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United States v. Congi

December 12, 2005

UNITED STATES OF AMERICA,
v.
MARK CONGI, DEFENDANT.



The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court

DECISION AND ORDER

INTRODUCTION

Currently before the Court is the government's motion to disqualify attorney Paul Cambria, Esq., and Mr. Cambria's law firm, Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, from further representing defendant Mark Congi in this case. Defendant Congi opposes the government's motion.

For the reasons stated herein, the Court grants the government's motion.

BACKGROUND

A. Early Issues Regarding Representation and Possible Conflicts

On May 15, 2002, defendant Mark Congi and others, all of whom were officers or members of the Laborers International Union of North America, Local 91, A.F. of L.-C.I.O. ("Local 91"), located in Niagara Falls, New York, were charged by indictment with various violations of the RICO statute and the Hobbs Act. Defendant Congi was initially represented by Carol Heckman, Esq. One of Congi's co-defendants, Michael "Butch" Quarcini, was represented by Mr. Cambria.

On May 17, 2002, at the arraignment of co-defendant Quarcini, the government notified the Court and counsel of the existence of potential conflicts of interest regarding Mr. Cambria. On May 29, 2002, the government itemized six distinct conflicts of which it was aware, including prior representation by Mr. Cambria and his law firm of a Local 91 representative before the grand jury; the firm's prior representation of potential government witnesses; the possibility that a representative of the firm would testify as to the payment of fees received from Local 91; the firm's long standing representation of Local 91; and the firm's representation of a union whose members were allegedly victimized by the defendants, an officer of which objected to Mr. Cambria remaining in the case. On June 10, 2002, the government moved to disqualify Mr. Cambria as Quarcini's counsel.

On June 26, 2002, the government added additional grounds to its disqualification motion, stating that Local 91 itself, through the officials then running the union, agreed that Mr. Cambria and his firm should be disqualified. Local 91 supported its position by citing confidences learned by Mr. Cambria's law firm during its representation of Local 91; Local 91's ethical practices code; the appearance of impropriety and conflicting interests in representing (either simultaneously or successively) Local 91 and its individual members; and the firm's continuing possession of Local 91's files.

On July 16, 2002, Magistrate Judge Leslie G. Foschio denied the government's motion to disqualify, and on July 23, 2002, denied the government's motion for reconsideration. On September 30, 2002, this Court affirmed the Magistrate Judge's Decision and Order.

On April 8, 2003, Ms. Heckman withdrew as defendant Congi's attorney and was replaced by Joel Daniels, Esq.

On July 12, 2003, co-defendant Quarcini died unexpectedly. On or about July 29, 2003, Mr. Cambria and his firm (which previously represented Quarcini) replaced Mr. Daniels as defendant Congi's counsel.

B. Possible Conflict Regarding Brian Perry

On September 13, 2004, the government filed a pleading relating to a new potential conflict of interest involving Mr. Cambria. In this submission, the government stated that Brian Perry, a former co-defendant and now government witness, would testify that he met with and was interviewed by Mr. Cambria, without anyone else present, shortly after an incident on September 16, 1998, at the construction site of a Wegman's Food Market in Niagara Falls, New York ("the Wegman's incident").*fn1 The government alleges that during the Wegman's incident, members of Local 91, including several of the named defendants in this case, attacked members of the tilesetters union, at the direction of defendant Congi, as part of a jurisdictional dispute over work assignments at the job site. The government further stated in its submission that Perry would testify that Mr. Cambria took notes of Perry's statements at this meeting and that Perry recalls signing some sort of statement or affidavit. The ...


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