The opinion of the court was delivered by: BONSAL
On October 26, 1982 an indictment was filed charging the defendants Frank James and Wallace Rice with violations of Federal narcotics laws. By superseding indictment filed January 11, 1983, two additional counts were lodged against the defendant Frank James, charging him with possession of approximately 1.12 grams of cocaine and with receiving a firearm which had been shipped and transported in interstate commerce. Both defendants are represented by the firm of Goldberger, Feldman, Dubin & Weisenfeld, P.C.
A pretrial conference was held on December 13, 1982 to consider discovery and other problems. At this conference the government submitted a letter addressed to the court, dated December 10, 1982, designed to bring the court's attention to "serious problems presented by the continued representation of the defendants Frank James and Wallace Rice by the law firm of Goldberger, Feldman, Dubin & Weisenfeld, P.C." (hereinafter, "the Goldberger firm"). The government first contended that it was inappropriate for both defendants to be represented by the Goldberger firm. This claim was the subject of a hearing held on December 13, 1982, in the course of which the court informed the defendants of the risks of being represented by attorneys belonging to the same firm. Various conflicts of interest that might arise were related to the defendants by the court and their right to waive conflict-free representation was explained. At a hearing on December 17 each of the defendants stated to the court that he had carefully considered the matters raised by the court at the December 13 hearing. James then stated that he wished to continue to be represented by Goldberger, and Rice stated that he wished to continue to be represented by Feldman. Defendant Rice stated that he had consulted an independent attorney, who advised him to stay with Feldman.
The second arm of the government's application to disqualify the Goldberger firm involves Leroy "Nicky" Barnes. In a well-publicized trial before Judge Werker in 1977, Barnes was convicted of narcotics violations and sentenced to life imprisonment. Barnes is now cooperating with the government and the charges against James and Rice are based, at least in part, on information furnished by Barnes. At Barnes' trial, he was represented by the firm of Breitbart, Goldberger & Feldman (hereinafter, "the Breitbart firm"). Following the Barnes trial, Breitbart withdrew from the firm and Goldberger and Feldman formed what is now the Goldberger firm. At the Barnes trial, Goldberger (James' attorney in the present case) and Feldman (Rice's attorney) each represented co-defendants of Barnes.
On December 29, 1982, the government filed a formal motion to disqualify the Goldberger firm from further representation of the defendants. Argument on this motion was heard on January 11, 1983, at which time the Goldberger firm advised the court that each of the defendants intended to assert a defense of entrapment at the trial and, in connection with that defense, intended to call Barnes as a witness. Barnes' attorney, Howard Jacobs,
appeared at the argument and referred the court to his letter, dated January 5, 1983, stating that Mr. Barnes desired to join in the government's motion to disqualify the Goldberger firm from further representation of the defendants, "based upon the prior attorney-client relationship between Mr. Barnes and Goldberger, Breitbart & Feldman."
In its motion, the government presented the following factual material regarding the Goldberger firm and its members. For the most part, the facts have been conceded by the Goldberger firm. The affidavits submitted by the government catalogue a long list of cases involving Barnes, James, Rice and others in which Goldberger and/or Feldman provided legal representation to one or more defendants. The government alleges that Goldberger and Feldman often participated in trials at which Barnes was a defendant, either representing a co-defendant -- as at Barnes' 1977 federal narcotics trial -- or substituting for their partner Breitbart at pretrial proceedings. As a result, the government contends, both Goldberger and Feldman were privy to confidential information regarding Barnes on a number of occasions.
The government's affidavits allege that, at the federal trial involving Barnes and 10 co-defendants, there was a coordinated defense strategy and that Breitbart, Goldberger, and Feldman conferred regularly during the trial. Villano Affidavit at paragraph 4 and Romano Affidavit at paragraph 5. In connection with a narcotics case in New York County, the Breitbart firm represented Rice and three co-defendants and each partner spoke on behalf of all four defendants at one time or another; Barnes, who was investigated but not indicted, was represented by Breitbart. Villano Affidavit at paragraph 6. In another state trial in New York County, involving weapons and drug charges, Barnes was represented by Breitbart but Goldberger and Feldman were allegedly present in the courtroom and conferred with Breitbart there. Id. at paragraph 7 and Neugarten Affidavit at paragraph 5. Breitbart also represented Barnes at a murder trial in Bronx County, Goldberger appearing for him at various bail hearings. Neugarten Affidavit at paragraph 4.
On other occasions, according to the government, attorneys from the Breitbart and Goldberger firms regularly substituted for one another at proceedings concerning Rice and James. In an attempted murder case in New York County that was dismissed in June, 1976, Rice was represented by Goldberger but Feldman spoke on his behalf at least once during the proceedings. Villano Affidavit at paragraph 9 and Neugarten Affidavit at paragraph 6. More recently, Lawrence Dubin, a partner in the Goldberger firm, represented Rice at a state parole violation hearing on November 18, 1982 (Neugarten Affidavit at paragraph 8) and also represented James at a Nebbia hearing before Magistrate Buchwald on December 22, 1982.
The government alleges that members of the Breitbart and Goldberger firms have had social, as well as professional, contacts with Rice, James and Barnes. Assistant United States Attorney Romano states that, in the course of investigating another case involving Barnes' drug-trafficking organization, he learned that a birthday party was given on October 15, 1976 for James and Barnes. Rice and several of Barnes' co-defendants at his 1977 federal trial were present. Photographs obtained in a court-authorized search apparently show that Feldman and Breitbart were also there. Romano Affidavit at paragraphs 2, 3 and 4.
Finally, Assistant United States Attorney Neugarten alleges in her affidavit that defendant Rice faces potentially more severe punishment as a result of the pending charges against him than does James. It appears that he was on state parole in connection with a 5 1/2 year-to-life sentence at the time of his arrest. If he is found to have violated parole, he may incur a much longer prison term on his state sentence. Rice also faces a stiffer sentence on the pending charges because the government plans to file an information charging him with being a previously convicted federal narcotics offender. (21 U.S.C. § 851.) Neugarten Affidavit at paragraphs 8 and 9.
The answering affidavits submitted by Goldberger and Feldman do not dispute the substance of these allegations. Feldman states that he agrees with "the factual recitations" contained in the government's affidavits. Goldberger denies having a social relationship with Barnes but admits that he appeared for Barnes at a bail hearing in Bronx County, that he "did on occasion discuss pending cases of Barnes with Breitbart," that there were "some discussions about trial strategy among the counsel retained" by the defendants at Barnes' 1977 federal trial, and that he "conferred with Breitbart, Feldman and Barnes" during that trial.
We discuss first the government's contention that the Goldberger firm must be disqualified because of the Breitbart firm's former representation of Barnes, whom the defense intends to call as a witness.
The principal danger posed by the Goldberger firm's continued representation of James and Rice is that questions directed to Barnes at trial may be based on information acquired by Goldberger and Feldman through their former attorney-client relationship with him. James and Rice have both been informed of the risks ...