United States District Court, E.D. New York
MEMORANDUM & ORDER
N. VITALIANO United States District Judge
by a late and unusual confluence of events, the government
seeks a hearing pursuant to United States v. Curcio, 680 F.2d
881 (2d Cir. 1982), regarding perceived potential conflicts
in the continued representation of defendant Morris by his
attorney of record while defendant Josephberg moves to
disqualify that same attorney of record for defendant Morris.
For the reasons that follow, defendant Josephberg's
motion to disqualify the attorney of record for defendant
Morris is granted, and the government's request for a
Curcio hearing is denied as academic.
Michael Morris and Craig "Jobo" Josephberg were
charged with a number of securities- related crimes in a
superseding indictment filed on November 2,
2015. See ECF Dkt. No. 166 (Superseding
Indictment). As relevant to this memorandum and order, Morris
was a managing director of Halcyon Cabot Partners, Ltd., and
Josephberg was previously employed at Halcyon. Attorney Amy
Lynn Walsh has represented Josephberg since July 29, 2014,
see ECF Dkt. No. 32 (appearance entered by Amy Lynn Walsh),
and Attorney Maranda Fritz has represented Morris since
November 4, 2015, see ECF Dkt. No. 176 (appearance entered by
Maranda E. Fritz). On December 1, 2017, two years and 26 days
after Attorney Fritz first appeared, the government filed a
letter motion notifying the Court and all defense counsel of
a potential attorney conflict of interest - Attorney Fritz
had, apparently, previously represented Josephberg in
connection with his work at Halcyon, and apparently
represented government Witness A as well. See ECF Dkt. No.
385 (Dec. 1, 2017 government letter motion). The government
requested that the Court schedule a Curcio hearing to deal
with any real or potential conflicts.
December 7, 2017, Attorney Walsh filed a letter that the
Court construed as a motion to disqualify Attorney Fritz, on
the grounds that she owes Josephberg a continuing duty of
loyalty - one that Josephberg was not willing to waive. See
ECF Dkt. No. 397 (Dec. 7, 2017 Josephberg letter motion). The
next day, at a scheduled status conference and oral argument
on previously filed and briefed motions, the Court ordered
briefing on the issue of Attorney Fritz's alleged
conflict of interest. That briefing is now complete.
Principles of Law
the Sixth Amendment, a defendant in a criminal case is
entitled to the assistance of competent counsel, see
Wheat v. United States, 486 U.S. 153, 158, 108 S.Ct.
1692, 1697, 100 L.Ed.2d 140 (1988), and there is a
"presumption in favor of counsel of choice."
United States v. Jones, 381 F.3d 114, 119 (2d Cir.
2004). At the same time, federal courts have an independent
interest "in ensuring that criminal trials are conducted
within the ethical standards of the profession and that legal
proceedings appear fair to all who observe them."
Wheat, 486 U.S. at 160, 108 S.Ct. at 1698.
Interwoven in these understandings is the tenet that
attorneys owe ethical duties to current and former clients.
See, e.g., United States v. Perrone, 2007 WL
1575248, at *8 (S.D.N.Y. May 29, 2007).
practical terms, when a court is made aware that an attorney
may have a conflict of interest, it must follow the two-step
analytical framework described in United States v.
Levy, 25 F.3d 146, 153 (2d Cir. 1994). First, there is
an obligation to inquire and "investigate the fact and
details of the attorney's interests to determine whether
the attorney in fact suffers from an actual conflict,
potential conflict, or no genuine conflict at all."
Id. An actual conflict "exists when the
attorney's and the defendant's interests 'diverge
with respect to a material factual or legal issue or to a
course of action, ' or when the attorney's
representation of the defendant is impaired by loyalty owed
to a prior client." Jones, 381 F.3d at 119
court determines that there is an actual or potential
conflict, it moves to the second step, which requires
consideration of whether the conflict is automatically
disqualifying or waivable. Levy, 25 F.3d at 153. The
Second Circuit has clarified that there is a "very
narrow category of cases in which we have held attorney
conflicts to be unwaivable." United States v.
