US v . Gingras CR-02-047-M 09/23/02
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America,
Plaintiff
v. Criminal N o . 02-47-1-M
Opinion N o . 2002 DNH 169
Michael Gingras,
Defendant
O R D E R
Michael Gingras has been charged with conspiracy to
distribute cocaine, in violation of 21 U.S.C. § 846, and use of a
communication facility in the commission of a felony, in
violation of
21 U.S.C. § 843(b). Before the court is the
government’s motion to disqualify Gingras’s co-counsel, Steven
Gordon, Esq., because of an alleged conflict of interest.
Defendant objects. For the reasons given below, the government’s
motion is denied.
FACTUAL BACKGROUND
The government is concerned because Attorney Gordon
previously represented Samuel Bellavance, a potential prosecution
witness in this case. The government subpoenaed Bellavance to
testify before the grand jury about his knowledge of Gingras’s
alleged criminal activity. Bellavance retained Attorney Gordon
to represent him throughout the grand jury proceeding. Attorney
Gordon negotiated an order of immunity for Bellavance. See 18
U.S.C. § 6003. Consequently, on April 1 0 , 2002, Bellavance
testified before the grand jury and, for all practical purposes,
no longer faces criminal liability. Attorney Gordon also
represented Bellavance regarding asset forfeiture issues directly
related to Gingras’s criminal case. That representation was
completed on November 8 , 2001.
In late spring of 2002, Gingras asked Attorney Gordon to
serve as his co-counsel, assisting Attorney Martin Weinberg,
Gingras’s lead defense counsel. Before agreeing to represent
Gingras, Attorney Gordon contacted Bellavance to secure his
consent. Gordon obtained Bellavance’s oral consent in a
telephone conversation, but also sent Bellavance a letter dated
June 6, 2002, in which he addressed issues associated with his
potential representation of Gingras.
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Attorney Gordon’s letter, which included a written waiver
form for Bellavance to sign if he consented, plainly disclosed
that Gordon’s representation of Gingras would be substantially
related to the matter in which Attorney Gordon had previously
represented Bellavance and that a possible conflict of interest
existed between Bellavance and Gingras. It also informed
Bellavance that in the event Bellavance was called as a witness,
Gordon would neither participate in cross-examination nor
disclose any confidential information relating to the prior
representation in aid of Gingras’s defense. Gordon stated that
lead counsel, Attorney Weinberg, would handle any cross-
examination. Gordon also enclosed a copy of N . H . R . P R O F . CONDUCT
1.7 (Conflict of Interest: General Rule), N . H . R . P R O F . CONDUCT 1.8
(Conflict of Interest: Prohibited Transactions), and N . H . R . PROF.
CONDUCT 1.9 (Conflict of Interest: Former Client) for Bellavance
to review. Finally, Gordon’s letter encouraged Bellavance to
consult independent counsel before signing the waiver.
On or about June 1 1 , 2002, Bellavance executed the waiver,
thereby consenting to Gordon’s limited representation of Gingras
in this case. Gordon sent Bellavance another letter, dated June
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1 2 , 2002, further explaining the contents of the waiver
agreement. In that letter, Attorney Gordon included copies of
N . H . R . P R O F . CONDUCT 1.6 (Confidentiality of Information) and N . H .
R . P R O F . CONDUCT 3.3 (Candor Toward the Tribunal).
Upon receipt of Bellavance’s written waiver, Gordon informed
Gingras, by letter, that if he was retained as co-counsel in the
case, he would not disclose to Gingras or to lead counsel
Weinberg, any confidential information he acquired during the
course of his representation of Bellavance. Attorney Gordon
further informed Gingras that if Bellavance was called as a
witness, he would not participate in case preparation related to
Bellavance or in his cross-examination. Gordon also enclosed
copies of Rules 1.7, 1.8, and 1.9 of the New Hampshire Rules of
Professional Conduct, and suggested that Gingras consult
independent counsel prior to executing a waiver included with the
letter. On June 2 4 , 2002, Gingras signed the written consent
form, acknowledging the limited role Gordon would play as co-
counsel and formally retaining Attorney Gordon to represent him,
subject to the limitations Attorney Gordon had outlined.
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On June 2 7 , 2002, Gordon sent a letter to the prosecutor,
Assistant United States Attorney Mark Irish, informing him that
he had been retained to represent Gingras as co-counsel and that
he had obtained written consent from both Bellavance and Gingras.
On August 2 , 2002, the government moved to disqualify Gordon from
representing Gingras.
DISCUSSION
The government asserts that Attorney Gordon has an actual,
as well as potential, conflict of interest under Rule 1.9 of the
New Hampshire Rules of Professional Conduct. The government also
asserts that even absent a violation of Rule 1.9, the court
should disqualify Gordon to preserve the integrity of the trial
process by precluding even an appearance of conflict, as well as
to eliminate any future ineffective assistance of counsel claim
based on an asserted conflict.
