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Daniels v. State (1/26/01) ap-1717
Daniels v. State (1/26/01) ap-1717
NOTICE
The text of this opinion can be corrected before the opinion is published in the
Pacific Reporter. Readers are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
HARRY DANIELS, )
) Court of Appeals No. A-7835
Petitioner, ) Trial Court No. 3AN-99-1455 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA,)
)
Respondent. ) [No. 1717 - January 26, 2001]
)
Petition for Review from the Superior Court, Third Judicial
District, Anchorage, Michael L. Wolverton, Judge.
Appearances: Margi A. Mock, Assistant Public Defender, and
Barbara K. Brink, Public Defender, Anchorage, for Petitioner.
Eric A. Johnson, Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Respondent.
Before: Coats, Chief Judge, and Mannheimer and Stewart,
Judges.
MANNHEIMER, Judge.
Harry Daniels is being prosecuted for murder. Until recently, Daniels was
represented by Assistant Public Defender Michael Dieni. But three months ago, Superior
Court Judge Michael Wolverton granted the State's motion to disqualify Dieni from any
further involvement in this case. Daniels asks us to review and reverse Judge
Wolverton's decision, so that Dieni can remain his trial attorney.
This case requires us to examine Dieni's duty of loyalty and confidentiality
to his current client, Daniels. We must also examine the duty of confidentiality that Dieni
owes to his former client, Saganna. Finally, we must explore a trial judge's independent
authority to disqualify an attorney in order to preserve the integrity of the judicial process.
As we explain in detail below, we conclude that Dieni's continued participation in this
case will not violate his duty toward his current client or his duty toward his former client,
nor will Dieni's participation adversely affect the integrity of the proceedings so as to
trigger the trial court's independent authority to order his disqualification. We therefore
grant this petition for review and reverse the superior court's decision to disqualify Dieni.
Underlying Facts
The victim in this case, Phillip Harry, was beaten to death.
Daniels and a woman named Kate Saganna were the only two people with
Harry when he died. Dieni has announced that, to defend Daniels, he will
suggest that Saganna committed the homicide.
Ten years ago, Dieni represented Saganna in an unrelated
assault prosecution. (Saganna was indicted for second-degree assault; she
ultimately pleaded no contest to a reduced charge of third-degree assault.)
Dieni had forgotten about the prior case until it was brought to his attention,
and he claims to have no memory of it aside from what is reflected in the
court file. Nevertheless, because Dieni previously represented Saganna in a
criminal matter, the State claimed that he had a disqualifying conflict of
interest.
When the State filed its motion, Judge Wolverton asked both
Daniels and Saganna to declare their positions regarding Dieni's potential
conflict of interest. Daniels (represented for this purpose by independent
counsel) waived whatever conflict of interest Dieni might have on account
of his prior representation of Saganna. Saganna (represented by a different
attorney) announced that she would not waive her right to complain of a
conflict of interest - but Saganna's attorney also declared that, after
examining the matter fully, he and his client did not perceive any conflict of
interest.
Judge Wolverton's ruling
Judge Wolverton ruled that Dieni should be disqualified from
representing Daniels on account of his prior representation of Saganna.
Although neither Dieni's current client (Daniels) nor his former client
(Saganna) objected to the situation, Judge Wolverton concluded that "[the]
court has an independent duty to question the propriety of permitting Mr.
Dieni to continue representing Daniels in this case."
Judge Wolverton believed there was some risk that, even
though Dieni could not currently remember the details of Saganna's ten-
year-old assault case, his memory might be refreshed as he continued to
prepare Daniels's defense, or might be jogged by events at trial. Judge
Wolverton also believed there was some danger that, during trial, when
Dieni cross-examined Saganna and suggested that she committed the
homicide, Saganna might change her mind about whether Dieni had a
conflict of interest. This would potentially leave the court in the awkward
position of having to declare a mistrial so that Daniels could obtain a new,
conflict-free attorney.
