office. The government asserts that Salmaggi will be a
critical witness at trial. Wall is currently defending Benefit
Management Services, Rendezvous Records, and the defendant in
a related civil RICO proceeding, Radutzky v. Wallert, No.
87-4340 (EHN), 1988 WL 142666. Other facts are stated in the
Retaining counsel of choice is "a right of constitutional
dimension." See U.S. v. Arrington, 867 F.2d 122 (2d Cir. 1989),
citing United States v. Wisniewski, 478 F.2d 274, 285 (2d Cir.
1973). However, the right is not absolute. As the Supreme Court
has recently stated, "the essential aim of the [Sixth]
Amendment is to guarantee an effective advocate for each
criminal defendant rather than to ensure that a defendant will
inexorably be represented by the lawyer whom he prefers." See
Wheat v. U.S., 486 U.S. 153, 108 S.Ct. 1692, 1697, 100 L.Ed.2d
140 (1988). While there is a "presumption in favor of counsel
of choice," 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." Id. Thus, the court must
"balance the defendant's constitutional right against the need
to preserve the highest ethical standards of professional
responsibility." See United States v. Cunningham,
672 F.2d 1064, 1070 (2d Cir. 1982).
Defendant desires to retain Wall as counsel and is willing
to waive any right to claim Wall has a conflict of interest.
Wall has served as defendant's attorney since 1983, has
defended him in, among other matters, a successful appeal of
a criminal conviction, the subsequent retrial, and a civil
lawsuit related to the criminal matter, and is familiar with
the facts of the present case.
The government presents several grounds for disqualifying
Wall as counsel for defendant. It says Wall is a witness
either sworn or unsworn to defendant's alleged fraud on the
Bank. He also formerly represented the co-conspirator
Salmaggi, an important government witness, who will have a
materially adverse interest from the defendant in this case.
Wall is currently representing the partnership of defendant
and Salmaggi as well as Rendezvous Records in a related civil
RICO case which may materially limit Wall's ability to fully
represent the defendant, especially if Salmaggi does not agree
to waive the attorney-client privilege. Finally, Wall is
subject to a protective order in the civil case and will be
unable to abide by the order if he represents the defendant.
The Model Code of Professional Responsibility, although
lacking the force of legislation, provides guidance on issues
of professional conduct. Armstrong v. McAlpin, 625 F.2d 433,
446 n. 26 (2d Cir. 1980) (en banc), vacated on other grounds,
449 U.S. 1106, 101 S.Ct. 911, 66 L.Ed.2d 835 (1981). The Code
provides that when a lawyer "may be called as a witness other
than on behalf of his client, he may continue the
representation until it is apparent that his testimony is or
may be prejudicial to his client." DR 5-102(B), New York
Judicial Law (Appendix).
Because the loan application lists Wall as counsel for the
purchaser and the loan settlement statement shows payment to
Wall of $10,000 as an attorney fee, an inference is raised
favorable to the defendant that he filed the application on
the advice of counsel. Thus, Wall "may be called as a witness"
by the government to explain his involvement and rebut this
Wall claims that he will testify that he neither knew of the
"details" of the loan application nor gave any advice
regarding the application. The government may wish to accept
this testimony as true or to challenge it and suggest Wall was
involved in the allegedly fraudulent act.
If Wall testifies that he was never consulted with respect
to the loan, the government would be entitled to examine him
in detail as to his previous representation of defendant in
other matters both civil and criminal. The purpose of that
would be to raise the inference that defendant had confidence
in Wall's ability and yet did not wish to reveal the
fraudulent nature of the transaction to his trusted counselor.
The government could also question Wall about his
"brokering" of the sale, including what information he
conveyed that interested the defendant in looking at the
house. In addition, Wall might be questioned whether he was
paid by Rizzo, not the defendant, for representing the
defendant in 1983, or whether defendant substantially
underpaid him for legal work Wall did in 1984.
Some, perhaps all, of this would be "prejudicial" to the
defendant. To be prejudicial, the projected testimony of a
must be sufficiently adverse to the factual
assertions or account of events offered on behalf
of the client, such that the bar or the client
might have an interest in the lawyer's
independence in discrediting that testimony.
Furthermore, the moving party bears the burden of
demonstrating specifically how and as to what
issues in the case the prejudice may occur and
that the likelihood of prejudice occurring is
See Lamborn v. Dittmer, 873 F.2d 522, 531 (2d Cir. 1989)
The projected testimony would suggest that defendant had
falsified information on the loan application. If the jury
believed Wall's testimony, it might well wonder what the
defendant was hiding by not discussing the application with
Wall, his counsel on other legal matters. If, on the other
hand, the government established the inference that Wall was
not credible and was colluding with the defendant to defraud
the bank, Wall's effectiveness as advocate would be severely
tarnished and the defense markedly diminished.
Further, Wall's testimony about being underpaid by the
defendant would support the inference that defendant was in
severe financial straights during 1983 and 1984, damaging
evidence of motive for taking kickbacks during this period.
Wall's projected testimony is thus "sufficiently adverse" to
defendant's assertion of innocence to raise ethical concerns.
Because the testimony goes to material aspects of the
government's case, the prejudice would be "substantial." As an
important government witness and an advocate for the
defendant, Wall would assume a role that could cause the
erosion of the "public confidence in the integrity and
efficiency of the legal system and the legal profession." EC
9-2, New York Judiciary Law (Appendix).
Moreover, this court must be concerned not merely with
defendant's desire to have a particular attorney represent
him, but also with the fair administration of justice. By
permitting Wall to appear as trial counsel for defendant the
court would put the government in potentially a "no-win"
position. If it did not call Wall as a witness, the inference
would be that the loan transaction was proper because approved
by him. If it called Wall as a witness, the jury might well be
offended by a searching examination as to his knowledge of the
transaction and as to his previous and pending representation
of defendant in other matters.
Wall has proposed to stipulate to lack of involvement in the
loan application. This would both foreclose the government
from suggesting Wall's involvement in the fraud and limit the
full development of the events leading up to the filing of the
application. The government need not "settle for less than its
best evidence." See United States v. Cortellesso, 663 F.2d 361,
363 (1st Cir. 1981).
In any event, almost inevitably, Wall would be considered an
unsworn witness. He will have to explain on summation the
nature of his representation or lack of representation of the
defendant during the transaction. He will have to explain why
the defendant had no financial incentive to receive kickbacks
in 1984 although he either underpaid Wall or paid him nothing
for legal services. The government would be unfairly
prejudiced. See United States v. Cunningham, supra, 672 F.2d at
Defendant has also offered to waive his right to conflict
free counsel. However,
waiver would hardly ensure that the trial could be "conducted
within the ethical standards of the profession" and "appear
fair to all who observe them." Wheat, supra, 108 S.Ct. at 1697.
Nor would it prevent the government from being prejudiced.
Wall's role as advocate would lend immediate credibility to
Wall's testimony as a witness, and the government might feel
compelled to restrain its examination of Wall, fearing the jury
would find aggressive examination of opposing counsel to be
The court has considered the government's other arguments
and finds they pose additional possibilities for conflict. The
court is convinced that the government is not "manufactur[ing]
a conflict in order to prevent a defendant from having a
particularly able defense counsel at his side." See Wheat,
supra, 108 S.Ct. at 1699. The government's motion is granted,
and Wall disqualified as trial counsel. He may, however,
participate in the defense provided he does not appear at trial
and is not identified as counsel of record.
Defendant is instructed to find new trial counsel within 20
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