duty of confidentiality is imputed to all members of the
Lipsitz, Green firm, including Mr. Cambria. See Cheng, 631
F.2d at 1056; Fund of Funds, Ltd., 567 F.2d at 235-36;
Cinema 5, Ltd., 528 F.2d at 1387. There is a rebuttable
presumption that Mr. Cambria was exposed to confidential
communications made by Fortune to other members of the Lipsitz,
Green firm. See E-Z Paintr Corp., 746 F.2d at 1461; NCK
Org., Ltd., 542 F.2d at 134.
After considering the testimony at the hearing and reviewing
the submissions of the parties, the Court finds that Mr.
Cambria has rebutted the presumption that he was exposed to
confidential matters relating to Fortune. Mr. Cambria, Mr.
Greenman, Mr. Hoskins testified, and Mr. Murrett stated in an
affidavit, that Mr. Cambria never had any contact with matters
involving Fortune. The Court further finds, however, that
allowing Mr. Cambria to remain in this case would create an
unacceptable appearance of impropriety and possibly taint the
Mr. Cambria was, and still is, the senior partner and
supervising attorney of Lipsitz, Green's criminal department
and was Mr. Greenman's immediate supervisor while he was
representing Fortune. While Mr. Cambria did not directly
represent Fortune, he was indirectly responsible for Fortune's
representation. As head of Lipsitz, Green's criminal
department, Mr. Cambria sets the department's policies and
procedures and has ultimate supervisory control over all of the
firm's criminal cases, including Fortune's. As a partner in the
firm, Mr. Cambria shares in all client fees, including those
paid by Mr. Fortune. Thus, the Court finds that Fortune, as a
client of Lipsitz, Green's criminal department, should be able
to expect the same loyalty from Mr. Cambria as he expects from
Further, Lipsitz, Green has not, to this day, put in place any
sort of mechanism, such as a "chinese wall," to screen Mr.
Cambria from matters involving Fortune. While Mr. Greenman is
not actively involved in the instant case, the Lipsitz, Green
firm is a relatively small firm with an even smaller criminal
department. Despite Mr. Cambria's protestations, it is unclear
to the Court how disclosures, admittedly inadvertent, can be
prevented throughout the course of Mr. Cambria's representation
of Spano. Because of the small size of the criminal department
and the absence of a "chinese wall," there is a continuing
danger that Mr. Greenman may unintentionally transmit
information that he gained through his prior representation of
Fortune during his day-to-day contact with Mr. Cambria. See
Cheng, 631 F.2d at 1058.
Thus, the Court finds that, even though Mr. Cambria was not
exposed to any confidential communications regarding Fortune,
the appearance of impropriety created by his presence in this
case and the danger of inadvertent disclosure requires his
disqualification. See Cheng, 631 F.2d at 1058-59; Cinema 5,
Ltd., 528 F.2d at 1387; cf. Emle Indus., Inc., 478 F.2d at
565 (where public confidence in the Bar would be undermined,
"even an appearance of impropriety requires prompt remedial
action by the court.").
Lastly, the interests of the government and the public are the
same as they were in the Court's earlier analysis regarding
Fino. Both the government and the public have an interest in:
(1) a fair trial for Spano; (2) protecting witnesses from
unfair tactics; and (3) protecting Fortune's attorney-client
privilege. See James, 708 F.2d at 46. Further, the Court has
an interest in striving to keep its judgments intact on appeal.
Wheat, 486 U.S. at 161, 108 S.Ct. at 1698.
The Court notes a recent state court case involving Mr. Cambria
and a similar set of circumstances. In New York v. Liuzzo,
App. Div., 562 N.Y.S.2d 303 (N.Y.App. Div. 4th Dept. 1990), the
appellate court affirmed the trial court's disqualification of
Mr. Cambria and the Lipsitz, Green firm based on the firm's
prior representation of a government witness. In that case, Mr.
Cambria represented several defendants against charges arising
from a Department of Social Services audit. Mr. Cambria's firm
formerly represented a state Department of Social Services
auditor against allegations of misconduct in connection with
the same audit. The auditor was to be a key prosecution
The appellate court held that:
The duty of loyalty to a former client is broader than the
attorney-client privilege and an attorney is not free to attack
a former client with respect to the subject matter of the
earlier representation even if the information used in the
attack comes from sources other than the former client.
Although the [defendants] purported to waive any conflict of
interest and agreed that Cambria would limit cross-examination
of the [former client], who was expected to be a key
prosecution witness at trial, the [former client] did not waive
the conflict. The [former client's] right to Cambria's loyalty
cannot be waived by the [defendants]. The disqualification of
Cambria was a reasonable exercise of the trial court's
discretion, because an individual's right to counsel of his own
choice must yield to an overriding competing public interest.
The overriding public interest here is the court's duty to
protect the integrity of the justice system and preserve the
ethical standards of the profession.
Id. at 304 (citations omitted). While the Court is not bound
by this decision, it finds the Liuzzo decision persuasive
because state and federal courts apply the same ethical
standard, the Code of Professional Responsibility.
In sum, the Court finds that after weighing the interests of
the defendant, the witness, the government and the public,
there exists a serious potential for conflict based on Lipsitz,
Green's prior representation of Fortune. Thus, the Court grants
the jointmotion to disqualify Mr. Cambria and Lipsitz, Green.
The Court notes that Lipsitz, Green's prior representation of
Fortune provides an independent ground for disqualifying Mr.
Cambria. When combined with Mr. Cambria's prior representation
of Fino, however, it leaves no doubt that disqualification is
warranted in this case.
The government has also moved to disqualify Mr. Cambria and
Lipsitz, Green based on the fact that a current member of the
Lipsitz, Green firm, Mr. Mistrett, was formerly an AUSA who
assisted LaRosa with his admission into the Federal Witness
Protection Program. DR 9-101(B)(2) provides that:
A lawyer having information that the lawyer knows is
confidential government information about a person, acquired
when the lawyer was a public officer or employee, may not
represent a private client whose interests are adverse to that
person in a matter in which the information could be used to
the material disadvantage of that person. A firm with which
that lawyer is associated may knowingly undertake or continue
representation in the matter only if the disqualified lawyer is
effectively screened from any participation, direct or
indirect, including discussion, in the matter and is
apportioned no part of the fee therefrom.
After considering the testimony at the hearing and reviewing
the submissions of the parties, it is unclear to the Court
exactly what information Mr. Mistrett learned during his
contact with Fortune while at the United States Attorney's
Office and whether Lipsitz, Green has taken any active measures
to screen Mr. Mistrett from any contact with this case. In
light of the Court's decision regarding Fino and Fortune,
however, the Court need not decide the government's motion with
regard to Mr. Mistrett's prior relationship with LaRosa.