But Judge Wolverton's precise legal basis for disqualifying
Dieni appears to be his conclusion that, under Professional Conduct Rule
1.9, the law presumes that any attorney will know secrets or confidences
imparted by former clients. Applying this presumption to Daniels's case,
Judge Wolverton concluded that, even though Saganna and her independent
counsel declared that they knew of no secret or confidence that Dieni might
use against Saganna, the law nevertheless required Dieni's removal from
the case.
Judge Wolverton specifically ruled that it was irrelevant
whether Saganna had identified any secret or confidence that Dieni might
use against her:
[I]t is neither realistic nor reasonable to expect that a
former client - particularly one who is about to be attacked
and accused by her former attorney as being the perpetrator of
a homicide - would reveal any prior inculpatory
confidences. Any client in this position would clearly not
want to say anything which might jog her former attorney's
memory to her detriment.
(Emphasis in the original)
The judge then relied on a portion of the
commentary to Rule 1.7 of the American Bar Association's
Model Rules of Professional Conduct - language that
appears verbatim in the commentary to Alaska Professional
Conduct Rule 1.7:
As a general proposition, loyalty to a client prohibits [a
lawyer from] undertaking representation directly adverse to
that client without that client's consent. ... Thus, a lawyer
ordinarily may not act as an advocate against a person the
lawyer represents in some other matter, even if it is wholly
unrelated.
Alaska Rules of Professional Conduct, Rule 1.7, "Comment",
paragraph 2.
Based on this commentary, Judge Wolverton
ruled that Dieni was prohibited from taking a position adverse
to Saganna, even though the current murder prosecution
against Daniels is wholly unrelated to the ten-year-old assault
charge against Saganna.
Overview of the problem
This case presents the question of whether an attorney should
be disqualified from representing a criminal defendant because the attorney
previously represented a person who is expected to be an important witness
and who is, herself, a potential suspect. To resolve this question, we must
consider three interests.
First, Dieni owes a duty of loyalty and confidentiality to his
current client, Daniels. A lawyer's duty to current clients is codified in
Professional Conduct Rule 1.7. Next, Dieni owes a similar but less exacting
duty to his former client, Saganna. A lawyer's duty to former clients is
codified in Professional Conduct Rule 1.9. Finally, even when the current
client and the former client are both willing to accept the lawyer's
participation in the case, the trial judge has independent authority to
disqualify the attorney to preserve the fairness of the trial and the integrity
of the judicial process.
Dieni's duty to his current client, Daniels
Under Professional Conduct Rule 1.7(b), Dieni must cease
representing Daniels if "[his] representation of [Daniels] may be materially
limited by [his] responsibilities to ... a third person". In this case, Dieni
owes responsibilities to his former client, Saganna. As explained in more
detail in the next section, Dieni's chief responsibility to Saganna is to
maintain the secrets and confidences that Saganna imparted to him during
their attorney-client relationship.
Conceivably, when the interests of a former client conflict
with the interests of a current client, lingering loyalty to the former client
might deter an attorney from being a zealous advocate for the current client.
But in the present case, no one has suggested that Dieni would "pull his
punches" at Daniels's trial because of lingering loyalty to Saganna. Dieni
did not even remember that he had represented Saganna.
Another potential danger is that, in the earlier attorney-client
relationship, the attorney may have learned secrets or confidences from the
former client that are now important to a proper defense of the attorney's
current client. Professional Conduct Rule 1.9(c) bars a lawyer from
revealing a former client's secrets and confidences or using those secrets
and confidences to the disadvantage of the former client (except as
permitted or required by Professional Conduct Rule 1.6 or Rule 3.3).1 In
such a situation, if the attorney follows the Rules of Professional Conduct
and preserves the former client's confidences, the attorney may fail to
effectively defend the current client.
But in the present case, no one has identified any pertinent
secrets or confidences that Saganna might have imparted to Dieni. And, in
any case, Daniels has explicitly waived any potential conflict. This waiver
appears to be informed and voluntary. Daniels knows that Dieni
represented Saganna ten years ago, and even after all the proceedings on
this issue, Daniels still wants Dieni to be his attorney. Judge Wolverton has
not suggested any reason to distrust Daniels's waiver of the potential
conflict.
