U.S. v. Edwards
| Decision Date | 25 February 1999 |
| Docket Number | No. Crim.A. 98-165-B-M2.,Crim.A. 98-165-B-M2. |
| Citation | 39 F.Supp.2d 716 |
| Parties | UNITED STATES of America v. Edwin EDWARDS, et al. |
| Court | U.S. District Court — Middle District of Louisiana |
Michael S. Fawer, Covington, LA, Edwin Edwards, Baton Rouge, LA, for Edwin Edwards, defendant.
Karl J. Koch, Unglesby & Koch, Baton Rouge, LA, Lewis O. Unglesby, Lewis O. Unglesby, Attorney at Law, Baton Rouge, LA, Stephen Edwards, Baton Rouge, LA, James M. Cole, Bryan Cave LLP, Washington, DC, for Stephen Edwards, defendant.
Rebecca L. Hudsmith, Lafayette, LA, for Cecil Brown, for defendant.
Servando C. Garcia, III, Garcia & Bishop, Metairie, LA, for Andrew Martin, defendant.
Patrick Fanning, New Orleans, LA, for Bobby Johnson, defendant.
Mary Olive Pierson, Cooper & Pierson, Baton Rouge, LA, Camille F. Gravel, Jr., Alexandria, LA, James Michael Small Law Offices of J. Michael Small, Alexandria, LA, Hillar C. Moore, III, Baton Rouge, LA, for Gregory Tarver, defendant.
RULING ON GOVERNMENT'S MOTION AND INCORPORATED MEMORANDUM OF LAW
The United States1 has filed a motion2 to disqualify Lewis Unglesby and the law firms of Unglesby and Koch and Unglesby, Koch and Reynolds3 from representing the defendant Stephen Edwards in these proceedings. After conducting an evidentiary hearing spanning several days,4 the Court took the motion under advisement. For reasons which follow,5 the Court finds that Lewis Unglesby and the law firms of Unglesby and Koch and Unglesby, Koch and Reynolds are disqualified from representing Stephen Edwards in this case.
In seeking the disqualification of Mr. Unglesby and his law firm, the Government contends that Mr. Unglesby previously represented two other co-defendants in this case, Robert J. Guidry and Edward DeBartolo. Mr. Guidry and Mr. DeBartolo have pled guilty to offenses directly related to the charges set forth in the indictment6 returned against Stephen Edwards and five other defendants.7 The Government asserts that both Mr. Guidry and Mr. DeBartolo will be government witnesses at the trial. At the time Mr. Guidry and Mr. DeBartolo entered their guilty pleas and at the time each testified at the hearing the Court conducted on the motion to disqualify, they were represented by different counsel. In their affidavits filed with the Court and in their testimony presented at the hearing, both Mr. Guidry and Mr. DeBartolo asserted their attorney-client privilege with Mr. Unglesby and his law firm. Mr. Guidry and Mr. DeBartolo also stated that they did not and would not waive their attorney-client privileges with Mr. Unglesby and his law firm.
In support of its motion to disqualify, the Government contends that: (1) Mr. Unglesby and his law firm have two separate actual conflicts because two co-defendants whom he previously represented have pled guilty and will testify on behalf of the Government; (2) Mr. Unglesby's prior representations were directly with Mr. DeBartolo and Mr. Guidry and arose out of gaming proceedings and suitability determinations conducted by the Louisiana State Police, contemporaneous with and substantively overlapping with criminal activities charged in the indictment; (3) Mr. Unglesby's conflicts of interest are unavoidable inasmuch as Mr. Guidry and Mr. DeBartolo are central to the alleged criminal conduct of Stephen Edwards; (4) neither Mr. Guidry nor Mr. DeBartolo assents to waiver of individual loyalty and confidentiality from Mr. Unglesby; and (5) the appearance of conflicts of interest is overwhelming.
In their argument and supplemental briefs, the Government contends that nothing short of disqualification is proper under the facts of this case.
