The opinion of the court was delivered by: BRODERICK
Defendant Norman Turkish has moved for dismissal of the indictment against him or for suppression of evidence, claiming that the attorneys who represented him in the investigatory phases of this case had a conflict of interest, that he did not waive any rights to object to the conflict, and that the government exploited the conflicted position of his prior attorneys.
An evidentiary hearing was held before me on July 12 through 14, 1978. On the basis of the evidence (or lack thereof) adduced at the hearing, I have determined that defendant's motion should be denied. This memorandum sets forth the reasons for that denial.
In June, 1976 the New York County District Attorney initiated an investigation ("the investigation") into the Crude Oil Market on the Cotton Exchange.
Bear Stearns & Co. ("Bear Stearns") is a company which, Inter alia, acts as broker and dealer in the trading of commodities futures. In connection with the investigation, a grand jury subpoena duces tecum was served upon Bear Stearns in August, 1976; the subpoena called for the production of certain records relating to trades in the Crude Oil Market.
Turkish is a limited partner of Bear Stearns, and he specializes in commodities futures. The law firm of Paul, Weiss, Rifkind, Wharton & Garrison ("Paul Weiss") was retained by Bear Stearns in August, 1976 and represented Bear Stearns and various Bear Stearns employees, including Turkish, throughout the investigations by the District Attorney and the United States Attorney's office.
On April 13, 1978 indictments were filed against Turkish and others in New York County and in this court. The federal indictment charged him with conspiracy to defraud the United States, evasion of income tax and filing of false tax returns.
When Turkish was indicted, Paul Weiss suggested to him that he obtain new counsel and actively assisted him in a painstaking search, recommending to him, among others, the attorneys who represented him in making this motion.
The United States Attorney's Office used before the federal grand jury and plans to use at trial evidence obtained by the District Attorney, in addition to evidence obtained through its own investigation begun in February, 1978.
Turkish's motion arises out of the representation by Paul Weiss during the investigations not only of Turkish but also of Bear Stearns and other Bear Stearns employees. Turkish contends that the multiple representation violated Canon 5 and related rules of the American Bar Association's Code of Professional Responsibility (as amended 1976) ("the Code") in that Paul Weiss had a conflict of interest in its multiple representation.
He further contends that the District Attorney
and the government exploited his attorneys' allegedly conflicted position.
In the criminal context multiple representation is always troubling. After indictment the situations will be rare indeed where conflict of interest does not exist, whether or not it has yet become apparent. See, e.g., Salomon v. LaVallee, 575 F.2d 1051, 1053 (2d Cir. 1978), "the perils of joint representation for co-defendants at trial have become increasingly clear." Before indictment the potential for conflict is always there although identification of the areas of ...