Dieni's duty to his former client, Saganna
Judge Wolverton did not disqualify Dieni based on the
perception that Dieni might fail to zealously defend Daniels. Rather, Judge
Wolverton's ruling was based on the opposite perception: the judge's
concern that Dieni's loyalty to Daniels might prompt him to violate
Professional Conduct Rule 1.9 by unlawfully attacking Saganna with
information he obtained in confidence when he was Saganna's lawyer ten
years ago.
As explained above, Judge Wolverton relied heavily on a
portion of the commentary to Professional Conduct Rule 1.7:
[A] lawyer ordinarily may not act as an advocate against a person the
lawyer represents in some other matter, even if it is wholly unrelated.
Professional Conduct Rule 1.7, "Comment", paragraph 2. Based on this
commentary, Judge Wolverton concluded that Dieni could not ethically take
a position adverse to Saganna, even though the murder prosecution against
Daniels is wholly unrelated to the ten-year-old assault charge against
Saganna.
But Judge Wolverton's reliance on this comment is misplaced.
The comment describes the effect of Professional Conduct Rule 1.7 - the
rule that forbids a lawyer from taking on or pursuing legal work on behalf
of a new client if that legal work involves taking a position adverse to the
interests of a present client. That is not the problem here. Dieni's present
client is Daniels, and Dieni is not pursuing any legal work antagonistic to
Daniels's interests.
Because the problem is the potential conflict between Dieni
and a former client, Saganna, Professional Conduct Rule 1.7 does not
govern this case. Instead, Rule 1.9 does.
Rule 1.9, the conflict-of-interest rule that deals with former
clients, differs significantly from Rule 1.7. As Judge Wolverton correctly
noted, Rule 1.7 ordinarily bars a lawyer from "act[ing] as an advocate
against a [present client], even if [the matter] is wholly unrelated" to the
work the lawyer is doing for that present client. But with respect to former
clients, the rule of disqualification is not so broad. Rule 1.9(a) declares that
a lawyer who has represented a person in the past ordinarily must not
represent another client "in the same or a substantially related matter in
which the [new client's] interests are materially adverse to the interests of
the former client".
The important difference is this: With respect to present
clients, the rule of disqualification extends to any legal work - even legal
work that is "wholly unrelated" to the work the lawyer is performing for
their present client - if the new work would require the lawyer to take a
position directly adverse to their present client's interests. But with respect
to former clients, the rule of disqualification extends only to legal work "in
the same [matter]" or to work that is "substantially related" to the matter in
which the lawyer represented the former client. In all other situations, the
lawyer may ethically take a position that is directly adverse to a former
client's interests - so long as the former client's secrets and confidences
are preserved as required by Rule 1.9(c).
The present murder charge against Daniels is not the same
matter as the ten-year-old assault prosecution against Saganna, nor are these
two proceedings "substantially related" within the meaning of Professional
Conduct Rule 1.9(a).2 Thus, in representing Daniels in the current murder
case, Dieni is free to take a position adverse to Saganna's interests so long
as he does not reveal or use any information he received in confidence from
Saganna while he represented her in the assault case.
Dieni has stated that he has no independent recollection of the
assault case; one can therefore infer that he has no memory of any secrets or
confidences imparted by Saganna. For her part, Saganna consulted
independent counsel and then told Judge Wolverton that she saw no conflict
and that she did not object to Dieni's continuing to represent Daniels.
Saganna thus implicitly declared that neither she nor her attorney could
identify any secret or confidence that Dieni might use against her.
A trial court's authority to disqualify an attorney even though the attorney's
present and former clients do not object to the attorney's participation
Under the Sixth Amendment to the United States Constitution
and Article I, Section 11 of the Alaska Constitution, defendants in criminal
cases are guaranteed the effective assistance of counsel. For defendants
who hire their own attorney, the right to counsel encompasses a conditional
right to counsel of the defendant's choosing.3
Even so, courts have the authority to disqualify a defense
attorney if this is necessary to ensure the integrity of the judicial process:
[W]hile 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 ... rather than to ensure
that a defendant will inexorably be represented by the lawyer whom he
prefers.
