In re Grand Jury Investigation, 03-123-09.
| Decision Date | 08 August 2006 |
| Docket Number | No. 03-123-09.,03-123-09. |
| Citation | 447 F.Supp.2d 453 |
| Parties | In re: GRAND JURY INVESTIGATION |
| Court | U.S. District Court — Eastern District of Pennsylvania |
AND NOW, this 8th day of August 2006, upon consideration of the government's motion to unseal and to publish the Court's May 16, 2006 Opinion, and upon the absence of any objection by the target witnesses to the government's motion, it is hereby ORDERED that the government's motion is GRANTED to the extent that the government seeks to unseal and to publish a slightly redacted version of the May 16, 2006 Opinion. It is hereby further ORDERED that this redacted version of the May 16, 2006 Opinion, attached as Exhibit A to this Order, is unsealed and that the government may publish this document.
Presently before the Court is the government's motion to disqualify a law firm (the "Law Firm") from representing seven grand jury witnesses in the above-referenced grand jury investigation and the Law Firm's response thereto. For the following reasons, this Court grants the government's motion.
The instant grand jury is investigating, inter alia, allegations of fraud, obstruction of justice, and conspiracy to obstruct justice on the part of a public official and several members of his staff.1 The Law Firm was retained to represent seven different witnesses in the grand jury investigation (the "clients"). Two clients, identified as A.A., a former employee of the legislative committee chaired by the public official (the "legislative committee"), and B.B., executive director of the legislative department that provides computer services to the public official, are potential targets of the grand jury investigation ("target clients"). (See A.A. and B.B. Aff., attached as Ex. 3-4 to Law Firm Br.; Gov. Mot., at ¶ 3).2 The remaining five clients, identified as C.C., D.D., E.E., F.F., and G.G., are fact witnesses ("non-target clients"). (See Gov. Mot., at ¶ 3). D.D., E.E., F.F., and G.G. are employees of the legislative committee. (See D.D., E.E., F.F., and G.G. Aff., attached as Ex. 6-9 to Law Firm Br.). C.C. is not a state employee; instead, she is the wife of D.D. and a former worker on the public official's private farm. (See C.C. Aff., attached as Ex. 10 to Law Firm Br.; Transcript of May 8, 2006 Hearing ("Tr."), at 94).
The clients were referred to the Law Firm by the public official's attorney and by chief counsel of the legislative committee, at the behest of the public official's attorney. (See Tr., at 46-48, 56-57, 104-106). The legislative committee is also paying the Law Firm's legal fees for A.A., B.B., F.F., D.D., E.E., and G.G. . C.C. has no contract for legal services with the Law Firm, but continues to receive services without a corresponding bill; C.C. and the Law Firm have had no discussions as to the source of the payment of her legal fees. (See Tr., at 96-99).
The seven clients were subpoenaed by the grand jury at various times. Prior to the appearance of A.A. and B.B. before the grand jury, the government expressed interest in discussing a possible immunity agreement with each target client. (See Gov. Mot., at ¶¶ 15-10; February 9, 2006 Letter, attached as Ex. C to Gov. Br.; April 18, 2006 Letter, attached as Ex. D to Gov. Br.). The government explained that it would be interested in immunizing one of the two target clients, but probably not both. (See Gov. Mot., at ¶ 7; Tr., at 6). The government also explained the Law Firm's conflict of interest in representing both A.A. and B.B., asserting that the two target clients possessed directly opposing interests. (See January 26, 2006 Letter, attached as Ex. B to Gov. Br.; February 9, 2006 Letter, attached as Ex. C to Gov. Br.; April 18, 2006 Letter, attached as Ex. D to Gov. Br.).
The Law Firm refused to negotiate with the government for immunity on behalf of A.A. or B.B., let alone to participate in an initial off-the-record proffer among counsel. (See February 9, 2006 Letter; April 18, 2006 Letter). Instead, the Law Firm insisted on blind immunity, which would require the government to offer immunity prior to knowledge of the content of the testimony of A.A. and B.B., and advised its target clients not to engage in an off-the-record proffer to determine immunity eligibility. (Id.; Gov. Mot., at ¶ 8). On February 7, 2006, A.A. appeared before the grand jury and asserted his Fifth Amendment privilege against self-incrimination. (See Gov. Mot., at ¶ 5). On April 25, 2006, B.B. also responded to the government's questions before the grand jury by asserting her Fifth Amendment privilege against self-incrimination. (See Gov. Mot., at ¶ 11). The government represents that it is likely to charge and to indict both A.A. and B.B. in the absence of immunity. (See Tr., at 6, 8, 11-12, 24-25).
