118, Local 231, the Local 118 Pension Fund, and the Local 118 Welfare Fund. See id. Ex. C-F. His firm also withdrew on this date as counsel for all purposes with respect to Joint Board 18. See id. Ex. B. At the time of its withdrawal, Mr. Haydon's firm was representing Joint Board 18 in a matter pending before the Workers Compensation Board. See id. at 4. Haydon does not assert, however, that his firm has withdrawn from representing the Local 231 Welfare Fund. See id.
Defendant Isaacson has submitted to the Court an affidavit requesting that Mr. Haydon and his law firm remain as his counsel, and waiving his right to be represented by counsel free of any potential conflicts of interest. See id. In addition, on April 19, 1994, Isaacson affirmed a voluntary, knowing waiver of this right before the Court. Subsequently, at a hearing held on April 22, 1994, the Government declined the opportunity to question possible witnesses to ascertain any actual conflicts of interest that would arise.
Despite Isaacson's waiver of his right to be represented by counsel free of any potential conflicts of interest, the Government continues to assert that Mr. Haydon and his law firm should be disqualified from representing Isaacson in the instant criminal prosecution. The Government argues that under Wheat v. United States, 486 U.S. 153, 160, 100 L. Ed. 2d 140, 108 S. Ct. 1692 (1988), the Court should disqualify defense counsel, notwithstanding the defendant's waiver, because the prejudice to the defendant cannot be predicted accurately, and the appearance of impropriety is so great as to make acceptance of the waiver intolerable.
In his opposition papers, Mr. Haydon seeks to rebut the Government's argument by emphasizing the unlikelihood that any actual conflict of interest will come to fruition during the course of the trial. Mr. Haydon asserts that in representing Isaacson at trial, he has no intention to cross-examine in an adversarial context any representative of any of the unions or entities that his firm has previously represented. See Haydon Aff., at 5. He further asserts that there is no secret or confidential information that his firm has obtained through its representation of the entities in question that is not known to Isaacson. Haydon moreover contends that, in any event, there is no need to cross-examine any witness from any of these entities because, as he asserts, the Indictment focuses principally "upon what happened to a portion of the money received by a contractor who had been hired to make repairs." Defendant's Opp. Mem., at 1 (E.D.N.Y. Apr. 11, 1994).
The Sixth Amendment to the Constitution guarantees the accused the right to the assistance of counsel in all criminal prosecutions. See Wheat v. United States, 486 U.S. 153, 158, 100 L. Ed. 2d 140, 108 S. Ct. 1692 (1988). The purpose of this right is "to ensure that criminal defendants receive a fair trial." Id. at 159 (internal quotations omitted). Accordingly, "in evaluating Sixth Amendment claims, the appropriate inquiry focuses on the adversarial process, [and] not on the accused's relationship with his lawyer as such." Id. (internal quotations omitted). "Thus, while the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the 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." Id.
Consequently, the Sixth Amendment right to choose one's own counsel is not absolute. See id. at 159-60; United States v. Locascio, 6 F.3d 924, 931 (2d Cir. 1993), cert. denied, 114 S. Ct. 1645-46 (1994); United States ex rel. Stewart v. Kelly, 870 F.2d 854, 856-58 (2d Cir. 1989); see also United States v. Arrington, 867 F.2d 122, 128-29 (2d Cir.) (affirming district court's disqualification of defendant's attorney despite defendant's consent to representation) cert. denied, 493 U.S. 817 (1989). As the Supreme Court has noted, a criminal defendant's right to counsel of his or her choice may be subordinated to other policy concerns where, for example, the prospective advocate is not a member of the bar, the attorney declines to represent the defendant, the attorney has a prior or ongoing relationship with an opposing party, or where the attorney represents codefendants in a multidefendant criminal prosecution. See Wheat, 486 U.S. at 159-60.
See also Locascio, 6 F.3d at 933-34 (disqualification appropriate to prevent an unfair detriment to the government where possibility existed that house counsel to the Gambinos would function in his representational capacity as an unsworn witness for the defendant); Arrington, 867 F.2d at 129 (disqualification appropriate where the chosen counsel is implicated in the allegations against the accused and could become an unsworn witness for the accused).
