which he claims an attorney client privilege in any cross-examination of him concluded by Attorney Ambrose.
The Witness Grassi
Grassi is a city police officer who is a critical prosecution witness on the voluntary nature of Esper's cooperation, particularly in the matter of wearing a body recorder in meetings with the defendant. Grassi claims that he consulted Attorney Ambrose in 1981 regarding possible representation in a gambling investigation. Attorney Ambrose admits that he had two consultations in sufficient depth to determine the cost of representation. Attorney Ambrose states that as a result of the conferences he did nothing other than advise Grassi not to make any statements and/or comments to anyone. There is nothing to indicate that any prosecution ensued.
Both witnesses have informed the United States Attorney that they provided privileged information to Attorney Ambrose during their consultations which Attorney Ambrose could use against them during the course of cross-examination.
Neither the court nor the United States Attorney is aware of the contents of the privileged communication, nor can we compel its disclosure.
Attorney Ambrose asserts that he has cross-examined both Esper and Grassi extensively in the state court pretrial proceedings and no claim of privilege was raised. We note that most of the state court proceedings involved the multiple burglary charges. While there was a state court proceeding to remove Attorney Ambrose, which was denied, there is no evidence before us that either of the witnesses waived the privilege nor that they were ever advised that they could still exert the privilege despite the court's denial of the motion to remove counsel.
Attorney Ambrose argues that he only represented Esper one time, in the 1978 bad check charge, and that the other events do not establish an attorney-client relationship. We think otherwise. We believe that any communication from a prospective client to an attorney at law with regard to prospective representation or to secure advice, even with regard to the probable cost of such representation, is privileged.
Waiver by Defendant
Defense counsel states that defendant will waive the conflict. We are confident that there is no way in which defendant can make a valid waiver of the potential conflict. A judge can never fully explain to a defendant all of the permutations and combinations of circumstances of the evidence to be presented; he is unaware of the details of the case, nor can he know the facts or inferences to be drawn therefrom. He is unaware of the strategy of the government and defense and he cannot inquire into the defense either in open court or in camera. The trial judge, therefore, cannot adequately advise the defendant. See United States v. Garafola, 428 F. Supp. 620 (D. N.J. 1977); United States v. Dolan, 570 F.2d 1177 (3d Cir. 1978).
A waiver of a constitutional right must be made knowingly, intelligently, and with a full awareness of the likely consequences of the waiver; Johnson v. Zerbst, 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938); Brady v. United States, 397 U.S. 742, 25 L. Ed. 2d 747, 90 S. Ct. 1463 (1970). The right to effective assistance of counsel is too fundamental to allow courts to indulge in speculation as to the amount of prejudice involved. Glasser v. United States, 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457 (1942).
In Glasser the defendant was an experienced trial lawyer who had served four years as an Assistant United States Attorney prosecuting criminal cases. Nevertheless the court found no valid waiver of his rights. As one commentator has noted, "In view of the conclusion in Glasser, it is difficult to imagine a case in which a waiver would be invulnerable to challenge. Geer: Representation of Multiple Defendants, 62 Minn. L.R. 119, 141 (1978).
We find that an effective waiver by defendant would be impossible to obtain.
We are well aware that Attorney Ambrose is an exceptionally able trial counsel and that he has spent over three years in the representation of this client in the state court and in this court. He is very well prepared with respect to all of the intricacies of the case, although the present federal charge represents only one rather isolated incident among the series of events involved in the state charge.
This factor weighs on the side of defendant's chief argument, the right to representation by counsel of one's own choice, a right of constitutional dimensions. United States v. Rankin, 779 F.2d 956 (3d Cir. 1986).
In United States v. Dolan, 570 F.2d 1177 (3d Cir. 1978), the court stated that "although the right to counsel is absolute, there is no right to a particular counsel," p. 1182; and, "the sixth amendment should not be interpreted to allow a defendant to sanction a lawyer's breach of ethical duties, when such duties serve the public interest as well as the client's." P. 1183.
Most of the decided cases deal with counsel's representation or former representation of co-defendants, and in particular co-defendants who become government witnesses. Furthermore, they are mostly concerned with post trial applications of convicted defendants for relief where the courts have noted that the representation was questionable but have denied the relief because of a failure to show prejudice, Cuyler v. Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980). But if defendant shows that a conflict of interest actually affected his representation, he need not demonstrate prejudice to obtain relief, the conflict itself demonstrating the denial of a right to have effective assistance of counsel. United States v. Dolan, supra, p. 1184.
Once actual conflict of interest is shown, a showing of prejudice is not necessary. United States v. Alvarez, 580 F.2d 1251 (5th Cir. 1978).
In Dolan, supra, the trial court had found that Dolan's lawyer could not effectively cross-examine his former client, Garofola, -- now an important prosecution witness-without intruding into matters protected by the attorney client privilege. The trial court found that there is, in fact, a conflict of interest. The Court of Appeals held that where a trial court finds an actual conflict which impairs the ability of a criminal defendant's chosen counsel to conform to the ABA Code of Professional Responsibility, the court should not be required to tolerate an inadequate representation of defendant.
Such representation not only creates a breach of professional ethics and invites disrespect for the integrity of the court, but it is also detrimental to the independent interest of the trial judge to be free from future attacks over the adequacy of the waiver or the fairness of the proceedings in his own court and the subtle problems implicating the defendants comprehension of the waiver.
570 F.2d 1177, at 1184.
In those cases involving multiple representation or prior representation of co-defendants, the issue is clearer. Here defendant's counsel represented critical government witnesses in prior and apparently unrelated matters. With respect to Esper, except for his early cooperation and services as an informant he might well have been a co-defendant.
The credibility of these witnesses will be under attack and we are informed that the government relies heavily on their testimony. Those witnesses have served warning that they will claim the attorney client privilege with respect to questions posed to them by defense counsel on the witness stand. In such a situation the interests of justice could be frustrated on both sides; the public interest in a fair trial, and the defendant's interest if defense counsel is unable to cross examine two of the government's critical witnesses.
If this does not constitute an actual conflict of interest, it certainly reveals the potential for conflict. As in United States ex rel. Williamson v. LaVallee, 282 F. Supp. 968, the court noted that it could not determine whether prejudice ensued but that cross-examination of the witness might be impeded by the fact that the attorney had learned confidential information from his client-witness which could not be revealed, and therefore the conflict was apparent.
We conclude therefore that the appearance of conflict and the potential for conflict are sufficient to require the removal of counsel and we will so order.
Because we believe that orders disqualifying counsel are immediately appealable (see, United States v. Cunningham, 672 F.2d 1064 (2nd Cir. 1982)), we will delay consideration of the other pending pre-trial motions until the appearance of new counsel is entered or until notice of appeal is filed and the matter is determined on appeal. We request counsel, in the event of appeal, to ask for expedited consideration of any appeal because the delays in the prior state prosecution have generated a substantial body of public criticism of the system of justice.
And now this 2nd day of September, 1986, the motion of the United States to disqualify defendant's counsel is GRANTED, and Leonard G. Ambrose III Esq. is hereby disqualified from acting as defense counsel in this prosecution.
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