Locascio v. United States, 6 F.3d 924, 931 (2nd Cir. 1993). Thus, a
defendant's right to waive their attorney's conflict of interest is not
absolute; "[the] 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."4
Because of the independent value placed on the adversarial
process, a defendant's presumptive entitlement to counsel of their choice
"can be overcome by a showing of an actual conflict [of interest] or [a]
potentially serious conflict."5 Nevertheless, a defendant's informed waiver
of a potential conflict of interest should be honored "so long as the
[continued participation of the attorney] does not seriously compromise the
integrity of the judicial process."6
In the present case, Daniels is indigent, and he is represented
by the Public Defender Agency. Although indigent defendants have the
right to an attorney at public expense, they have no right to demand a
particular attorney.7
Thus, even leaving Judge Wolverton's ruling aside, Daniels
has no right to demand that Dieni represent him. The Public Defender
Agency has the discretion to assign another attorney to Daniels's case.
Here, however, the superior court has effectively ordered the Public
Defender Agency to assign a new attorney to Daniels's case - not at the
Agency's behest, but at the request of the State.
We acknowledge that the State has an interest in making sure
that trials are conducted fairly and that potential reversible errors are
addressed and remedied. Nevertheless, motions to disqualify an opposing
litigant's attorney can also be used as a tactic to weaken or disrupt the
presentation of an opponent's case.8 Moreover, when (as here) the
ostensible reason for disqualification is the attorney's conflicting loyalty to
a former client, the normal rule is that "courts do not disqualify an attorney
on the grounds of conflict of interest unless the former client moves for
disqualification".9
One of the leading cases on this issue is In re Yarn Processing
Patent Validity Litigation.10 In Yarn Processing, one defendant was the
former client of another co-defendant's attorney. The former client moved
to disqualify the attorney but, before the motion was decided, the case
against the former client was dismissed. Another co-defendant then
attempted to renew the motion to disqualify. The Fifth Circuit held that
only the former client could object to the potentially adverse representation:
To allow an unauthorized surrogate to champion the
rights of the former client would allow the surrogate to use the
conflict rules for his own purposes where a genuine conflict
might not really exist. It would place in the hands of the
unauthorized surrogate powerful presumptions which are
inappropriate in [such circumstances.] ... We are reluctant to
extend [the power to disqualify an attorney] where the party
receiving such an advantage has no right of his own which is
being invaded.
530 F.2d at 90. The Fifth Circuit suggested, however, that it
might make an exception when the attorney's ethical violation
was "manifest and glaring" or "open and obvious", thus
confronting the trial judge with "a plain duty to act".11
In the present case, the former client - Saganna
- has declared (after consultation with independent counsel)
that she does not object to Dieni's continuing to represent
Daniels. Under these circumstances, we agree with the Public
Defender Agency that the superior court must not interfere
with the Agency's assignment of Dieni to this case unless the
court has a substantial reason for believing that, despite
Saganna's lack of objection, Dieni's continued participation
in the case will likely create injustice or "seriously
compromise the integrity of the judicial process".12
In deciding whether a defense lawyer's prior
attorney-client relationship with a government witness will
create injustice or compromise the integrity of the judicial
process, courts look to several factors. We have already
discussed two of these factors: the possibility that the lawyer
might be impeded from zealously representing their current
client because of the ethical duty to their former client, and
the converse possibility that the lawyer might take unlawful
advantage of attorney-client confidences when cross-
examining their former client.
As explained above, Daniels has waived
whatever conflict of interest might arise from Dieni's prior
representation of Saganna. Yet courts have a duty to see that
a criminal defendant receives effective assistance of counsel,
regardless of the defendant's ostensible willingness to waive
this right.13 Although courts should normally accede to the
defendant's informed choice on this issue, some courts have
ruled that a trial judge may reject a defendant's waiver of their
attorney's conflict of interest if the "conflict is so egregious
that no rational defendant would knowingly and voluntarily
desire the attorney's representation."14
In Daniels's case, there is no evidence of this
type of egregious conflict. Dieni's announced trial strategy
(to accuse his former client, Saganna, of the homicide)
indicates a zealous loyalty to Daniels. And with regard to the
possibility that Dieni might be placed in an ethical dilemma if,
to pursue this defense, he needed to use information received
from Saganna in confidence, we note that neither Dieni nor
Saganna nor Saganna's attorney has identified any pertinent
client confidence that Saganna might have imparted to Dieni
ten years ago.
