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
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 ...