The Law Firm found no risk of exposure to criminal charges for its five non-target clients. (See Law Firm Br., at 1). The Law Firm advised these non-target clients to participate in an off-the-record proffer with the government. (See Law Firm Br., at 1; E.E. Aff., at ¶¶ 6-8; G.G. Aff., at ¶¶ 5-8; F.F. Aff., at ¶¶ 5-8; D.D. Aff., at ¶ 5-9; C.C. Aff., at ¶¶ 5-8). The non-target clients executed an off-the-record proffer letter, and testified before the grand jury. (Id.). According to the government, G.G.'s testimony on April 18, 2006 implicated B.B. in the crime of conspiracy to obstruct justice. (See Gov. Mot., at ¶ 9).
On Friday, April 28, 2006, the government filed a motion seeking disqualification of the Law Firm from representing each of the seven clients. The Law Firm filed a response on May 5, 2006. The Law Firm's response includes affidavits from the seven clients proclaiming the absence of a conflict of interest and agreeing to waive such a conflict, to the extent one exists. The Court held a hearing on May 8, 2006, at which all seven clients appeared and testified.
The government seeks to disqualify the Law Firm from representing the target and non-target clients. (See Proposed Order, attached to Gov. Br.).
A court has supervisory authority to regulate the professional conduct of lawyers during federal grand jury proceedings, including the power to disqualify an attorney, or law firm, from representing more than one witness in certain circumstances. (See Law Firm Br., at 15); United States v. Miller, 624 F.2d 1198, 1201 (3d Cir.1980) (); In re Gopman, 531 F.2d 262, 266 (5th Cir.1976) (). In order to determine whether disqualification is appropriate, the court must perform a three part inquiry: (1) whether an actual conflict, or the serious potential for an actual conflict, exists; (2) whether the conflict, if one exists, has been properly waived; and (3) if a conflict exists and if the conflict has not been properly waived, whether disqualification is the appropriate remedy. See In re Investigative Grand Jury Proceedings on April 10, 1979 and Continuing, 480 F.Supp. 162, 168 (N.D.Ohio 1979); In re Grand Jury, 446 F.Supp. 1132 (N.D.Tex.1978); In re Grand Jury Investigation, 436 F.Supp. 818 (W.D.Pa.1977). Throughout this analysis, a court must be mindful of the competing interests underlying the sanction of disqualification, including a party's right to counsel of his choosing,3 a party's right to conflict-free representation, the court's interest in maintaining the efficacy of the grand jury process, the sanctity of the attorney-client relationship, and the necessity of ensuring compliance with the highest standards of professional ethics. See, e.g., United States v. Moscony, 927 F.2d 742, 749-750 (3d Cir.1991) (); European Cmty. v. RJR Nabisco, 134 F.Supp.2d 297, 303 (E.D.N.Y.2001).
The government argues that the Law Firm's representation of the seven grand jury witnesses is burdened by a litany of actual and potential conflicts. (See Gov. Br., at 6-15).
The Supreme Court has declared that a presumption in favor of a criminal defendant's choice of counsel at trial dissipates "not only by a demonstration of actual conflict but by a showing of a serious potential for conflict." Wheat v. United States, 486 U.S. 153, 163, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). This standard-an actual conflict or a serious potential for an actual conflict-has been applied to lawyers representing multiple witnesses in grand jury proceedings both prior to and after the Wheat decision. See, e.g., In re Grand Jury Proceedings, 859 F.2d 1021, 1024 (1st Cir.1988) (); In re Special February 1977 Grand Jury, 581 F.2d 1262, 1265 (7th Cir.1978) (); In re Grand Jury Empaneled January 21, 1975, 536 F.2d 1009, 1012 (3d Cir.1976) (). Not surprisingly, the government bears a "heavy burden" in proving that this standard is met due to the ramifications of finding a conflict of interest. See, e.g., United States v. Diozzi, 807 F.2d 10,...
To continue reading
Request your trial
-
United States v. Wright
...our supervisory power, reassign this case to a different judge upon remand.") (quotation marks omitted).44 In re Grand Jury Investigation , 447 F.Supp.2d 453, 456-57 (E.D. Pa. 2006) (collecting cases); see also United States v. Moreno , 809 F.3d at 780 (summarizing supervisory authority).45......
-
In re of Grand Jury Empaneled April 24, 2008
...uniform in expressly acknowledging, or in presupposing without discussion, the existence of this right." In re Grand Jury Investigation, 447 F.Supp.2d 453, 457 n. 3 (E.D.Pa.2006).6 The right to a particular counsel in both a trial setting, and by analogy a grand jury setting, is not absolut......
-
United States v. Pflueger
...or serious potential conflict, the court may look in part to the relevant body of professional rules. See In re Grand Jury Investigation, 447 F. Supp. 2d 453, 458 (E.D. Pa. 2006) (finding that the Rules of Professional Conduct provide a useful guide against which to measure the conduct of l......