In addition to protecting a defendant's right to
the effective assistance of counsel, courts also have a
responsibility to protect the verdict from trial tactics that are
designed to generate issues for appeal.15 This problem could
arise when the defendant and the witness are potentially
linked by affection or common interest - for example, in
organized crime prosecutions when the government witness is
a present or former associate of the defendant. In such cases,
courts must be vigilant against the possibility that the
defendant and the witness are waiving potential conflicts of
interest with the idea that, if the verdict is unfavorable, the
defendant can later attack the waiver as involuntary or
uninformed. In Daniels's case, however, there is no
indication that Daniels and Saganna have a motivation to
engage in such joint tactics.
Finally, when (as in Daniels's case) the issue is a
defense attorney's potentially conflicting loyalty to a
government witness, courts should also consider society's
interest in protecting the secrecy of attorney-client
communications.16 The attorney-client privilege serves the
cause of justice by promoting candor between counsel and
client - candor encouraged by the promise that the lawyer
will not later reveal the client's confidences or use them to
advance the cause of another client.
Even though the witness in this case, Saganna,
has voiced no objection to Dieni's continued participation as
Daniels's attorney, some courts have recognized the
government's interest in "protecting its witnesses from tactics
that are unfair" - e.g., cross-examination that is based on, or
derived from, protected client confidences.
17 Nevertheless, a court should rarely disqualify an attorney
based on a former attorney-client relationship if the former
client does not seek the attorney's disqualification. As the
Second Circuit said in United States v. Rogers,
No case has been called to our attention, and we are aware of
none, in which an attorney has been disqualified on grounds
of conflicting prior representation solely at the behest of a
person other than the former client or [a successor to the
former client's privilege]. As a general rule, courts do not
disqualify an attorney on the grounds of conflict of interest
unless the former client moves for disqualification. The
refusal to disqualify in the absence of a motion by the former
client is all the more appropriate in the context of a criminal
prosecution with its implication of constitutional rights.
9 F.3d 1025, 1031 (2nd Cir. 1993) (internal quotations
omitted).
Thus, when the former client - the one whose
interests are ostensibly at stake - fails to join the
government's motion to disqualify the defense attorney, this
fact "strongly militates against a finding that disqualification
... is mandated."18
As explained above, Dieni asserted that he had
no conflict of interest, and Saganna (after consultation with
independent counsel) reached the same conclusion. Yet
Judge Wolverton was unwilling to accept Dieni's and
Saganna's position that there was no conflict of interest. The
judge speculated that, while Dieni was preparing or presenting
Daniels's defense, something might jog Dieni's memory and
he might recollect something about Saganna's assault case.
Although this possibility can not be ignored, it does not lead
to the conclusion that Dieni is violating the Rules of
Professional Conduct by representing Daniels.
It must be emphasized that Professional Conduct
Rule 1.9(c) does not bar Dieni from using any and all
knowledge he may have (or come to remember) about
Saganna's case. Rather, the rule only bars Dieni from using
Saganna's "secrets" or "confidences" against her.19 Thus,
even if Dieni comes to remember details of Saganna's ten-
year-old case, these memories would raise no ethical duty
unless the details concerned Saganna's secrets or confidences,
and unless those secrets or confidences were important to
Dieni's defense of Daniels.
In ruling that Dieni should be disqualified from
serving as the defense attorney in this case even though
Saganna had no objection, Judge Wolverton relied on
language found in the "Legal Background" portion of the
American Bar Association's commentary to Model Rule of
Professional Conduct 1.9:
Rule 1.9 presumes that a lawyer had access to
confidential information in the previous representation or
employment. This presumption relieves the [former] client of
the need to prove that the ... lawyer had confidential
information - a task that could require the client to disclose
the very things he or she wanted kept secret.