Perez, 325 F.3d 115, 126 (2d Cir. 2003), which are not
at issue here. As this Court noted recently, Perez did not
exhaust the field, and "[b]eyond the 'always'
category, there is a 'sometimes' category" of
unwaivable conflicts. United States v. Vertuccio,
2017 WL 6513676, at *3 (E.D.N.Y.Dec. 19, 2017). Other kinds
of conflicts are generally waivable, provided that there is a
knowing and intelligent waiver by a defendant. Curcio, 680
F.2d at 888-890.
consideration is a trial court's independent
responsibility "in ensuring that criminal trials are
conducted within the ethical standards of the profession and
that legal proceedings appear fair to all who observe
them." Wheat, 486 U.S. at 160, 108 S.Ct. at
1698. Wheat makes clear that trial courts retain discretion
to disqualify counsel even where the law does not absolutely
require it - discretion to entertain those situations that
fall into the "sometimes" category.
disqualification need not be on the basis of a conflict with
the interests of her client, but because of the duty of
loyalty owed to a former client, which is fundamental to the
attorney-client relationship. This duty of loyalty is at the
heart of the law, and it is not extinguished by the end of
representation - it is important enough a former client may
make a motion to disqualify an attorney representing a
co-defendant, and upon a sufficient showing, have that
attorney disqualified. However, the Second Circuit has made
clear that the moving party must meet a high burden. This is
because courts "must be solicitous of a client's
right freely to choose his counsel [, because such] motions
are often interposed for tactical reasons, and ... inevitably
cause delay." Evans v. Artek Systems Corp., 715
F.2d 788, 791-92 (2d Cir. 1983) (internal quotations and
the substantial rights involved and the high burden they
precipitate, a party moving to disqualify counsel for another
party must show that, first, he was previously represented by
the subject attorney; second, that there is a
"substantial relationship between the subject
matter" of the attorney's prior representation of
him and the issues in the current litigation; and third, that
the attorney he seeks to disqualify either had access to or
was likely to have access to "relevant privileged
information" while representing him. See United
States v. Prevezon Holdings Ltd., 839 F.3d 227, 239 (2d
Cir. 2016). A matter is substantially related to an earlier
representation if, first, "the current matter involves
the work the lawyer performed for the former client; or,
[second], there is substantial risk that representation of
the present client will involve the use of information
acquired in the course of representing the former client,
unless that information has become generally known."
United States v. Pizzonia, 415 F.Supp.2d 168, 178
(E.D.N.Y.2006). As noted in Pizzonia, the question of how
broad a client's interests are have to be determined by
the scope of the work that the attorney did in the former
representation. Id. This consideration interlocks
with the New York Rules of Professional Conduct, in
particular Rule 1.9, which governs a lawyer's
responsibilities to former clients. Finally, once a
substantial relationship is established between the two
cases, and the same lawyer is involved in both, the moving
party "is not required to make a specific showing that
confidences were passed to counsel. Instead, the [moving
party] is entitled to the benefit of an irrebuttable
presumption that confidences were shared." Prevezon
Holdings Ltd, 839 F.3d at 240 (quoting DeFazio v.
Wallis, 459 F.Supp.2d 159, 164-65 (E.D.N.Y.2006)).
preface, based on the dialogue with counsel at the December
8th status conference, it is presumed that, following
appropriate and independent counsel's advice to him, but
without a formal Curcio allocution, Morris would exercise his
Sixth Amendment right to have Attorney Fritz continue as his
attorney of record, notwithstanding any past representation
she afforded to Josephberg. Here, though, that is only half
the equation. Succinctly, if Attorney Fritz did represent
Josephberg, then Josephberg would need to waive any actual or
potential conflicts as well. See Pizzonia, 415
F.Supp.2d at 179. Josephberg's motion to disqualify
Attorney Fritz loudly speaks that he believes that there is
an actual conflict and that, even if he could waive it, he
would not. See ECF Dkt. No. 397 at 2.
the first relevant factor as to disqualification, and,
indeed, the most critical challenge on this motion, is
whether or not Attorney Fritz actually represented
Josephberg. Attorney Fritz argues that she represented
Josephberg only as corporate counsel; both Josephberg and the
government disagree with that representation. Attorney Fritz
states, in both her memorandum of law and her affirmation,
that "[a]t no point leading up to the interviews did Ms.
Fritz tell Mr. Josephberg that she represented him
personally. Rather, she made clear to him that she
represented Halcyon and Mr. Morris - a fact that, at that
point, was well known to everyone at Halcyon, including Mr.
Josephberg." Dkt. No. 405 at 2; see also Dkt. No. 405-1