judgment of acquittal entered June 15, 1994) (Vanaskie, J.).
Clare Stansfield is cooperating with the government, and is expected to testify at trial against defendant. He previously testified before the grand jury which returned the indictment. The government summarizes Clare Stansfield's testimony as follows: "The defendant's brother, Clare Stansfield, is one of the most important government witnesses in this case. The government expects Clare Stansfield to testify to the defendant's whereabouts on the night of the arson and that the defendant admitted to Clare that he and Dee Hoffman were responsible for the crime." Brief in Support of Government's Motion for Disqualification of Counsel at 4. Although defendant complains that he has no way of knowing that Clare Stansfield would testify as proffered by the government, the court's in camera review of the transcript of Clare Stansfield's testimony before the grand jury indicates that the government accurately represents the proffered testimony.
In its cover letter accompanying the transcript of grand jury testimony, the government adds the fact that defendant's current counsel, Attorney Foster, represented Clare Stansfield in a retrial on armed robbery charges in 1984. Defense counsel agreed to the manner in which this matter was presented to the court.
The conflicts of interest cited by the government, then, are: (1) the knowledge of and participation in the events surrounding the fraud allegedly perpetrated by defendant on the part of Attorney Fields; and (2) past and present representation of a cooperating government witness by members of the same firm which represents defendant.
II. INITIAL MATTERS
The government's motion to disqualify defense counsel states that it is brought pursuant to Fed. R. Crim. P. 44(c). Defendant points out that Rule 44(c) relates to joint representation of multiple defendants. Brief in Opposition to Motion for Disqualification of Counsel at 1 n. 1. The misstatement of the basis for the motion is of no moment; a district court has an institutional interest in the enforcement of ethical rules governing the legal profession in order to protect the truth-seeking function and the fairness of the proceedings, to ensure the adequacy of legal representation and privacy of lawyer/client communications, and to protect a fairly rendered verdict from trial tactics designed to generate issues for appeal. United States v. Moscony, 927 F.2d 742, 749-750 (3d Cir.), cert. denied, 501 U.S. 1211, 115 L. Ed. 2d 984, 111 S. Ct. 2812, reh'g denied, 501 U.S. 1270, 115 L. Ed. 2d 1100, 112 S. Ct. 16 (1991). The court's inherent authority to control the proceedings before it is sufficient basis for the government's motion.
Both defendant (as "Defendant/Intervenor") and Attorney Fields have filed motions to quash the subpoena of Attorney Fields (record document nos. 25, 26). A brief in support of defendant's motion was not filed, though a brief in support of Attorney Fields' motion was filed. An "answer" to the motion was filed by "the defense" (see Answer to Motion at 2, "Wherefore" clause), and signed by William C. Costopoulos, Esquire, Attorney Foster, and Attorney Fields, apparently all on behalf of the firm. The brief in opposition to the government's motion for disqualification of defense counsel is signed by the same three attorneys, and its caption indicates that it is filed on behalf of Attorney Fields and Costopoulos, Foster & Fields. Since each of the documents seeking to quash the subpoena and opposing the government's motion set forth the same basic arguments, the court will construe each as having been filed on behalf of defendant, Costopoulos, Foster & Fields, and the individual attorneys involved.
IV. STANDARDS GOVERNING DISQUALIFICATION
The standard by which a district court must review a motion to disqualify counsel is set forth in Moscony, supra. The Sixth Amendment guarantees to every criminal defendant the right to effective assistance of counsel and the correlative right to counsel free from conflict of interest. Moscony, 927 F.2d at 748 (quoting United States v. Gambino, 864 F.2d 1064, 1069 (3d Cir. 1988) (further citation omitted), cert. denied, 492 U.S. 906, 106 L. Ed. 2d 566, 109 S. Ct. 3215 (1989)). There also is a presumptive right on the part of a criminal defendant to counsel of choice, a critical aspect of the defense since the defendant suffers the consequences of a failed defense. Id. (quoting Powell v. Alabama, 287 U.S. 45, 53, 77 L. Ed. 158, 53 S. Ct. 55 (1932); Faretta v. California, 422 U.S. 806, 820, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975); Wheat v. United States, 486 U.S. 153, 166, 100 L. Ed. 2d 140, 108 S. Ct. 1692 (1988) (Marshall, J., dissenting)).
With these constitutional rights must be considered the duty on the part of an attorney not to reveal confidential communications with the client. Id. Although technically an ethical duty to be obeyed by counsel, this duty in a sense creates a right on the part of the client not to have confidential communications revealed; that is, the ethical duty "complements, but is distinct from, the attorney-client privilege which is a right belonging to the client ..." Moscony, 927 F.2d at 748 and n. 1.
"The unenviable duty of reconciling these various rights and duties ... devolve[s] upon the district court." Moscony, 927 F.2d at 749. The rights and duties outlined above come into serious conflict when a defendant seeks to waive the right to conflict-free counsel and proceed with counsel of choice, particularly when the conflict involves past or present representation by counsel of a co-defendant, co-conspirator, or government witness. Id.
Although a defendant may waive the right to conflict-free counsel, the court may refuse the waiver. Moscony, 927 F.2d at 749-750. The court's authority to refuse the waiver extends to situations in which there is a showing of a serious potential for a conflict of interest as well as to situations in which there is an actual conflict of interest. Moscony, 927 F.2d at 750 (citations omitted). In deciding to refuse a waiver of conflict-free counsel, the court considers: (1) the court's institutional interest in protecting the truth-seeking function of the proceedings; (2) the defendant's right to effective assistance of counsel, regardless of the proffered waiver; (3) protection of attorney-client communications, and the candor between counsel and client such protection engenders; (4) promotion of respect for the court in general through enforcement of ethical rules; and (5) protection of a fairly rendered verdict from trial tactics designed to generate issues for appeal. Moscony, 927 F.2d at 749.
It should be noted that, in considering factor number (3), the protected communications are more than those of the defendant; if the attorney has represented or is representing a co-defendant, co-conspirator, or witness, the privacy of the communications with the second client also must be taken into consideration. See, e.g., Moscony, 927 F.2d at 750 (former representation of government witnesses). An attorney who cross-examines former clients inherently has divided loyalties. Id. (citations omitted).
V. RULES OF PROFESSIONAL RESPONSIBILITY
In reviewing whether there is an actual or potential conflict of interest, several ethical rules are applicable. "The Rules of Professional Conduct adopted by this court are the Rules of Professional Conduct adopted by the Supreme Court of Pennsylvania, except Rule 3.10, as amended from time to time by that court, unless specifically excepted in this court's rules." Local Rule for the Middle District of Pennsylvania 304.2.
The first of these ethical rules deals with confidentiality:
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, ...