Defendant objects to the government’s motion to disqualify
on grounds that: (1) no conflict or potential for conflict
arises from Gordon’s representation of Gingras; (2) in the event
that Bellavance is called to testify as a witness, the
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confidentiality agreement between Gordon and Bellavance
adequately protects Bellavance; (3) Gingras is entitled under the
Sixth Amendment to counsel of his choice; and (4) Bellavance and
Gingras knowingly, intelligently and voluntarily waived any
interest they have that might be compromised by Gordon’s
representation.
The Sixth Amendment to the United States Constitution
guarantees that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for
his defence.” The United States Supreme Court has construed the
Sixth Amendment right to counsel as giving “a defendant . . . a
fair opportunity to secure counsel of his own choice.” Powell v .
Alabama, 287 U.S. 4 5 , 53 (1932). The Court of Appeals for the
First Circuit has held that “disqualification of . . . counsel
should be a measure of last resort [and] [t]he government bears a
heavy burden in demonstrating that [disqualification] is
justified.” In re Grand Jury Proceedings,
859 F.2d 1021, 1026
(1st Cir. 1988) (internal quotation and citation omitted)
(holding that district court should not have disqualified
attorney in the absence of evidence suggesting that the
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attorney’s former client, an immunized witness, had any
incriminating information regarding the attorney’s current
client). In addition to affording defendants the right to
counsel of their own choice, however, the Sixth Amendment
includes “a correlative right to representation that is free from
conflicts of interests.” Mountjoy v . Warden, N.H. State Prison,
245 F.3d 3 1 , 36 (1st Cir. 2001) (quoting Wood v . Georgia,
450
U.S. 261, 271 (1981)).
A criminal defendant’s right to choose his or her own
attorney necessarily is subject to limitations. See Wheat v .
United States, 486 U.S. 153, 159 (1988) (affirming district
court’s refusal to accept client’s waiver of attorney’s
simultaneous representation of co-defendants and three additional
co-conspirators in a complex drug trafficking case). A
defendant’s right to choose particular counsel should normally be
overridden i f , for example, his or her selection would create a
conflict of interest. United States v . Lanoue,
137 F.3d 656, 663
(1st Cir. 1998). However, in the event that “defense counsel has
a conflict . . . the court may sometimes allow the attorney to
continue with the representation if the defendant makes a
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voluntary, knowing, and intelligent waiver.” Mountjoy, 245 F.3d
at 3 6 .
With respect to issues such as conflict of interest, “the
district court is vested with the power and responsibility of
supervising the professional conduct of attorneys appearing
before it.” Kevlik v . Goldstein, 724 F.2d 844, 847 (1st Cir.
1984). Substantively speaking, “[t]he standards for Professional
Conduct adopted by this court are the Rules of Professional
Conduct adopted by the New Hampshire Supreme Court.” L R 83.5,
DR-1. Both parties agree that whether Attorney Gordon’s
representation of Gingras in this case will create a conflict of
interest is governed by N . H . R . P R O F . CONDUCT 1.9, which provides
in relevant part:
(a) A lawyer who has formerly
represented a client in a matter shall not
thereafter represent another person in the
same or a substantially related matter in
which that person’s interests are materially
adverse to the interests of the former client
unless the former client consents after
consultation and with knowledge of the
consequences.
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(c) A lawyer who has formerly
represented a client in a matter . . . shall
not thereafter:
(1) use information relating to the
representation to the disadvantage of the
former client except as Rule 1.6 or Rule 3.3
would permit or require with respect to a
client, or when the information has become
generally known; or
(2) reveal information relating to the
representation except as Rule 1.6 or Rule 3.3
would permit or require with respect to a
client.
The New Hampshire Supreme Court has held that:
A Rule 1.9 violation is established by
proof of four elements. First, there must
have been a valid attorney-client
relationship between the attorney and the
former client. Cole v . Ruidoso Mun. Schools,
43 F.3d 1373, 1384 (10th Cir. 1994). Second,
the interests of the present and former
clients must be materially adverse. Kaselaan
& D’Angelo Associates, Inc. v . D’Angelo, 144
F . R . D . 235, 238 (D.N.J. 1992). Third, the
former client must not have consented, in an
informed manner, to the new representation.
N . H . R . P R O F . CONDUCT 1.9(a); see Wellman v .
Willis, 400 Mass. 4 9 4 ,
509 N.E.2d 1185, 1188
(Mass. 1987). Finally, the current matter
and the former matter must be the same or
substantially related. Kevlik v . Goldstein,
724 F.2d 8 4 4 , 850-51 (1st Cir. 1984); see
RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS §
213 (Tent. Draft N o . 4 , 1991).
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Sullivan County Regional Refuse Disposal Dist. v . Town of
Acworth, 141 N.H. 479, 481-82 (1996).
When “all of the elements of Rule 1.9 have been satisfied, a
court must irrebuttably presume that the attorney acquired
confidential information in the former representation” and
disqualification is required. Id. at 483 (citations omitted).
On the other hand, failure by a party moving for disqualification
to satisfy all four elements of Rule 1.9 does not end the court’s
inquiry. For example, execution of waivers by all criminal
defendants potentially affected by conflicts of interest arising
from multiple representation does not necessarily compel a court
to permit such representation because “[f]ederal 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.” Wheat,
486 U.S. at 160.
Here, disqualification is not warranted because: (1) a
material element of a Rule 1.9 violation is not established; and
(2) neither fairness nor the appearance of fairness of Gingras’s
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trial will be compromised by allowing Gordon to serve in a
limited role as co-counsel to Gingras.
