The opinion of the court was delivered by: MICHAEL B. MUKASEY
MICHAEL B. MUKASEY, U.S.D.J.
The government, as it was required to do by United States v. Levy, 25 F.3d 146, 152 (2d Cir. 1994) and its precursors, see United States v. Iorizzo, 786 F.2d 52, 59 (2d Cir. 1986), has moved to disqualify William M. Kunstler and Ronald L. Kuby and their firm, Kunstler & Kuby, (collectively, "the Kunstler firm" or "the firm") from representing at trial their remaining client in this case, defendant Ibrahim A. El-Gabrowny, and from resuming their representation of defendant Siddig Ibrahim Siddig Ali. As set forth below, there are two insuperable obstacles to the Kunstler firm's continued representation of El-Gabrowny or its renewed representation of Siddig Ali that arise from the firm's relationships with defendants and potential witnesses in this case and from the conduct and statements of Kunstler and Kuby: (i) the tangle of conflicting interests that beset the Kunstler firm, because of both past multiple representation of clients and the Kunstler firm's own conduct, that could hamper effective representation of El-Gabrowny and Siddig Ali, and (ii) the substantial possibility that conduct by the Kunstler firm will be the subject of relevant proof at trial, with the result that both Kunstler and Kuby would be cast as unsworn witnesses if they were to take an active role in the courtroom at trial. Therefore, the motion is granted.
The immediate occasion for this motion, although by no means the only reason for it, was the stated decision in June by Siddig Ali to cease being represented by the Kunstler firm, obtain other counsel, and cooperate with the government. In his initial contact with the government preceding this stated decision, and throughout his later proffer sessions with the government, Siddig Ali was represented by Howard Leader, an attorney he had selected and contacted on his own and who is a member of this Court's panel of assigned counsel. (6/21/94 Tr. 6-7) In Siddig Ali's presence, and with his concurrence, Leader was appointed to represent him. (Id. at 13)
Although the government has not said so explicitly, it has at least implied that Siddig Ali's proffer agreement with the government, reached at the time he disclosed to the court his decision to cooperate, provides, as such agreements routinely do, that although disclosures during proffer sessions may not be used against him on the government's direct case even absent a final cooperation agreement, they may be used against him if, absent such a final agreement, he testifies at trial in a manner inconsistent with those disclosures. (See 8/17/94 Gov't Ltr. at 3 (arguing that if Siddig Ali contradicts statements to the government "he will be vigorously cross-examined regarding them"))
After several weeks of Siddig Ali's proffers, and after the disqualification motion was fully submitted, the government on August 12 notified the court and all defense counsel that it would not conclude any cooperation agreement with Siddig Ali but that it nonetheless would press its motion to disqualify the Kunstler firm. On August 15, Siddig Ali and Leader appeared in court with government counsel. Leader disclosed that he had been present "at every single debriefing that has occurred between my client and the government." (8/15/94 Tr. 4) He also confirmed that Siddig Ali would not plead guilty and cooperate but rather would go to trial. (Id.) Leader asked to be relieved from further representation of Siddig Ali because:
I would feel . . . in a great deal of difficulty to make out defenses, follow lines of cross-examination, and ultimately make arguments to a jury --
THE COURT: If they conflicted with the representations by your client that you had heard previously?
MR. LEADER: Precisely, Your Honor.
During the same conference, Leader stated that Siddig Ali wished to resume being represented by the Kunstler firm and to return to general population at the Metropolitan Correctional Center ("MCC") along with the other defendants in the case. (Id. at 5, 7-8) I told Leader and Siddig Ali that because resumed representation by the firm might be problematic, they should try to secure alternative counsel. (Id. at 5, 9)
On August 18, the parties appeared in court, with Siddig Ali represented by Leader, who stated that after further consultation, Siddig Ali did not wish to be represented by the Kunstler firm. Despite that, Kunstler and Kuby repeatedly sought an order directing that they be allowed to meet with Siddig Ali, apparently to debrief him about his disclosures to the government. That request was denied. (8/18/94 Tr. 16-20)
The August 18 conference addressed also whether the Kunstler firm may continue to represent El-Gabrowny. When the court raised the question of whether it might be necessary to secure from El-Gabrowny a waiver of the Kunstler firm's possible conflicts of interest in addition to the one secured at the time the firm began to represent Siddig Ali (see infra p. 6 n.1), Kunstler immediately took the position that the prior waiver would suffice. (8/18/94 Tr. 4) Kuby added that El-Gabrowny was "willing to issue the same type of waiver that he issued before." (Id. at 6) Counsel informed the court that El-Gabrowny had seen all the government's submissions on the subject of possible conflicts other than the government's August 17, letter, which counsel then reviewed with El-Gabrowny. However, it later became apparent that the Kunstler firm had not reviewed with El-Gabrowny the government's submissions on the subject of conflict of interest, and it was agreed that El-Gabrowny would review that material with Anthony Ricco, Esq., whom El-Gabrowny selected to replace Kunstler and Kuby if they were disqualified as his counsel. (8/18/94 Tr. 10-13)
On the morning of August 23, Ricco notified the court that he had reviewed all the government's submissions with El-Gabrowny, and that the defendant "has decided to execute a waiver of any conflict of interest pertaining to the continued representation by Mr. Kunstler or Mr. Kuby," with one proviso:
However, the defendant has expressed concern over unanticipated and unforeseen testimony and other evidence which may burgeon as the trial progresses. Accordingly, Mr. El-Gabrowny requests that the court appoint standby counsel, pursuant to the court's November 9, 1993 [opinion], to ensure that his Sixth Amendment right[s] to confrontation and cross-examination are not impaired by his decision to continue with Mr. Kunstler and Mr. Kuby as counsel.
(8/23/94 Ricco Ltr. at 1-2)
That afternoon, the parties appeared in court and I solicited from El-Gabrowny his understanding of the conflict issues and his decision as to whether to waive them. The following exchange ensued:
THE COURT: Can you give me a brief summary of what your awareness is, what your understanding is of the conflict problem?
THE DEFENDANT: (In English) I do understand that because previous relationship through my lawyers and former clients my lawyers won't be able fully to defend me.
THE COURT: May not be able.
THE DEFENDANT: (In English) May not be able to fully defend me. They are not going to be able to cross-examine a former client.
THE COURT: Or make arguments that could hurt a former client.
THE DEFENDANT: (In English) I understand that might be actual or potential conflict of interest, might show up during the trial.
THE COURT: Okay. And the question is do you want to go ahead and be represented by them or not?
THE DEFENDANT: (In English) Yes.
That procedural history was preceded by a far longer record of the Kunstler firm's relationships and ...