American Bar Association, Annotated Model Rules of
Professional Conduct (Fourth Edition, 1999), commentary to
Rule 1.9, section entitled "Presumption that Confidential
Information was Acquired During the Prior Representation",
p. 148.
But Judge Wolverton overlooked the fact that
the ABA amended Model Rule 1.9 in 1989. It is this
amended version of the rule that the Alaska Supreme Court
adopted in 1993. The amended rule altered the presumption
discussed in the above-quoted commentary. In a section of
commentary entitled "Amendment of the Rule", the ABA
discusses the 1989 amendment to Rule 1.9 and its effect on
the presumption that an attorney possesses confidential
information about a client:
In 1989, the ABA amended Rule 1.9 and imported
subsection (b) from Rule 1.10, Imputed Disqualification:
General Rule. This change can be construed as a strong
signal that Rule 1.9 does indeed allow a lawyer to rebut the
presumption that he or she received confidential information
during the previous representation.
Annotated Model Rules of Professional Conduct (Fourth
Edition, 1999), p. 149. The ABA commentary then cites
several illustrative cases. In one of these cases, In re Del-Val
Finance Corp.20, the court denied a motion to disqualify
based in part on the fact that the challenged lawyer had no
recollection of receiving any confidential information from
the former client.
Another case, Gaumer v. McDaniel21, went even
further. The court apparently assumed that the attorney might
have gained confidential information from the former client;
nevertheless, the court required an affirmative showing that
the former client's confidences could be used to the client's
detriment.
According to the Gaumer court, "the essential
inquiry is whether ... any confidential communications from
the [former client] to the [attorney] could be detrimental to the
[former client] in the present case."22 The court declared that
there are two aspects to this question. First, did the former
client impart "any confidential communications to the
[attorney] which are substantially related to the instant
lawsuit? Second, ... if there were such communications, is
there any likelihood that [these] communications could be
used to the detriment of the [former client]?"23
The Gaumer court cautioned that, "[w]hen
resolving this question, [a] court should not allow its
imagination to run free with a view to hypothesizing
conceivable but unlikely situations in which confidential
information might have been disclosed which would be
relevant to the present suit."24 The rationale behind this
cautious approach was explained by the Fifth Circuit in its
decision, In re Yarn Processing Patent Validity Litigation:
The ... rules relating to attorney conflicts of interest are
designed to allay any apprehension a client may have in frank
discussion of confidential information with his attorney.
Public confidence in the privacy of this discussion [will] not
be impaired where the former client, having every opportunity
to do so, fails to object to a new relationship involving his
former attorney, and where the [alleged] unethical nature of
the attorney's change of sides is not manifest[.]
530 F.2d 83, 90 (5th Cir. 1976).
We have found several cases in which courts
have disqualified a defense attorney because the attorney
previously represented an important government witness. In
some of these cases, the witness affirmatively objected to the
attorney's participation.25 Almost without exception, the
remaining cases involved situations where (1) the witness and
the defendant (the attorney's present client) were both
involved in the same criminal transactions or enterprises that
formed the basis of the government's current case against the
defendant, and (2) the attorney (or other members of the
attorney's firm) represented or counseled the witness during
an earlier stage of the same (or a closely related) criminal
investigation.26
The facts of the present case do not fit this mold.
Dieni represented Saganna ten years ago in a completely
unrelated assault case. To the extent that Saganna's
conviction for assault might be admissible evidence in
Daniels's murder prosecution, Dieni's knowledge of
Saganna's conviction does not rest on confidential
information, and it does not appear that his arguments for the
admissibility of that conviction would rest on confidential
information either.
No one whose interests are at stake - Daniels,
Saganna, and Dieni - has asserted or suggested that a
conflict of interest arises from Dieni's prior attorney-client
relationship with Saganna. One may speculate that, at some
point in the future, Dieni might recall some confidence
imparted by Saganna and realize that this confidential
information is relevant to Daniels's defense. But, on the
present record, this would only be speculation. There is
currently no articulable reason to believe that anything Dieni
and Saganna discussed (as attorney and client) ten years ago
would be pertinent to the litigation of the murder charge
against Daniels.