It is undisputed that the first, second, and fourth elements
of a Rule 1.9 violation have been shown. But Bellavance has
given knowing, informed, and voluntary consent to Attorney
Gordon’s limited representation of Gingras, under circumstances
that fully protect his own rights to confidentiality. The record
discloses that Bellavance provided Attorney Gordon with his
informed consent, and the government has offered no reason to
think that Bellavance’s consent does not qualify as “informed
consent.” Attorney Gordon’s June 6, 2002, letter to Bellavance
fully informed him of potential conflict issues related to his
proposed representation, and Gordon provided Bellavance with
copies of the applicable provisions of the New Hampshire Rules of
Professional Conduct, suggesting that Bellavance consult with an
attorney prior to signing the waiver and consenting to his
representation of Gingras. Given Gordon’s rather thorough
disclosure and Bellavance’s documented consent, as well as the
protective limitation placed on Gordon’s representation, agreed
to by both Bellavance and Gingras, no violation of Rule 1.9 is
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apparent, relative to Bellavance. (Bellavance, of course, has
not agreed to any disclosure of information protected by the
attorney-client privilege, and Gordon has specifically agreed not
to disclose such information.)
The government next contends that even if Gordon’s
representation of Gingras does not create a disqualifying
conflict of interest under Rule 1.9, he should nevertheless be
disqualified in the interest of protecting the integrity of the
trial process. Specifically, the government argues that Attorney
Gordon’s representation of Gingras would subject a guilty verdict
in Gingras’s trial to a challenge on ineffective assistance of
counsel grounds, given the similarities between this case and
Lanoue, 137 F.3d 656. In Lanoue, a criminal defendant chose the
same attorney who had represented a codefendant in an earlier
trial.
Id. at 663. The government moved to disqualify the
attorney because the government intended to call the previously
represented codefendant as a witness in the defendant’s trial.
Id. Despite the fact that both the codefendant and Lanoue had
“waived any right to conflict-free representation” and the
codefendant “submitted an affidavit” claiming that he had no
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information concerning the matters about which the government
proposed to have him testify, the court nevertheless disqualified
the attorney from representing Lanoue. Id. The court reasoned
that although the circumstances of the case represented the
“outer limits” of a potential conflict, it was necessary to
disqualify counsel because if a conflict did arise “the defendant
may not receive the representation to which he is entitled,
resulting in an ineffective assistance of counsel appeal.”
Id.
at 664.
This case is markedly different from Lanoue. In Lanoue, the
defendant apparently was represented by one attorney, the one
whose potential conflict might serve to deny him effective
representation. Here, however, Attorney Gordon will serve as co-
counsel to Gingras’s lead counsel, Attorney Weinberg. In the
event Bellavance is actually called as a government witness and
testifies, Gordon, as he fully informed both Gingras and
Bellavance, will neither participate in cross-examining
Bellavance nor consult with Attorney Weinberg regarding the
preparation of such cross-examination, nor will he reveal any
privileged information derived from his representation of
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Bellavance. Those limitations fully protect Bellavance, and will
not interfere with Gingras’s constitutional right to the
effective assistance of counsel. Attorney Weinberg, as lead
counsel, is entirely capable of providing effective
representation in all respects. To the extent Gordon provides
legal assistance to Gingras without compromising Bellavance’s
interests, as Gingras has agreed, Bellavance is not prejudiced
and Gingras is benefitted, and, of course, Gingras can lay no
claim to Gordon’s unfettered representation or to access to
privileged information Gordon may have obtained during his
representation of Bellavance. He has no right to either Gordon’s
representation, if it involves a conflict, nor to information
protected by the attorney-client privilege.
And, there is no appearance of impropriety of institutional
significance, two critical factors: 1 ) Gingras fully understands
and accepts the limitation on Gordon’s assistance, and 2 )
Attorney Weinberg is primarily responsible for and capable of
providing entirely independent and entirely conflict-free
representation.
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Of course, the defendant should be prepared to personally
respond, on the record, to relevant questioning by the court
related to these issues, prior to trial. But, assuming defendant
understands and accepts the limitation on Attorney Gordon’s
ability to serve, as seems established by the record,
disqualification will not be ordered.
CONCLUSION
Because the elements of N . H . R . P R O F . CONDUCT 1.9 are not
established, and because the circumstances do not pose a risk of
ineffective assistance of counsel, or any other threat to the
integrity of the trial process, the government’s motion to
disqualify Attorney Gordon (document n o . 33) is denied.
SO ORDERED.
Steven J . McAuliffe
United States District Judge
September 2 3 , 2002
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cc: Mark A . Irish, Esq.
Steven M. Gordon, Esq.
Martin G. Weinberg, Esq.
Kevin E . Sharkey, Esq.
Stephen T . Jeffco, Esq.
Thomas J. Butters, Esq.
U.S. Probation
U.S. Marshal
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