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UNITED STATES v. REYNOSO

June 15, 1998

UNITED STATES OF AMERICA, -v.- RAMIREZ REYNOSO, Defendant.


The opinion of the court was delivered by: MARTIN

OPINION AND ORDER

 JOHN S. MARTIN, Jr., District Judge:

 The issue in this case is whether an attorney employed by the Federal Defender Division of the Legal Aid Society should be disqualified from representing at trial a defendant whom he has represented for approximately a year, because four years ago another lawyer in the Federal Defender Division represented a potential Government witness in a different criminal case.

 Since the outset of these proceedings, Roland Thau, an attorney in the Federal Defender Division has represented Ramirez Reynoso. Count Two of the indictment charges Reynoso with violating the Hobbs Act, 18 U.S.C. ┬ž 1951, in that he and others committed an armed robbery and took "approximately $ 2,600, which included the proceeds of a travel agency doing business in the Bronx, New York, and thereby obstructed, delayed and affected commerce. . . ." For at least six months, Thau has been seeking discovery from the Government in an attempt to establish that the funds taken in the robbery were not proceeds of the travel agency but were personal funds of the victims and that these funds had their source in the narcotics business conducted by Donato Vasquez, who was the husband of one of the victims and is the father of the other. It now appears that Vasquez, who pleaded guilty to a charge of conspiring to distribute cocaine, will be a witness at Reynoso's trial.

 The Government, later joined by Vasquez, moved to disqualify Thau from acting as Reynoso's trial counsel because Leonard Joy of the Federal Defender Division represented Vasquez from December 1993 to May 27, 1994 in connection with his plea of guilty to a charge relating to the cloning of cellular telephones. Thau has represented to the Court, and his representation is not questioned, that he had no involvement in the prior representation of Vasquez, that Joy has almost no recollection of the Vasquez representation, that the Federal Defender Division's files relating to Vasquez have been sent to storage and are, therefore, not available to him, and that he and Joy have had no discussion concerning the details of Joy's representation of Vasquez.

 Thau has also stated that he intends to cross-examine Vasquez concerning his involvement in the cloning of cellular phones in an attempt to show that it was a part of his ongoing narcotics activity from which he derived substantial income.

 The Government's position is that since Joy would be disqualified from representing Reynoso because he would not be permitted to cross-examine his former client Vasquez concerning the very matter that was the subject of his representation, Thau, Joy's colleague in the Federal Defender Division, should also be disqualified. There is no question that Joy could not represent Reynoso. See, e.g., United States ex rel. Stewart v. Kelly, 870 F.2d 854 (2d Cir. 1989), United States v. Levy, 25 F.3d 146, 152-53 (2d Cir. 1994). Moreover, all members of a private law firm have been disqualified in similar circumstances. See, e.g., United States v. Uzzi, 549 F. Supp. 979 (S.D.N.Y. 1982), United States v. Falzone, 766 F. Supp. 1265 (W.D.N.Y. 1991). However, given the particular circumstances of this case and the unique nature of the Federal Defender Division makes it inappropriate to disqualify Thau in this case.

 At the outset of the analysis, it is appropriate to note that the Second Circuit has clearly stated that:

 
The solution to this clash between a defendant's Sixth Amendment right to counsel and the same defendant's right to a fair trial is a balancing of interests that is committed to the discretion of the trial judge, who has "broad latitude" in this matter. Wheat v. United States, 486 U.S. 153, 163, 108 S. Ct. 1692, 1699, 100 L. Ed. 2d 140 (1988). There is a presumption in favor of a defendant's choice of counsel, but this may be overcome "by a showing of a serious potential for conflict." Id.,; see also United States v. Arrington, 867 F.2d 122, 128 (2d Cir. 1989) (right to counsel of choice not absolute). In balancing what can be competing interests of the Sixth Amendment, the trial court has "an independent duty to ensure that criminal defendants receive a trial that is fair." Wheat, 486 U.S. at 159, 108 S. Ct. at 1697; see also United States v. Scopo, 861 F.2d 339, 344 (2d Cir. 1988).

 United States ex rel. Stewart v. Kelly, 870 F.2d 854, 856 (2d Cir. 1989).

 Here, the balancing of interests supports upholding Reynoso's right to have Thau continue to represent him.

 First as noted above, Thau has represented Reynoso from the outset. He has conducted a thorough investigation of the facts and has developed a unique theory of defense to the charge.

 Second, and most important, in the circumstances of this case, it does not make sense to apply to the Federal Defender Division, the same standards for disqualification that would apply to a private law firm.

 Disciplinary Rule 5-105(D) of the ABA Model Code of Professional Responsibility provides: "If a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner, or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment." See also N.Y. Jud. Law DR 5-105(D). Law firm disqualification is considered necessary in order to ensure that confidences disclosed by a former client to an attorney will not be shared with another member of the attorney's firm who will then use the confidential information to the detriment of the prior client. See, e.g., Uzzi, 549 F. Supp. at 982-84. As Judge Sand noted in Uzzi, a rule which made disqualification depend upon whether the Court accepted the representations of the lawyers that they had not shared information from the former client would be difficult to enforce, would require the Court to make judgments as to the integrity of the lawyers ...


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