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UNITED STATES v. MOSCONY

October 21, 1988

UNITED STATES
v.
JOHN P. MOSCONY and THOMAS L. CULLEN, JR.



The opinion of the court was delivered by: REED JR.

 LOWELL A. REED, JR., UNITED STATES DISTRICT JUDGE

 A federal grand jury has indicted the defendants in this case. The defendants are both presently represented by the law firm of Sprague Higgins & Creamer. The government and three of the government's witnesses, Elizabeth Thiel, Patrizia Napolitano and Rosemary Siermine, have moved to disqualify the Sprague firm from representing either of the defendants. In addition, the three witnesses have moved to prohibit the use of their statements obtained by the firm. I conclude, after a lengthy evidentiary hearing on the motion, careful consideration of the existing law and many hours of deliberation, that the Sprague firm must be disqualified and the witnesses' statements suppressed for the reasons that follow.

 I

 The government advances two grounds in support of its motion for disqualification. First, it asserts that the Sprague firm has an actual conflict of interest because the firm previously represented four of the government's witnesses during the grand jury investigation. Second, the government argues that the joint representation of the defendants by the Sprague firm will likely result in several conflicts of interest. Because I find that I must disqualify the Sprague firm due to its prior representation of the government's witnesses, I do not reach the government's second ground for disqualification.

 A criminal defendant is entitled to a presumption in favor of his counsel of choice. Wheat v. United States, 486 U.S. 153, 108 S. Ct. 1692, 1700, 100 L. Ed. 2d 140 (1988). However, the presumption may be overcome by a showing of either an actual conflict or a serious potential for conflict. Id. Where the judgment of a defendant's attorney in handling a case is actually or is very likely to be tainted or limited by a conflict of interest, disqualification of the attorney may be an appropriate measure. United States v. Flanagan, 679 F.2d 1072, 1076 (3d Cir. 1982), rev. on other grounds, 465 U.S. 259, 104 S. Ct. 1051, 79 L. Ed. 2d 288 (1984).

 Thus, I must determine whether there is an actual conflict, or a serious potential for conflict, involved in the representation of defendants by the Sprague firm. The government's first allegation of conflict stems from the Sprague firm's prior representation of several of the government's witnesses. The government contends, and defense counsel now concedes, *fn1" that the Sprague firm represented three of the government's witnesses, Elizabeth Thiel, Patrizia Napolitano and Rosemary Siermine, during the grand jury investigation of defendants. *fn2" The witnesses, who are former employees of defendant Moscony, allege that they divulged confidential information to the Sprague firm during the course of the representation on the precise matters on which they will be testifying and that questions posed on cross-examination might lead to the disclosure of privileged information to which they would invoke the attorney-client privilege.

 Canon 4 of the Code of Professional Responsibility requires a lawyer to preserve the confidences and secrets of a client. Canon 5 requires a lawyer to exercise independent professional judgment on behalf of a client. A conflict arises between an attorney's duty not to reveal the confidences of a former client and his duty to vigorously represent his present client where confidences revealed by the former client during representation in the same or a substantially related matter would be useful to cross-examine that client when he testifies against the attorney's present client. See e.g., United States v. Provenzano, 620 F.2d 985, 1004-1005 (3d Cir. 1980). Defense counsel denies that any conflict of interest exists between his prior representation of the witnesses and its representation of the defendants. He attempts to distinguish those cases where a conflict was found due to an attorney's prior representation of a government witness arguing that in all such cases the attorney had acquired confidential and incriminating information in the course of the prior representation whereas in this case the prior representation was of an extremely limited nature and the firm did not receive any confidential information from the witnesses during the course of the representation.

 The Third Circuit has held that once an attorney-client relationship has been established, an attorney's access to privileged information must be conclusively presumed. United States v. Provenzano, 620 F.2d at 1005. However, in view of the apparent limited nature of the prior representation in this case, I heard testimony and received evidence on the nature and circumstances of the representation of the witnesses to determine whether confidential information may have been revealed to defense counsel that would involve him in a conflict.

 Each of the witnesses retained their own counsel some time in the fall of 1987. The Sprague firm did not represent any of the witnesses in connection with their subsequent discussions with the government or before the grand jury.

 However, despite the rather limited representation of the witnesses by the Sprague firm, I conclude that confidential information was divulged by Elizabeth Thiel and Patrizia Napolitano in the course of such representation which would very likely be useful to cross-examine them. As I have already noted, Mr. Creamer met with Thiel and Napolitano individually on June 17, 1988. At each of the meetings Creamer asked the witnesses a series of questions and a member of the Sprague firm recorded their answers. Thereafter, Creamer prepared affidavits allegedly based on the information provided by the witnesses which the witnesses signed on July 2, 1988.

 Mr. Creamer characterizes the subject matter of the meetings and the affidavits as mere statements of routine office procedures of Moscony Real Estate and argues therefore that they are not confidential communications between an attorney and his client. The government has not seen either the notes from the meeting between Creamer and the witnesses or the affidavits prepared by Creamer and signed by the witnesses. Mr. Creamer and counsel for the witnesses urged me at the hearing to review the notes and the affidavits in camera. Having done so, I cannot agree with Creamer's characterization of the statements as nonconfidential.

 First, while it is true that many of the statements detail the office procedures at Moscony Real Estate, that does not render the statements nonconfidential where the office procedures of Moscony Real Estate are at the heart of the government's case against the defendants and where the statements were made in the context of a criminal investigation. Second, the statements do not only recite how the witnesses performed their duties but also detail what the witnesses were told or not told to do by the defendants. Moreover, many of the witnesses answers were made in response to leading questions phrased by defense counsel. It does not take much to imagine the usefulness of these statements to impeach the witnesses' testimony against the defendants. Indeed, if the statements were merely insignificant details of routine office procedures as Mr. Creamer characterizes them, I question why Mr. Creamer prepared the affidavits in the first place and refuses to agree not to use them. See T 215-216. Finally, it is undisputed that Creamer ...


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