature of the waiver supposedly obtained from Gulf and because any such waiver was acquired prior to any threat of disclosure or adverse litigation. 588 F.2d at 229.
Although it is true that in the Westinghouse decision the Seventh Circuit, in dicta, did express doubt about the permissibility of a client authorizing an attorney to use against him any confidential information given to the attorney, the holding of the case is very narrow. The Court stated:
. . . we hold that a simple consent by a client to representation of an adverse party is not a defense to that former client's motion for disqualification, such as the one under review here, based on the possibility that confidential information will be used against the former client. Id.
Since the case now before me does not involve either a general waiver given some time before litigation, a potential use of confidential information against a former client or an action by the supposedly waiving party to disqualify an opponent's lawyer, both the facts and the holding of Westinghouse, supra, have minimal relevance to an analysis of the questions raised by the instant motion.
The government further argues that any waiver by the four potential government witnesses in this case is not valid because as employees of FMC they cannot but feel coerced by the desire of their employer that they waive. In support of this theory, the government cites In Re Grand Jury Investigation, 436 F. Supp. 818 (W.D.Pa.1977). In that case, the district court granted in part a motion filed by the government to disqualify counsel. The United States Attorney for Pittsburgh sought to disqualify, on the basis of conflict of interest, two lawyers who were representing eleven people who had been called as witnesses before a grand jury investigating the interstate distribution of pornographic and obscene material. One of these witnesses had been given statutory use immunity as well as an offer of non-prosecution. Although she agreed to waive her right to conflict-free assistance of counsel, the trial court found that her waiver was not knowing and intelligent as required by the standards set forth in Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938) and Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970).
The court's decision in In Re Grand Jury Proceedings, supra, was based in part on the fact that one of the other witnesses, who was a "target" of the investigation and a prospective defendant, was this witness' employer. The court noted that her waiver was likely a result of her "natural hesitancy to alienate (her) employer." 436 F. Supp. at 821. However, the decision was also based on the court's belief that a lawyer cannot effectively represent a person who is operating under a grant of statutory use immunity and another who is a prospective defendant who might be hurt by the testimony of the witness who has been granted immunity. The case at bar does not present such a conflict. Interestingly, the court in In Re Grand Jury Proceedings, supra, declined to adopt a per se rule about joint representation of an employer and employee and specifically stated that it's decision was limited to the facts sub judice. 436 F. Supp. at 822.
The case law most relevant to the instant motion is that dealing with the potential conflict of interest created when counsel for a criminal defendant is required to cross-examine a government witness who is a former client of that attorney. In United States v. Jeffers, the Seventh Circuit noted that in cases involving an alleged conflict of interest based on the prior representation of a prosecution witness by defense counsel the courts have generally examined the particular circumstances to determine if counsel's "undivided loyalties" lie with her current client. 520 F.2d 1256, 1264 (7th Cir. 1975). Judge (now Justice) Stevens found that there are two factors to be considered in making such a determination. First, is the lawyer's pecuniary interest in possible future business likely to cause her to be less vigorous in her cross-examination of the witness who is a former client? Secondly, will any confidential information received by the defense counsel from her former client who is now a government witness be relevant to the cross-examination of that witness?
In the instant case, there is no evidence that the pecuniary interest of the Schnader law firm lies other than with its present client, FMC. The second part of the Jeffers standard is easily assessed in this case. Both Schnader and the four potential government witnesses maintain that no confidential information passed to the law firm from these former clients. Absent evidence to the contrary, I accept their characterization of their attorney-client relationships. The following observation made by Judge Stevens in the Jeffers case is relevant to this case:
Most obviously, there might be a temptation to use (confidential) information to impeach the former client. We do not regard this risk as serious, however, for we think the courts can generally rely on the sound discretion of members of the bar to treat privileged information with appropriate respect. Moreover, in cases in which this concern does seem significant, it is the witness, rather than the defendant, who should object to the cross-examination by his former attorney. 520 F.2d at 1265.