Davis v. Stamler, 80-2329

• Decision Date: 07 May 1981
• Docket Number: No. 80-2329,80-2329
• Citation: 650 F.2d 477
• Parties: DAVIS, Maurice L., Appellant, v. STAMLER, John, Individually and in his official capacity as prosecutor for the County of Union, State of New Jersey, The Supreme Court of New Jersey, and V. William Dibuono.
• Court: U.S. Court of Appeals — Third Circuit

Page 477

650 F.2d 477

DAVIS, Maurice L., Appellant, v. STAMLER, John, Individually and in his official capacity as

prosecutor for the County of Union, State of New

Jersey, The Supreme Court of New Jersey,

and V. William Dibuono.

No. 80-2329.

United States Court of Appeals, Third Circuit.

Argued March 19, 1981.

Decided April 14, 1981.

Rehearing Denied May 7, 1981.

Robert T. Pickett (argued), East Orange, N. J., for appellant.

George Perselay, Brian W. Fahey (argued), County of Union Dept. of Law, Elizabeth, N. J., for appellee Stamler.

Before SEITZ, Chief Judge, VAN DUSEN and GIBBONS, Circuit Judges.

OPINION OF THE COURT

SEITZ, Chief Judge.

Plaintiff Maurice Davis brought an action in the district court under 42 U.S.C. § 1983 (1976) alleging that the disqualification of his attorney in a state criminal proceeding deprived him of his constitutional right to counsel of his choice. Davis appeals from a final order of the district court denying all relief.

I.

Davis was indicted by a New Jersey grand jury for allegedly converting corporate assets and obtaining money and other property by false pretenses while he was president of Industry Community Center (ICC). Davis retained Robert Pickett to represent him in the criminal proceeding. Pickett, however, had previously represented ICC in various civil matters, and he had served as acting president of the corporation for two months after Davis resigned. As a result, the state moved to disqualify Pickett. The state argued that Pickett's representation of Davis would violate DR 5-102 of the Code of Professional Responsibility because Pickett "may" be called as a witness. The state also contended that DR 5-105(A) required disqualification because Pickett would be placed in the position of representing differing interests and, therefore, the exercise of his independent professional judgment would be adversely affected. Pickett emphasized that he did not represent ICC when the alleged criminal acts occurred, and that he had been acting president only for the limited purpose of calling meetings and keeping the minutes until a new president could be named. Pickett maintained that during his association with ICC he did not participate in any discussions concerning Davis' alleged improprieties.

The state trial judge, after a hearing, disqualified Pickett. The judge found that a conflict of interest existed and that DR 5-102 and DR 5-105 required disqualification. The judge emphasized that Davis' alleged criminal activities were "adverse" to the interests of the corporation that Pickett served as counsel and president. The judge also noted that Pickett had access to ICC's books and records, and that he "was in a position" to advise the corporation as to any wrongdoing by its officers. The Appellate Division of the Superior Court of New Jersey, citing DR 5-102, affirmed "solely because of the probability that counsel may be subpoenaed to testify." The New Jersey Supreme Court denied Davis' petition for certification.

Davis then initiated a section 1983 action against the county prosecutor, the state trial judge, and the New Jersey Supreme Court, alleging a deprivation of his constitutional right to counsel of his choice and requesting injunctive and declaratory relief. After a nonevidentiary hearing, the district court concluded that DR 5-102 did not require disqualification because it believed that an allegation that an attorney is a "potential witness" is not sufficient under that rule. Nevertheless, the court held that Pickett must be disqualified because a conflict of interest existed. The court emphasized that Pickett "might have obtained information substantially related to the present representation" during his prior representation of ICC. Therefore, Pickett was "in a position to breach confidences owed to ICC." The district court also found that representation of Davis by Pickett would result in the appearance of impropriety. It did not directly address the constitutional issue.

II.

In reaching its decision that Pickett was disqualified from representing Davis in the state criminal proceeding, the district court essentially analyzed the issues as if a disqualification motion had been made in a proceeding originating in federal court. The court noted that the local rules of the United States District Court for the District of New Jersey adopted the American Bar Association Disciplinary Rules, and it examined cases setting out standards for attorney disqualification in federal court. We believe, however, that in a section 1983 action alleging that the disqualification of a state criminal defendant's attorney deprived the defendant of his constitutional right to retain counsel of his choice, a federal court must focus on whether the disqualification infringed a constitutional right, not whether it otherwise would have made the same decision as the state court.

Davis alleged in his complaint that the defendants deprived him of his constitutional rights under the fifth, sixth, and fourteenth amendments by preventing him from retaining counsel of his choice. Although the sixth amendment guarantees criminal defendants an absolute right to the assistance of counsel, it does not guarantee them an absolute right to counsel of their choice. See, e. g., United States v. Ostrer, 597 F.2d 337 (2d Cir. 1979); United States v. Dolan, 570 F.2d 1177 (3d Cir. 1978). The sixth amendment does provide some protection for a criminal defendant's decision to select a particular attorney. The defendant must have a "fair opportunity" to secure counsel of his choice, see Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932), and "arbitrary dismissal" of the attorney chosen by the defendant is prohibited, see United States v. Laura, 607 F.2d 52, 56 (3d Cir. 1979). It is clear, however, that the sixth amendment protection accorded to the defendant's choice of counsel must be balanced against the requirements of the fair and proper administration of justice, including the interests underlying the ethical standards governing the practice of law. See Ostrer, 597 F.2d 337; Dolan, 570 F.2d 1177.

The right to counsel of one's choice also derives from the due process clause. See United States ex rel. Carey v. Rundle, 409 F.2d 1210 (3d Cir. 1969), cert. denied, 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127 (1970). Like the sixth amendment, the protection afforded by the due process clause is not...