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August 12, 2005.


The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District



Attorney Michael J. Tallon, Esq. ("Tallon") is retained counsel for both defendants, Sincerray Sullivan ("Sullivan") and Zechariah Burnett ("Burnett"). Tallon represents Sullivan on a petition alleging a violation of probation, which was filed February 18, 2005. Tallon also represents Burnett in a three-count indictment charging Burnett with possession of cocaine and possession of a firearm in furtherance of a drug trafficking crime. Burnett's arrest stems from an alleged shooting that occurred on or about August 4, 2004, near Central Park and Third Street in Rochester, New York.

  Pending before the Court is the Government's motion to disqualify attorney Tallon from representing both defendants based on a conflict of interest. The Government's motion was filed April 29, 2005. Tallon filed a declaration opposing the motion on May 18, 2005, and the Court heard argument on the motions on June 8, 2005.

  Apparently defendants Sullivan and Burnett know each other and may have some personal relationship. The Government has several bases for seeking Tallon's removal because of what the Government perceives to be a clear conflict of interest.

  First of all, the Government represents that Sullivan may be a witness in the case against Burnett. Sullivan was interviewed by law enforcement officers and allegedly put Burnett at the scene of the shooting. She apparently also provided some information to the officers that Burnett and the victim of the shooting had been arguing with each other just prior to the shooting. The Assistant United States Attorney handling the Burnett case also represented that Sullivan may have given somewhat conflicting statements about the matter. The Government's concern is an obvious one: Tallon represents both Sullivan and Burnett; he has an obvious conflict since he may be forced when representing Burnett to question or cross-examine Sullivan should she in fact be called as a Government witness. Although Sullivan indicated some reluctance to testify when the Court questioned her on June 8, it is apparent that the Government intends to further question her and subpoena her for trial, if necessary.

  The Government also indicated that it wished to attempt to get more information from Sullivan against Burnett, and that there was some indication at least that her cooperation against Burnett might lead to more favorable consideration from the Government concerning Sullivan's own criminal matter, the allegation that she violated probation. Furthermore, the Government represented that it had some information that Sullivan may have taken steps to threaten a potential witness against Burnett.

  On June 8, 2005, I did question Sullivan and she indicated quite strongly that she understood the potential conflict but still wished Tallon to be her lawyer. The Court has not yet spoken to Burnett about the matter.


  "A defendant's Sixth Amendment right to the effective assistance of counsel includes the right to be represented by an attorney who is free from conflicts of interest." United States v. Blount, 291 F.3d 201, 210 (2d Cir. 2002) (citing Mickens v. Taylor, 535 U.S. 162 (2002)), cert. denied, 537 U.S. 1141 (2003). The Sixth Amendment right to counsel is not absolute; although a defendant's choice of counsel is presumptively favored, a determination of disqualification by the court will be sustained where the court, in its sound discretion, finds either an actual conflict or a serious potential for conflict. Wheat v. United States, 486 U.S. 153, 164 (1988). "An attorney has an actual, as opposed to a potential, conflict of interest when, during the course of the representation, the attorney's and the defendant's interests diverge with respect to a material factual or legal issue or to a course of action." United States v. Schwarz, 283 F.3d 76, 91 (2d Cir. 2002) (internal quotation omitted), cert. denied, 511 U.S. 1022 (1994). "An attorney has a potential conflict of interest if the interests of the defendant could place the attorney under inconsistent duties in the future." United States v. Jones, 381 F.3d 114, 119 (2d Cir. 2004), cert. denied, 125 S.Ct. 916 (2005).

  When a court has been advised of either a potential or actual conflict of interest between the defendant's attorney and the defendant, the court has an obligation to make a further inquiry. If a conflict, actual or potential, threatens to compromise either the adequate representation of a defendant or the institutional interest in rendering a just verdict, "a trial judge has discretion to disqualify an attorney or decline a proffer of waiver." United States v. Fulton, 5 F.3d 605, 612 (2d Cir. 1993). "If the court discovers that the attorney suffers from a severe conflict — such that no rational defendant would knowingly and intelligently desire the conflicted lawyer's representation — the court is obliged to disqualify the attorney." United States v. Levy, 25 F.3d 146, 153 (2d Cir. 1994). "Among the situations where such disqualification is likely to arise, `[t]he most typical is where an actual conflict arises from a multiple representation.'" United States v. Muflahi, 317 F.Supp.2d 208, 212 (W.D.N.Y. 2003) (quoting United States v. Locascio, 6 F.3d 924, 931 (2d Cir. 1993), cert. denied, 511 U.S. 1070 (1994)).

  In the case at bar, I find that Tallon has an actual conflict of interest, and that disqualification is mandated. Even if I were to find that only a potential conflict exists, however, I would in my discretion disqualify Tallon from representing both Sullivan and Burnett because of the risk that their competing interests could prevent Tallon from adequately representing them both.

  As noted, the Government has stated its intention to call Sullivan as a witness in the case against Burnett. Although it is unclear at this point what the gist of her testimony would be concerning Burnett's role in the August 4 shooting, if she were to testify consistent with her alleged statement to investigators that Burnett was at the scene of the shooting and had been arguing with the victim, Tallon, as Burnett's attorney, would certainly want to discredit Sullivan's testimony. In his role as Sullivan's attorney, however, Tallon would not be able ethically to do so. See United States v. Alvarez, 580 F.2d 1251, 1258 (5th Cir. 1978) ("defense counsel [who represents both defendant and government witness] is torn between serving the witness' best interests in fully cooperating with the government in supplying credible testimony and the accused's obvious desire to discredit the witness' testimony. The Constitution does not countenance such divided loyalties"); United States v. Rodriguez, No. 99 CR 166, 1999 WL 314162, at *2 (E.D.N.Y. May 18, 1999) (noting that "[b]ecause of his obligations to [a client who was cooperating witness for the government, defendant's attorney] will be required to forego effective cross-examination of [witness] on behalf of" defendant).

  Similarly, in United States v. Malpiedi, 62 F.3d 465 (2d Cir. 1995), the defendant's attorney had previously represented an important government witness ("Goldfine") during grand jury proceedings. On appeal from the defendant's conviction, the Second Circuit vacated and remanded, finding that the attorney had an actual conflict of interest "because his duty to Goldfine conflicted with [defendant] Delli Bovi's interest in a full and effective cross-examination of Goldfine." Id. at 469. The court stated that it was "in Delli Bovi's interest to have his attorney conduct a thorough, no-holds-barred cross-examination of Goldfine," and that his attorney "was unable to ...

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