B. Stephen Edwards' Contentions
Stephen Edwards8 and Mr. Unglesby and his law partner Karl Koch strenuously argue that no attorney-client relationship existed between Mr. Unglesby and his law firm and Mr. Guidry and Mr. DeBartolo. More specifically, Stephen Edwards and his lawyers contend that: (1) Stephen Edwards has the right to counsel of his choice; (2) no attorney-client relationship existed between Mr. Unglesby and Mr. Guidry and Mr. DeBartolo because Mr. Unglesby only represented their corporations, A-Ace Video Gaming Company ("A-Ace") and DeBartolo Entertainment Louisiana Gaming, Inc. ("DeBartolo Entertainment"), respectively; (3) Mr. DeBartolo never gave Mr. Unglesby any confidential or privileged information that was not subsequently given to the Louisiana State Police; (4) Mr. DeBartolo has waived any attorney-client privilege, if one did exist, because of the reasons set forth in number (3) and because he signed and participated in the Joint Defense Agreement;9 (5) Mr. DeBartolo knew that Mr. Unglesby was representing Stephen Edwards and did not object; (6) Mr. DeBartolo waived the privilege when his counsel inadvertently produced certain privileged documents; (7) Mr. Guidry sold A-Ace in 1997 and cannot assert a privilege; (8) Mr. Guidry was aware that Mr. Unglesby represented Stephen Edwards and did not object; (9) Mr. Unglesby does not know any information about Mr. Guidry that Stephen Edwards does not already know; and (10) Mr. Guidry waived all objections or claims of privilege by signing the Joint Defense Agreement.
In addition, Stephen Edwards argues that the Government filed the disqualification motion to gain a tactical advantage against him by disqualifying his counsel who are very capable attorneys and have knowledge of and expertise in various issues involved in this case.
In the alternative, Stephen Edwards and Mr. Unglesby contend that if the Court finds there was an attorney-client relationship between Mr. Unglesby, Mr. DeBartolo and Mr. Guidry, Stephen Edwards will waive the conflict. Stephen Edwards and Mr. Unglesby also agree that Mr. Unglesby will not cross-examine Mr. Guidry or Mr. DeBartolo if Mr. Unglesby is allowed to stay in the case.
The Sixth Amendment of the United States Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defence."10 It is clear this constitutional right to counsel "was designed to assure fairness in the adversary criminal process."11 While it is true that great deference should be given to a defendant's choice of counsel, "the appropriate inquiry focuses on the adversarial process, not on the accused's relationship with his lawyer as such."12 Thus, "while the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers."13
In resolving the issues before the Court on the pending motion, the Court notes that the two co-defendants who have already pled guilty, Mr. Guidry and Mr. DeBartolo, are entitled to the same right to counsel under the Sixth Amendment as is Stephen Edwards. The fact that the two co-defendants have pled guilty while Stephen Edwards has entered a not guilty plea does not strip Mr. Guidry and Mr. DeBartolo of their right to counsel or their attorney-client privilege with former or current counsel. The Court now turns to a discussion of the attorney-client privilege.
The "attorney client privilege is one of the oldest recognized privileges for confidential communications."14 Thus, in federal criminal cases, the federal law of privileges applies.15 In order for an attorney-client privilege to exist, there must be an attorney-client relationship between an attorney and a client. The existence of an attorney-client relationship is a question of fact to be determined by the district court.16 The test for determining whether an attorney-client relationship exists is a subjective one and hinges on the client's belief that he or she is consulting the lawyer in his professional capacity with the intention of seeking professional legal advice.17 However, this subjective belief must be a reasonable one.18 An attorney-client relationship and privilege may exist even though the attorney's fees are paid by a third person.19
Rule 501 of the Federal Rules of Evidence serves as the foundation for the attorney-client evidentiary privilege in federal court.20 Rule 501 provides that "the privilege of a witness ... shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience."21 Louisiana law also provides a statutory attorney-client privilege. Article 506 of the Louisiana Code of Evidence clearly sets forth the attorney-client privilege:
A client has a privilege to refuse to disclose, and to prevent another person from disclosing, a confidential communication, whether oral, written, or otherwise, made for the purpose of facilitating the rendition of professional legal services to the client, as well as the perceptions, observations, and the like, of the mental, emotional, or physical condition of the client in connection with such a communication, when the communication is:
(1) Between the client or a representative of the client and the client's lawyer or a representative of the lawyer.
(2) Between the lawyer and a representative of the lawyer.
(3) By the client or his lawyer, or a representative of either, to a lawyer, or representative of a lawyer, who represents another party concerning a matter of common interest.
(4) Between representatives of the client or between the client and a representative of the client.
(5) Among lawyers and their representatives representing the same client.
(6) Between representatives of the client's lawyer.22
Article 506 further provides that the privilege may be claimed...
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