Conclusion
For these reasons, we conclude that Judge Wolverton abused
his discretion when he disqualified Dieni from further service as Daniels's
defense attorney. The decision of the superior court is REVERSED.
1 "Secret" and "confidence" are defined in Professional Conduct Rule 1.6(a).
2 Courts apply varying tests to determine whether legal matters are "substantially
related" for purposes of Professional Conduct Rule 1.9(a). See the cases collected in
Adoption of Erica, 686 N.E.2d 967, 970 (Mass. 1997).
Some courts hold that matters are "substantially related" only when the issues
involved are identical or virtually identical. See Lightning Park v. Wise, Lerman, & Katz,
609 N.Y.S.2d 904, 906 (N.Y. App. 1994); Government of India v. Cook Industries, Inc., 569
F.2d 737, 740 (2nd Cir. 1978). Other courts look to whether the legal issues are substantially
the same or closely interwoven. See Angleton v. Estate of Angleton, 671 N.E.2d 921, 928
(Ind. App. 1996); Lawyer Disciplinary Board v. Printz, 452 S.E.2d 720, 724 (W.Va. 1994).
Finally, some courts look to whether the operative facts of the two cases are so closely
related that one would reasonably expect the attorney to have acquired pertinent confidential
information from the former client - i.e., information that is protected by Rule 1.6 or Rule
1.9(c) and that would predictably be used to the detriment of the former client by a zealous,
conflict-free advocate. See Carragher v. Harman, 469 S.E.2d 443, 445 (Ga. App. 1996);
SLC Limited V v. Bradford Group West, Inc., 999 F.2d 464, 467-68 (10th Cir. 1993); Matter
of Guardianship of Tamara L.P., 503 N.W.2d 333, 337-38 (Wis. 1993); Contant v. Kawasaki
Motors Corp. U.S.A., Inc., 826 F.Supp. 427, 429 (M.D. Fla. 1993); Ramada Franchise
System, Inc. v. Hotel of Gainesville Associates, 988 F.Supp. 1460, 1463, 1465-66 (N.D. Ga.
1997); Commonwealth Insurance Co. v. Graphix Hot Line, Inc., 808 F.Supp. 1200, 1204-05
(E.D. Pa. 1992).
Under any of these tests, the ten-year-old assault prosecution against Saganna is
not related to the pending murder prosecution against Daniels.
3 See Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140
(1988). This right to counsel of choice is not absolute. In Wheat, the Supreme Court held
that a criminal defendant's choice of counsel can be overridden by the rules limiting an
attorney's ability to jointly represent two or more co-defendants - in particular, the rule
forbidding joint representation when the co-defendants have an actual conflict of interest.
Id., U.S. at 162, S.Ct. at 1698.
4 Locascio, 6 F.3d at 931.
5 Id.
6 United States v. Rahman, 837 F.Supp. 64, 70 (S.D. N.Y. 1993) (quoting Locascio,
6 F.3d at 933-34).
7 See Coleman v. State, 621 P.2d 869, 878 (Alaska 1980); Annas v. State, 726 P.2d
552, 557 (Alaska App. 1986).
8 See Colyer v. Smith, 50 F.Supp.2d 966, 973 (C.D. Cal. 1999) ("Because of this
potential for abuse, disqualification motions [brought by third parties] should be subjected to
particularly strict judicial scrutiny.") (quoting Optyl Eyewear Fashion International v. Style
Companies, 760 F.2d 1045, 1050 (9th Cir. 1985)).
9 United States v. Rogers, 9 F.3d 1025, 1031 (2nd Cir. 1993) (quoting United States
v. Cunningham, 672 F.2d 1064, 1072 (2nd Cir. 1982)). The original source of this language
is In re Yarn Processing Patent Validity Litigation, 530 F.2d 83, 88 (5th Cir. 1976).
10 530 F.2d 83 (5th Cir. 1976).
11 Id. at 89. See also In re Appeal of Infotechnology, Inc., 582 A.2d 215, 221-22
(Del. 1990) (holding that a third party has standing to raise an attorney's ethical breach if the
conflict of interest so infects the litigation as to impair the moving party's right to a just and
lawful litigation of their claims).
