Machinery Corp., 89 F. Supp. 357, 358 (D. Mass. 1950). Similarly, when two persons accused of a joint criminal undertaking meet with an attorney representing both, the presence of one client should not affect the other client's right to confidentiality. Accordingly, individuals who are alleged to have been involved together in criminal activity must be able to seek legal advice and speak freely with counsel without fear that their disclosures will be used against them in subsequent proceedings.
Jones' presence at the meeting with Krotzer and Worth on September 29, 1982 does not destroy the confidential nature of the meeting and the information disclosed to Worth. Krotzer and Jones each believed that the other was an essential party to this meeting because the subject of the meeting related to their joint activity. Jones and Krotzer had known each other for many years. Krotzer worked for Jones at Jones' Truck Sales for several years prior to his arrest. The allegations in the state complaint related to Krotzer's and Jones' business activities. Although he had not been arrested on state charges at that time, Jones was named as a co-conspirator in the state charges filed against Krotzer. It is apparent that Jones and Krotzer believed themselves to be implicated together in the events. The present federal indictment of Jones refers to one of the same vehicles which formed the basis of the state charges against Krotzer. Additionally, Jones stated that he had an interest in two of the trucks impounded as a result of Krotzer's arrest. The circumstances of the first preliminary hearing also demonstrate that all parties believed that Jones and Krotzer were implicated together, and were presenting one defense. Jones accompanied Krotzer to the state preliminary hearing, at which Worth acted as if both Krotzer and Jones were his clients. By his cross-examination of the witnesses he not only protected Krotzer's interests, but Worth also challenged testimony which appeared to implicate Jones.
Additionally, Jones and Krotzer each understood that Worth was representing both of them. Krotzer knew Worth was Jones' attorney. Jones had arranged for Worth to represent Krotzer. Jones advised Krotzer what to do if he was arrested and how to handle his defense. Krotzer believed that Worth was his attorney and would protect his interests. He also expected that the disclosures made would not be revealed to anyone not present at the meeting. I conclude that a confidential relationship existed between Worth and Krotzer.
The defendant also contends that Krotzer disclosed no confidential information to Worth. Upon Worth's initial questions to Krotzer at the meeting on September 29, 1982, Krotzer told Worth that he had knowledge of the allegations contained in the complaint regarding one of the automobiles, a white Lincoln. Following this statement, Krotzer permitted Jones to respond to Worth's questions and communicated to Worth his assent to Jones' responses. This conduct by Krotzer constitutes confidential communications to Worth.
In United States v. Flanagan, 679 F.2d 1072 (3d Cir. 1982), cert. granted, 459 U.S. 1101, 103 S. Ct. 721, 74 L. Ed. 2d 948 (1983), our court of appeals held that where an actual conflict of interest is very likely to materialize, disqualification of defense counsel is an appropriate measure. Id. at 1076. While Flanagan involved the joint representation of co-defendants by one firm, I believe that the facts of this case are analogous to those in Flanagan. In this case Worth has, in effect, represented two persons allegedly involved in a joint undertaking which has resulted in criminal charges. Even though Jones had not been formally charged by the state, he was named as a co-conspirator throughout the state charges against Krotzer. Those state charges are very closely related to the federal charges now pending against Jones.
I am gravely concerned that a conflict of interest is very likely to arise in this case, either at trial or before trial during plea bargaining, because of Worth's representation of Krotzer. Because a conflict is very likely to materialize during these proceedings, Worth must be disqualified as Jones' attorney. The fact that Krotzer subsequently retained other counsel does not preclude Worth's disqualification. A serious potential for conflict is still present. See United States v. Garafola, 428 F. Supp. 620, 622-23 (D.N.J. 1977), aff'd sub nom. United States v. Dolan, 570 F.2d 1177 (3d Cir. 1978). The government has stated that it intends to call Krotzer as a government witness at trial. Because of his employment by Jones, his alleged involvement in the events and his knowledge of the items contained in the charges, Krotzer will be an important government witness in its trial against Jones. It appears to me that Worth cannot effectively cross-examine Krotzer in light of their prior confidential relationship. Mr. Worth cannot ask Krotzer questions on cross-examination regarding any of the confidential disclosures he made during Krotzer's meeting with Jones and Worth on September 28, 1982 without touching upon matters protected by the attorney-client privilege. As his testimony at the hearing demonstrated, Krotzer is likely to testify to facts different from those related to Worth by Krotzer and Jones at the meeting on September 28, 1982. While Krotzer now states that he believed the information provided by Jones at the meeting to be false, he did not tell Worth this. Krotzer now explains that his failure to disagree with Jones was based upon alleged prior warnings from Jones and a threatening look by Jones at the meeting. Worth would be faced with a former client testifying to facts inconsistent with those disclosed to him in a confidential communication. Worth would be tempted to use the prior inconsistent statements made by Krotzer when he assented to Jones statements at the meeting to impeach Krotzer, in an effort to zealously defend Jones. It is also possible that Worth, aware of his obligation to his former client, would overcompensate and be less than zealous in his cross-examination of Krotzer thereby denying Jones his sixth amendment right to effective assistance of counsel. See, United States v. Garafola, 428 F. Supp. 620 (D.N.J. 1977), aff'd sub nom. United States v. Dolan, 570 F.2d 1177 (3d Cir. 1978).
Despite Jones' present desire to have Worth represent him at this criminal trial, Jones, if convicted, may later become dissatisfied with Worth's representation and move for a new trial, alleging he was denied effective assistance of counsel. If Worth were permitted to continue as Jones' counsel, any plea agreement reached with the government might also be vulnerable to a subsequent attack by Jones on the same grounds. Jones could challenge any such agreement on the ground that it was the result of possible pressure on Jones or Worth to plead guilty rather than go to trial, at which a conflict of interest would crystallize.
My decision does not abrogate Jones' sixth amendment rights. While the sixth amendment grants a criminal defendant the unqualified right to assistance of counsel, it does not provide him with an absolute right to the counsel of his choice. Davis v. Stamler, 650 F.2d 477 (3d Cir. 1981). A criminal defendant's right to be represented by the counsel of his choice must be balanced against the public's interest in a fair criminal proceeding, free from future attacks. See United States v. Flanagan, 527 F. Supp. 902, 906 (E.D. Pa. 1981), aff'd, 679 F.2d 1072 (3d Cir. 1982), cert. granted, 459 U.S. 1101, 103 S. Ct. 721, 74 L. Ed. 2d 948 (1983). This is not a case in which the nature of the conflict is highly speculative. I have carefully considered the circumstances of this case and find that an actual conflict of interest is very likely to arise before the end of the defendant's trial. The sixth amendment guarantees all criminal defendants "the assistance of counsel for his defense." Such assistance must be "untrammeled and unimpaired." Glasser v. United States, 315 U.S. 60, 70, 62 S. Ct. 457, 86 L. Ed. 680 (1942). If Worth continued to represent the defendant, it is likely that a conflict of interest would arise during the trial proceedings, and therefore the defendant would not receive independent assistance of counsel as required by the sixth amendment.
For the reasons stated above, I concluded that Worth's continued representation of Jones is very likely to lead to an actual conflict of interest in this case. Worth must, therefore, be disqualified from representing the defendant. Accordingly, I granted the government's motion.
© 1992-2004 VersusLaw Inc.