While the Sixth Amendment creates a presumption in favor of allowing a criminal defendant to retain his counsel of choice, see Wheat, 486 U.S. at 160, a federal district court has "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. See United States v. Rogers, 9 F.3d 1025, 1032 (2d Cir. 1993) (A district court has the authority to insist that a defendant be represented by counsel free of any conflicts of interest.), petition for cert. filed, No. 93-8308 (U.S. Feb. 25, 1994). Particular concern imbues where the court is able to foresee conflicts of interest that may arise through the attorney's prior or concurrent representation of a witness with interests adverse to the criminal defendant. In such circumstances, the attorney may be unable within ethical boundaries to provide a vigorous cross-examination of her former client because, by so doing, she might elicit confidential facts learned through the attorney-client relationship. This would present an untenable "catch-22" to the attorney, because if she restrains from cross-examining the witness in a meaningful way, she then would fail to provide the criminal defendant with adequate assistance of counsel. See Kelly, 870 F.2d at 857.
Thus, a district court is "allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses."
Wheat, 486 U.S. at 163. Ultimately, the determination of whether to disqualify an attorney for a potential conflict of interest is vested in the sound discretion of the district court, and a careful "evaluation of the facts and circumstances of each case" is warranted to determine whether a showing of a serious potential for conflict may overcome the presumption in favor of retaining the criminal defendant's counsel of choice. Id. at 164. See Locascio, 6 F.3d at 935 ("Disqualification is a drastic measure, [and] the district court is in the best position to evaluate what is needed to ensure a fair trial.").
Turning to the merits of the Government's motion, the Court finds that the facts and circumstances of the instant case do not warrant the disqualification of defendant's chosen counsel at this juncture of the proceedings. The Court regards three factors in particular to weigh heavily in its analysis.
First, the contested factual allegations within the Indictment implicating the defendant focus principally upon conduct external to the entities that were formerly represented by his counsel's law firm. The Government's case against Isaacson concentrates chiefly upon what happened to a portion of the payments received by a contractor that had been hired by a union to make repairs to a union-owned building. The principal allegations in dispute with respect to Isaacson are (i) whether he conspired to receive kickbacks from the contractor, (ii) whether he ultimately did receive such kickbacks from the contractor, and (iii) whether he knowingly sought to obstruct law enforcement investigation of the alleged scheme. In contrast, Isaacson, speaking through his counsel, has indicated that he will not dispute the fact that payments were made to the contractor in accordance with the details set forth within the Indictment. See Defendant's Opp. Mem., at 2 (E.D.N.Y. Apr. 11, 1994). This would seem to diminish the potential for an actual conflict of interest.
Further, the relative sparsity of information concomitant to the early pretrial setting does not permit the Court to engage in the rigorous analysis necessary to justify the disqualification of defendant's chosen counsel at this time. The Court has not been provided with a summary of the expected testimony of prospective witnesses by either the Government or by Isaacson's counsel, and therefore has not been permitted the opportunity to evaluate fully whether a serious potential for conflict exists. In addition, it is equally unclear whether any potential conflicts would be eliminated through the parties' stipulations of fact.
Moreover, Isaacson's counsel has presented evidence showing that it has ceased to represent all but one of the entities referenced in the Indictment of which the defendant either was a fiduciary, or is alleged to have embezzled funds. To reduce the likelihood of conflict, the Court will require Mr. Haydon's law firm to withdraw from representing the last of these entities, and shall order it to file an affidavit attesting that it is not owed any unpaid amounts by any of the entities in question.
These precautionary measures, viewed in tandem with the other factors discussed above, lead the Court to conclude at this juncture that the presumption in favor of retaining the defendant's counsel of choice has not been overcome. See Wheat, 486 U.S. at 164 ("The District Court must recognize a presumption in favor of [a criminal defendant's] counsel of choice . . . .").
The Government's motion to disqualify defendant Isaacson's counsel is denied without prejudice to reapply at a later date. As a condition to its continued representation of defendant Isaacson in the instant case, the law firm of Dublirer, Haydon, Straci & Victor, by Charles Haydon, Esq., shall file with the Court, within seven days of the docketing of the instant Memorandum and Order, a copy of the firm's letter withdrawing as counsel to the Local 231 Welfare Fund. By the same date, Mr. Haydon shall also file with the Court an affidavit attesting that the law firm of Dublirer, Haydon, Straci & Victor no longer represents, in any capacity, any of the unions or funds named in the Indictment, and that the same law firm is not owed any legal fees or compensable expenses by any of these named entities.
Joanna Seybert, U.S.D.J.
Dated: Brooklyn, New York
May 26, 1994