The opinion of the court was delivered by: MICHAEL B. MUKASEY
MICHAEL B. MUKASEY, U.S.D.J.
William M. Kunstler, Ronald L. Kuby and their law firm (collectively, the "Kunstler firm") now represent three defendants in this case -- Omar Ahmad Ali Abdel Rahman, Siddig Ibrahim Siddig Ali and Ibrahim A. El-Gabrowny. In addition, the Kunstler firm represented defendant El Sayyid Nosair when he was tried in the courts of the State of New York in 1991 on charges growing out of the murder of Meir Kahane and a subsequent assault, the same facts that underlie certain overt acts in Count One of the indictment, and Counts Five, Six, Eight, Nine and Ten. The government moves to disqualify the Kunstler firm from representing more than one defendant. It seeks also the imposition of certain prophylactic measures to assure that any client of the Kunstler firm understands his right to conflict-free representation, and that any former client of that firm understands the potential injury to his interest that could result from the disclosure of confidential information imparted to the Kunstler firm and nonetheless does not object to the Kunstler firm's representation of another client at trial.
The motion is granted for the reasons set forth below to the extent that the Kunstler firm will be permitted to represent either Abdel Rahman alone or El-Gabrowny and Siddig Ali together, on the terms set forth below, and is otherwise denied.
The history of this multiple representation, to the extent relevant, is as follows. El-Gabrowny was indicted initially in March 1993 in an indictment later superseded to charge several crimes in connection with an altercation between El-Gabrowny and a law enforcement officer seeking to execute a search warrant at that defendant's house in connection with the investigation into the bombing of the World Trade center. The indictment charged also that El-Gabrowny possessed forged travel documents in the name of Nosair, who was then in a state prison, and Nosair's family. That case was scheduled to be tried beginning August 2, 1993.
On July 14, 1993 that indictment was superseded to include charges that El-Gabrowny and ten other defendants, including Siddig Ali, had participated in a conspiracy to bomb various buildings and other real property. At a conference the following day, after the Kunstler firm appeared for both El-Gabrowny and Siddig Ali, I said I would conduct a hearing at a later date to determine that both defendants understood their right to conflict-free representation, and that in aid of such a determination I would appoint whichever attorneys from the panel of Criminal Justice Act ("CJA") attorneys were scheduled to receive cases that week, for the purpose of advising each defendant of that right independent of any advice received from the Kunstler firm. Kunstler objected, stating immediately in open court, without consulting either defendant, that, "they are perfectly willing to be represented here by me and they are here and they are willing to waive any alleged conflict of interest." (7/15/93 Tr. 17) He added that he did not want any CJA attorney "talking to either one of them." When I noted that neither defendant would be obligated to talk to independent counsel, but only to listen to an explanation of the risks of dual representation, Kunstler responded, "There are no risks here, Judge, except those created by the government." (Id. at 18)
Notwithstanding defense counsel's position, I appointed the two lawyers on duty to accept CJA appointment that day and a succeeding day to act as independent counsel to El-Gabrowny and Siddig Ali, to explain to them the hazards of joint representation, and to appear before the court on July 30, 1993 for a hearing pursuant to United States v. Curcio, 680 F.2d 881 and 694 F.2d 14 (2d Cir. 1982). Before the hearing, both defendants conferred with Kunstler and Kuby in the jury room adjoining courtroom 219. At the hearing, both defendants appeared and responded to questions without a translator. Both CJA lawyers appeared and reported that they had explained to the two defendants their right to conflict-free representation. The lawyer who had given the explanation to El-Gabrowny reported he was satisfied that defendant understood his rights, although the lawyer who had met with Siddig Ali could report only that she had explained the rights in question but expressed no view as to the level of Siddig Ali's understanding. (7/30/93 Tr. 3) Siddig Ali himself acknowledged that counsel had explained a possible conflict to him, and that he had told her, "I have no problem with my attorney representing me and another defendant at the same time." However, when asked whether CJA counsel had given any examples of possible conflicts, his response was, "not in detail." (7/30/93 Tr. 4)
I then offered three examples to each defendant of possible conflicts of interest that could arise: (i) the offer of a plea arrangement to one defendant but not to the other, (ii) a trial strategy or argument or line of examination that would help one defendant but hurt the other, and (iii) the compromise of confidentially imparted information by a lawyer representing more than one client. Both Siddig Ali (id. at 4-9) and El-Gabrowny (id. at 10-14) said they understood the examples. Both defendants acknowledged that they had no questions about what had been explained. (Id. at 15, 16) At one point Siddig Ali gave what sounded like a rehearsed answer only marginally responsive to a question posed by the court:
THE COURT: Understanding what I just explained, and after having consulted both with Mr. Kunstler and Mr. Kuby, and with Ms. Scolari [CJA counsel], do you want to continue in this case to be represented by Mr. Kunstler and Mr. Kuby?
