United States District Court, M.D. Pennsylvania
D. MARIAN UNITED STATES DISTRICT JUDGE.
before the Court is the Government's Motion to Disqualify
Attorney Murdoch Walker as Counsel for Defendant. (Doc. 14).
Defendant, Donald Royce, is charged with one count of mail
fraud in violation of 18 U.S.C. § 1341 and eight counts
of aiding in the preparation of false income tax returns in
violation of 26 U.S.C. § 7206(2). (Doc. 1). On May 30,
2017, pursuant to Local Rule 18.104.22.168, Attorney Walker
petitioned for special admission to practice before this
Court. (Doc. 7). On June 2, 2017, this Court granted Attorney
Walker leave to appear pro hac vice so that he could
represent Defendant Royce. (Doc. 8). Subsequently, Attorney
Christopher Powell also entered his appearance on behalf of
Defendant Royce. (Doc. 11). On June 29, 2017, the Government
moved to Disqualify Attorney Walker on the basis that he also
represents Defendant Royce's wife, Heather Royce. (Doc.
14). Attorney Walker opposes this Motion. (Doc. 15). For the
reasons that follow, this Court will grant the
Government's Motion and disqualify Attorney Walker as
counsel for Defendant Royce.
2014, after selling his tax preparation business, Defendant
Royce allegedly obtained a list of clients from another tax
preparer and prepared 2013 tax returns for several
individuals. (Doc. 1 at ¶ 2). According to the
Government, Defendant Royce completed and returned accurate
tax returns to his clients but then altered the returns and,
using Ms. Royce's Electronic Filing Identification
Number, filed the fraudulent tax returns with the Internal
Revenue Service. (Id. at ¶¶ 3-4; Doc. 14-1
at 1-2). The net result was that Defendant allegedly (1)
inflated some of his clients' tax refunds and kept the
proceeds and (2) had other clients pay him the taxes they
owed, kept the money, and then submitted tax returns
indicating that the clients owed no taxes. (Doc. 1 at
2015, the Internal Revenue Service began investigating
Defendant Royce. (Doc. 14-1 at 1). At some point in time, the
investigation expanded to include Ms. Royce. (Id. at
7; Doc. 15 at 3-4). On April 22, 2016, Ms. Royce retained
Attorney Walker to represent her. (Doc. 15 at 1). By that
time, Defendant Royce was already being represented by a
California based law firm. (Id. at 1-2). On June 3,
2016, Ms. Royce, accompanied by Attorney Walker, was
interviewed by the Assistant United States Attorney assigned
to this case. (Id. at 2-3). During the interview,
Ms. Royce told the Government that she knew nothing about
fraudulent tax returns, that Defendant Royce was mentally
incapacitated at the time the tax returns were filed, and
that Defendant Royce remains mentally incapacitated.
(Id. at 3; Doc. 14-1 at 2-3).
March of 2017, Ms. Royce expressed to Attorney Walker that
she did not believe that Defendant Royce's attorneys were
adequately representing him and asked if she could retain
Attorney Walker on her husband's behalf. (Doc. 15 at 4).
After talking with the Government and making his own
determination that there was no conflict of interest in
representing both Defendant Royce and Ms. Royce, Attorney
Walker began representing Defendant Royce on May 4, 2017.
(Id. at 4-6). Less than two weeks later on May 16,
2017, a federal grand jury returned an indictment against
Defendant Royce. (Doc. 1).
Government argues that Attorney Walker should be disqualified
as counsel for Defendant Royce because his other client, Ms.
Royce, remains under criminal investigation and alternatively
may become a witness at Defendant Royce's trial. (Doc.
14-1 at 7-8). Attorney Walker argues that because he is
pursuing what he calls the "innocent-spouse defense,
" no adversarial position will develop between Defendant
Royce and Ms. Royce, and, therefore, there will be no
conflict of interest in representing both clients. (Doc. 15
Sixth Amendment provides, in part, that "[i]n all
criminal prosecutions, the accused shall enjoy the right...
to have the Assistance of Counsel for his defence." U.S.
Const, amend. VI. The Supreme Court has repeatedly
"recognized that the right to counsel is the right to
the effective assistance of counsel." McMann v.
Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 25
L.Ed.2d 763 (1970). In turn, "[t]he Sixth Amendment
guarantee of effective assistance of counsel includes two
correlative rights, the right to adequate representation by
an attorney of reasonable competence and the right to the
attorney's undivided loyalty free of conflict of
interest." United States v. Gambino, 864 F.2d
1064, 1069 (3d Cir. 1988). "The attorney's undivided
loyalty is required because the type of effective
'assistance of counsel' the Sixth Amendment
guarantees a criminal defendant is that which puts the
government to its proofs in an adversarial manner, and for
this counsel free of conflicts of interest is
necessary." United States v. Moscony, 927 F.2d
742, 748 (3d Cir. 1991).
another right is derived from the right to effective
assistance of counsel, for 'the right to counsel being
conceded, a defendant should be afforded a fair opportunity
to secure counsel of his own choice.'" Id.
(quoting Powell v. Alabama, 287 U.S. 45, 53, 53
S.Ct. 55, 77 L.Ed. 158 (1932)). Nevertheless, "while the
right to select and be represented by one's preferred
attorney is comprehended by the Sixth Amendment, the
essential aim of the Amendment is to guarantee an effective
advocate for each criminal defendant rather than to ensure
that a defendant will inexorably be represented by the lawyer
whom he prefers." Wheat v. United States, 486
U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). Thus,
"[t]he right to counsel of choice... is not absolute,
" United States v. Voigt, 89 F.3d 1050, 1074
(3d Cir. 1996), and the presumption in favor of allowing a
criminal defendant his or her choice of counsel "may be
overcome not only by a demonstration of actual conflict but
by a showing of a serious potential for conflict."
Wheat, 486 U.S. at 164.
a defendant waives his or her right to conflict-free
representation, it "does not necessarily resolve the
matter, for the trial court has an institutional interest in
protecting the truth-seeking function of the proceedings over
which it is presiding by considering whether the defendant
has effective assistance of counsel, regardless of any
proffered waiver." Moscony, 927 F.2d at 749.
Further, "because district courts are required to
evaluate possible conflicts in the 'murkier pretrial
context when relationships between parties are seen through a
glass, darkly, '" the Supreme Court has held that
district courts should have "'substantial
latitude' to take protective steps 'not only in those
rare cases where an actual conflict may be demonstrated
before trial, but in the more common cases where a potential
for conflict exists which may or may not burgeon into an
actual conflict as the trial progresses.'"
United States v. Self, 681 F.3d 190, 198 (3d Cir.
2012) (quoting Wheat, 486 U.S. at 162, 163).
Third Circuit has found that "the typical scenario where
disqualification becomes necessary entails an attorney's
attempt to represent multiple defendants in the same
prosecution." United States v. Stewart, 185
F.3d 112, 121 (3d Cir. 1999). The Circuit, however, has also
"recognized that conflicts arise where a 'defendant
seeks to waive his right to conflict-free representation in
circumstances in which the counsel of his choice may have
divided loyalties due to concurrent or prior representation
of another client who is a co-defendant, a co-conspirator, or
a government witness.'" Id. (quoting
Moscony, 927 F.2d at 749). Indeed, "[c]onflicts
of interest arise whenever an attorney's loyalties are
divided, and an attorney who cross-examines former clients
inherently encounters divided loyalties."
Moscony, 927 F.2d at 750 (internal citations
"representation that constitutes a breach of
professional ethics need not be tolerated, " United
States v. Rankin,779 F.2d 956, 958 (3d Cir. 1986), and
a district court may use the applicable Code of Professional
Responsibility as a guide to help determine whether
disqualification is appropriate, see, e.g., Wheat,
486 U.S. at 160 ("Federal courts have an independent
interest in ensuring that criminal trials are conducted
within the ethical standards of the profession and that legal
proceedings appear fair to all who observe them");
United States v. Dolan,570 F.2d 1177, 1184 (3d Cir.
1978) ("Accordingly, we hold that when a trial court
finds 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, the
court should not be required to tolerate an inadequate
representation of a defendant"); United States v.