The opinion of the court was delivered by: SAND
The following will constitute the court's opinion granting the Government's motion to disqualify the law firm of LaRossa, Axenfeld & Mitchell (previously LaRossa Brownstein and Mitchell) from representing the defendant, Christopher Uzzi, in this case. According to the Government Michael Ross, an associate of that firm, participated in this case in its investigatory phase when he was employed as an Assistant United States Attorney. The Government contends that Canon 4 (which requires a lawyer to "preserve the confidences and secrets of a client"), Canon 5 (which prohibits conflicts of interest), and Canon 9 (which decries the "appearance of impropriety") of the American Bar Association Code of Professional Responsibility should disqualify the entire firm based on Mr. Ross' prior representation of the Government.
In support of its contention that the entire firm is disqualified, the Government cites Disciplinary Rule 5-105(D) which provides: "If a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner, or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment."
The law firm attempts to justify its refusal to disqualify itself voluntarily by arguing that Mr. Ross' knowledge of this case acquired as an Assistant United States Attorney is too insubstantial to warrant his disqualification and that the firm's willingness to screen Mr. Ross from any participation in the case should be sufficient to dispel any questions about the appropriateness of the firm's representation of Mr. Uzzi.
The facts in this case are, in all relevant aspects, undisputed. See Memorandum of Law in Opposition to the Government's Motion to Disqualify which we hereafter refer to as the Defendant's Memorandum, at page 2. The Government submits the affidavits of Assistant United States Attorney Robert S. Litt and a former Assistant United States Attorney, Scott W. Muller, setting forth the facts as summarized below.
Mr. Muller was assigned this case in October 1980. At that time, his role involved the supervision of an undercover FBI investigation of extortion of money from Toys "R" Us, Inc. Mr. Muller states that he had "a close personal relationship with Michael Ross," who occupied the office next to his. Muller Affidavit at paragraph 4. Muller often discussed this case with Ross; he sought and received Ross' advice on "various legal issues . . . (which) might be raised by the defense (,) . . . possible ways the Government could develop additional evidence (,) . . . certain tactical issues that (came up) in the handling and timing of the undercover investigation (,) . . . (and the sufficiency of) an application for an electronic surveillance search warrant." Id. at paragraph 6. In addition, Ross "formally represented" the Government in this case in December, 1980, when he "obtained a sealed pen register order," and in June 1981, when he "issued a subpoena . . . for telephone toll records." Id. at paragraph 8.
Mr. Litt states that in the course of his communications with the law firm with respect to the possible disqualification he was told by Paul B. Bergman, a member of the firm, that the firm intended to screen Mr. Ross from substantive contact with the case and that this precaution would be sufficient in view of the fact that Ross "never had "administrative or supervisory responsibilities' for the investigation and had no recollection of "any substantive aspect" of the case." Litt Affidavit at paragraph 5. Litt also states that Ross has told him "that he has very little recollection of his conversations with Mr. Muller, but . . . that he has no reason to doubt that Mr. Muller's recollection of their discussions is accurate." Id. at paragraph 5 n. *.
The law firm has submitted the affidavits of Michael S. Ross, Paul B. Bergman and Christopher Uzzi. Mr. Ross states that when he was an Assistant United States Attorney he "was often consulted by other Assistants concerning cases which were assigned to them and which were either in the investigatory stage or were in their post-indictment phase. Particularly, near the end of my tenure in the office, I was, by reason of my seniority, frequently asked questions by other assistants about tactics, both at the investigatory and trial levels, legal questions and other matters which might properly be denominated confidential, at least at the time at which they were discussed. Those discussions were informal and part of the give and take in the office. Similarly, I would consult by colleagues concerning investigations that I was directly involved with the discuss, also in a sort of brainstorming method, matters of tactics and strategy, legal concepts and so forth. Names of particular targets or witnesses were normally not mentioned, not because anyone was purposely avoiding the mention of names but simply because the identity of any particular individual was usually irrelevant to the discussion. In a word, I am talking about "skull" sessions with other Assistants of which there were many." Ross Affidavit at paragraph 3. He adds that it was also his practice "when requested by an Assistant who was out of the office, (to) sign off on various pro forma subpoenas sign off on various pro forma subpoenas and letters," id. at paragraph 4, and that he may have performed such acts in this case, id. at paragraph 7.
Ross states that when he first read the complaint in this case he "realized that I had had some minor contact with this case while I was an Assistant . . ." and remembered that his "close friend in the office, Scott Muller, had been involved in an investigation concerning Toys "R" Us and that we had talked about it from time to time." Id. at paragraph 5. When he discovered that one of the defendants was to become a client of the firm, he informed the senior partner that "although I could barely remember even discussing the case with Scott Muller, much less what we had talked about, it might be best if I had nothing to do with the defense of Mr. Uzzi. . . ." Id. Ross does not remember any details of information that might have been conveyed to him, it. at paragraph 5, but does not doubt that Mr. Muller's recollection is correct, id. at paragraph 6.
Mr. Bergman notes that Ross had no supervisory responsibility and that he "has been completely isolated from involvement in all aspects of Mr. Uzzi's defense." Bergman Affidavit at paragraph 7. He also attempts to dispute the inference that such isolation will be difficult in an eleven-attorney firm by noting that the size of his firm is in fact usually large for a firm specializing in criminal defense work. Id. at paragraph 9. He notes, too, that Ross has not divulged any confidences to anyone in the firm and that, since he remembers no such confidences, he could not do so.
The defendant Uzzi recounts that he decided to hire the LaRossa firm because he believed LaRossa to be "the best criminal defense attorney in New York and because his form, by its size and because of its experience, is equipped to prepare for federal criminal trials." Uzzi Affidavit at paragraph 2. He did not know anything about Mr. Ross, and thus did not choose the firm in order to gain access to government secrets and confidences. Id.
The Court finds the documentation submitted to provide sufficient ground upon which to base its decision. All of the facts which the Court may properly consider on this motion under the applicable law are undisputed as the discussion below will show. The Court therefore rejects the suggestion contained in Defendant's ...