DEFENDANT SIDDIG ALI: Your Honor, I would like you to know that I conceive fully that I will be represented by Mr. Kuby and Mr. Kunstler and that will never put me in any conflict with my co-defendant or any other co-defendants, because I believe that my co-defendant and myself are innocent people. My conflict is not with my co-defendant or with anybody else, but it is with the government, with the FBI, and with those people who are accusing me of doing things or saying things that I have not conspired or done.
(Id. at 16) This suggestion that claimed innocence overcame a potential for conflict would reappear later when Rahman, the third client of the Kunstler firm, made the same assertion at his Curcio hearing. See pp. 7, 8, infra. However, both defendants said they had understood the explanations of possible conflicts, and both expressed the desire to be represented by the Kunstler firm. (Id. at 16-17) The government and CJA counsel agreed that there were no additional questions that should be put to either defendant. (Id. at 9, 14)
On August 25, 1993, the grand jury returned a third superseding indictment adding four additional defendants including Rahman and Nosair. At arraignment the following day, Rahman was represented by Harry C. Batchelder, Jr., but by letter dated September 21, 1993 Batchelder informed the court that he could not reach a satisfactory fee arrangement with Rahman and would have to withdraw. By letter bearing the same date, Kunstler and Kuby informed the court that, "for some time, persons acting on behalf of" Rahman had asked them to assume his representation, and that on the night of September 20, "the Sheik [Rahman] was able to reach Mr. Kuby at home, by telephone, and formally requested that we assume representation."
On September 24, 1993, I directed Batchelder to meet with Rahman "to advise him as to his right to conflict-free representation." (9/24/93 Mem. and Order) Kunstler and Kuby responded the same day, notifying the court that they had met with Rahman at Otisville the previous day and had "explained the concepts of conflict-of-interest and waivers thereof," with the result that Rahman "again repeated his desire for us to represent him," but adding that they had "no objection" to the order directing that Batchelder confer with Rahman.
At a Curcio hearing for Rahman on October 15, 1993, Batchelder reported that he had consulted with Rahman the day before, that Rahman wished to be represented by the Kunstler firm, that he had explained to Rahman his Curcio rights, and that Batchelder was "professionally comfortable with the fact that he understands his rights to independent representation." (10/15/93 Tr. 2) From the outset of the hearing, Rahman, who speaks no English and gave his answers through a translator, responded in a way that conveyed more adamancy in his choice of lawyers than understanding of the possible conflicts of interest inherent in that choice:
THE COURT: Now, there are many conflicts of interest that can arise when a lawyer represents more than one client in the same case. If you are one of the clients of a lawyer who represents someone else or other people in the same case, those conflicts can hurt you and can wind up denying you the right to be represented by a lawyer who has only your interest at heart. Do you understand that?
DEFENDANT RAHMAN: I do know that very well. But I insist on having Mr. Kuby and Mr. Kunstler as ...