United States District Court, W.D. New York
DECISION AND ORDER
H. KENNETH SCHROEDER, Jr., Magistrate Judge.
This case was referred to the undersigned by the Hon. William M. Skretny, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report on dispositive motions.
Defendant, Gregory Kwiatkowski ("the defendant"), is charged, along with two others, in a five-count Indictment, with having violated Title 18, United States Code, Sections 241, 242 and 2. Dkt. #1. Presently pending is the government's motion seeking a determination of whether a conflict of interest exists in the present representation by Lipsitz Green Scime Cambria, LLP, of defendant Gregory Kwiatkowski, by Paul J. Cambria, Jr., as a result of the representation by Mr. Cambria's firm of a person identified as a victim in the Indictment. Dkt. #6. Counsel for defendant Kwiatkowski submitted a response to the instant motion. Dkt. #10. This Court heard oral argument on June 17, 2014. For the following reasons, this Court concludes that the presumption of shared confidences has been rebutted and that while Mr. Stuermer's involvement in the representation of Mr. Kwiatkowski would give rise to his disqualification, neither the law firm of Lipsitz Green Scime Cambria, LLP nor Mr. Cambria should be disqualified from representing defendant Kwiatkowski subject to the continued adherence to the screening devices that have been implemented.
On May 27, 2014, a Federal Grand Jury empaneled in the Western District of New York returned a five-count Indictment charging defendant Kwiatkowski with four counts of violating the civil rights of three persons, D.S., J.C., and D.D., and conspiring to violate the civil rights of those three persons, D.S., J.C., and D.D. and one other person, J.W. The alleged victims in this case are identified in the Indictment by their initials. The conduct charged in the Indictment occurred in the early morning hours of May 31, 2009.
Defendant Kwiatkowski appeared before this Court on June 2, 2014 for purposes of arraignment on the instant Indictment. Attorney Paul J. Cambria, Jr., a senior partner at Lipsitz Green Scime Cambria, LLP, appeared with the defendant and advised the Court that he had been retained by the defendant to represent him in connection with this matter. At the conclusion of the proceedings, counsel for the government advised the Court of a possible conflict of interest in Mr. Cambria's representation of defendant Kwiatkowski and further advised that counsel for the government and defendant Kwiatkowski would fully advise the Court of the nature of the conflict within one week's time. The instant motion was filed on June 5, 2014. Dkt. #6.
In an affidavit filed in support of the instant motion, Assistant United States Attorney Paul J. Campana states that he was contacted on May 28, 2014 by Paul J. Cambria, Jr. who advised that he was likely to be engaged that day as counsel for defendant Kwiatkowski. Dkt. #6, ¶ 5. During the June 17, 2014, oral argument on the instant motion, Mr. Cambria advised the Court that in the early afternoon on June 2, 2014, as he was preparing to leave his office to appear with the defendant at his 2:00 p.m. arraignment, Mr. Cambria explained that he encountered Michael P. Stuermer, also a senior partner at Lipsitz Green Scime Cambria, LLP. During this brief encounter with Mr. Stuermer on June 2, 2014, Mr. Cambria stated during oral argument that he casually mentioned to Mr. Stuermer that he was on his way to Court for defendant Kwiatkowski's arraignment. At that time, according to Mr. Cambria, Mr. Stuermer replied, that he thought he may have represented an individual in connection with the events charged in the Indictment. As noted above, the Indictment only identifies the alleged victims by their initials. Later, with the assistance of the United States Attorney's Office, Messrs. Cambria and Stuermer confirmed that in 2009, in connection with a local criminal matter pending in Buffalo City Court arising from the events that occurred on May 31, 2009, Mr. Stuermer represented the individual referred to in the Indictment as D.S.
The Court notes that at one time, Mr. Stuermer was engaged in the law firm's criminal defense practice area and routinely appeared before the undersigned in connection with criminal matters. Although the Court cannot presently recall the last time Mr. Stuermer appeared before it in connection with a criminal matter, the Court can say unequivocally that the frequency of Mr. Stuermer's appearances in connection with criminal matters has decreased significantly in recent years. Indeed, a review of the Lipsitz Green Scime Cambria LLP website reveals that the focus of Mr. Stuermer's practice has changed to automobile accidents, construction accidents, motorcycle accidents, premises liability, and workplace accidents. See http://www.lipsitzgreen.com/attorneys/stuermer-michael/.
In its motion, the government states that the alleged victim, D.S. and former client of Lipsitz Green Scime Cambria, LLP will be a witness in the government's case against defendant Kwiatkowski. In support of the instant motion, the government further states,
[t]he government respectfully submits that one of the Court's concerns should be that Mr. Cambria's firm's prior representation of a prosecution victim/witness, in a trial where Mr. Cambria will be obligated to cross examine the former client (and present witness), would create the appearance of impropriety. It may limit Mr. Cambria's ability to cross-examine the victim, as that cross-examination could not address matters the victim discussed with the firm, without creating a further appearance of impropriety, i.e., the appearance that Mr. Stuermer revealed client confidences to Mr. Cambria and/or that Mr. Cambria failed to fully cross-examine the victim lest he interfere with the attorney-client relationship between the victim and Mr. Stuermer.
Dkt. #6, ¶ 9. Thereafter, on June 11, 2014, Assistant U.S. Attorney Paul Campana filed a Supplemental Affidavit in Support of Motion for Determination of Conflict of Interest. Dkt. #9. In that affidavit, AUSA Campana stated that, "on June 9, 2014, D.S. advised the government that he would not waive any conflicts arising from Mr. Cambria's firm having previously represented D.S., and now having been engaged to represent defendant Kwiatkowski." Dkt. #9, ¶ 3.
In response to the instant motion, Mr. Cambria stated,
To begin with, as an officer of the Court, I can affirm herein that I have no information from Mr. Stuermer's brief representation of D.S. in 2009; in that I did not substantively discuss the matter with Mr. Stuermer; and further I have not reviewed Mr. Stuermer's papers, notes or file regarding the matter. Our firm employs approximately fifty attorneys. The criminal department of our firm is busy; and handles a great many clients. It should surprise no one that I have obtained no information regarding Mr. Stuermer's brief representation of D.S., which occurred some five years ago. Further, I will not obtain any [sic] from Mr. Stuermer or his file.
Dkt. #10, ¶ 6. In addition to the foregoing, Mr. Cambria further advised the Court that once D.S.'s identity was confirmed for purposes of determining the existence of a conflict of interest, Lipsitz Green Scime Cambria, LLP "created a Chinese wall often used by the government in federal cases between government attorneys. The now-closed file is stored in a warehouse outside of the firm's four walls and I ...