12 United States v. Rahman, 837 F.Supp. 64, 70 (S.D. N.Y. 1993) (quoting Locascio,
6 F.3d at 933-34).
13 See United States v. Stansfield, 874 F.Supp. 640, 643 (M.D. Pa. 1994).
14 United States v. Gotti, 9 F.Supp.2d 320, 324 (S.D. N.Y. 1998) (quoting United
States v. Lussier, 71 F.3d 456, 461 (2nd Cir. 1995)). See also United States v. Leslie, 103
F.3d 1093, 1098 (2nd Cir. 1997).
15 See United States v. Moscony, 927 F.2d 742, 749-750 (3rd Cir. 1991).
16 See United States v. Moscony, 927 F.2d 742, 749-750 (3rd Cir. 1991); United
States v. Stansfield, 874 F.Supp. 640, 643 (M.D. Pa. 1994).
17 United States v. James, 708 F.2d 40, 46 (2nd Cir. 1983); Falzone v. United States,
766 F.Supp. 1265, 1275 (W.D. N.Y. 1991).
18 United States v. Gehl, 852 F.Supp. 1135, 1147 (N.D. N.Y. 1994). See also
Chrispens v. Coastal Ref. and Marketing, Inc., 897 P.2d 104, 122-23 (Kan. 1995); Blitch
Ford, Inc. v. MIC Property and Casualty Ins. Corp., 980 F.Supp. 1261 (M.D. Ga. 1997).
Compare United States v. Stansfield, 874 F.Supp. 640, 645 (M.D. Pa. 1994) (an attorney has
an affirmative duty to disclose potential conflicts).
19 Under Rule 1.6(a), a "confidence" is any information protected by the attorney-
client privilege, while a "secret" is "other information gained in the professional relationship
if the client has requested [that] it be held confidential or if it is reasonably foreseeable that
disclosure of the information would be embarrassing or detrimental to the client."
20 158 F.R.D. 270 (S.D. N.Y. 1994).
21 811 F.Supp. 1113 (D. Md. 1991), aff'd 23 F.3d 400 (4th Cir. 1994).
22 Id. at 1118.
23 Id.
24 Id. (quoting Satellite Financial Planning v. First Nat'l Bank of Wilmington, 652
F.Supp. 1281, 1284 (D. Del. 1987)).
25 See United States v. Voigt, 89 F.3d 1050, 1079 (3rd Cir. 1996); United States v.
Rogers, 9 F.3d 1025, 1031 (2nd Cir. 1993); United States v. Gotti, 9 F.Supp.2d 320, 325-26
(S.D. N.Y. 1998).
26 See United States v. Voigt, 89 F.3d 1050, 1077-1080 (3rd Cir. 1996); United States
v. Iorizzo, 786 F.2d 52, 57-58 (2nd Cir. 1986); United States v. Gotti, 9 F.Supp.2d 320, 325-
26, 328-29 (S.D. N.Y. 1998); United States v. Alex, 788 F.Supp. 359, 363 (N.D. Ill. 1992).
Compare another portion of the Gotti decision, 9 F.Supp.2d at 329-331, where the court ruled
that an attorney's prior representation of a witness in a completely separate investigation does
not require the attorney's disqualification if both the present client and the former client give
their informed consent.
But compare United States v. Stansfield, 874 F.Supp. 640 (M.D. Pa. 1994), in which
the court removed a defense attorney even though the government witness (the former client)
did not object and the prior legal representation involved an unrelated case. The government
witness (and former client) was the defendant's brother. The defense attorney's law firm had
previously represented the brother in an earlier case, but the earlier case was not related to the
present prosecution. Id. at 641. Nevertheless, the court disqualified the defense attorney. Id.
at 648. This decision might be explained by the court's wariness of the family tie between
the defendant and the witness. More important, perhaps, was the fact that the attorney's prior
link to the defendant's brother was only one conflict of interest among many. Id. at 645.
Moreover, it appeared that other members of the defense attorney's law firm were likely to be
called as government witnesses. Id. at 644.
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