U.S. v. Kitchin
| Decision Date | 09 April 1979 |
| Docket Number | No. 78-2843,78-2843 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Louis Leonard KITCHIN, Jr., Defendant-Appellant. Summary Calendar. * United States Court of Appeals, Fifth Circuit |
| Court | U.S. Court of Appeals — Fifth Circuit |
Taylor W. Jones, Atlanta, Ga., for defendant-appellant.
William L. Harper, U. S. Atty., Julie E. Carnes, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before AINSWORTH, GODBOLD and VANCE, Circuit Judges.
Affirmed on the basis of the findings and conclusions contained in the order of the district court which is appended hereto as an appendix.
AFFIRMED.
APPENDIX
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
The defendant in the above styled criminal case is charged with bribery of a public official and obstruction of justice in violation of 18 U.S.C. §§ 201(b) and 1503, respectively, by attempting to influence the then United States Attorney for the Northern District of Georgia, John Stokes, to dismiss federal criminal charges pending against Marshall Cohen. United States v. Cohen, Criminal Action No. CR-75-445-A (N.D.Ga.). Presently pending are the government's motion to disqualify the defendant's attorney, Taylor W. Jones, and the motion to withdraw of the defendant's former attorney, James Simmons.
The magistrate submitted a report and recommendation that Jones be disqualified. The court agrees but not for the reasons stated in the report and recommendation.
The defendant's alleged misconduct apparently came to light as the result of Cohen's motion to dismiss his own criminal action because of governmental misconduct or in the alternative to disqualify the United States Attorney for the Northern District of Georgia. Cohen charged that Stokes was influenced or subjected to influence. Judge Newell Edenfield, the presiding judge in Cohen's case, ordered a closed hearing on the matter at which Steven Ludwick, assistant United States Attorney, represented the government. In preparing for the hearing Ludwick worked with an FBI agent investigating Cohen's allegations and became aware of the defendant's role in the alleged attempt to influence Stokes. In fact, the defendant testified at the In camera hearing.
After Cohen's motions were denied, Stokes turned the matter over to Ludwick who by this time was chief of the Criminal Division. Ludwick assigned the case to another assistant United States Attorney who recommended that Stokes' office refrain from further involvement because of potential conflicts of interest. A similar recommendation was made by still another assistant United States Attorney. At various times, Ludwick, who shared the same opinion, discussed with these assistants and Stokes the question of whether the case should be prosecuted by the United States Attorney for the Northern District in view of Stokes' posture as the target of the bribery attempt. Therefore, Ludwick was significantly involved in the development of this criminal action prior to indictment and was privy to relevant information then possessed by the government.
In February of 1978 Ludwick left the United States Attorney's office and accepted a position as an associate with Jones. 1 This occurred three months before the present indictment was filed. There is no evidence in the record to imply that Ludwick's joining Jones' law firm or the defendant's employment of Jones was influenced by Ludwick's previous participation in the case on behalf of the government. Jones is the only attorney of record for the defendant and Ludwick states that he would not participate in the case.
The issue presented by the government's motion requires a difficult balancing of a criminal defendant's right to counsel of his choice and the public's interest in the integrity of the judicial process and in a fair but vigorous prosecution of one accused of attempting to disrupt the enforcement of criminal laws. 2
A defendant's right to counsel of his choice is not absolute and must yield to the higher interest of the effective administration of the courts. Gandy v. Alabama, 569 F.2d 1318 (5th Cir. 1978). The right is specifically limited by the trial court's power and responsibility to regulate the conduct of attorneys who practice before it. See United States v. Dinitz,538 F.2d 1214 (5th Cir. 1976); Kremer v. Stewart, 378 F.Supp. 1195 (E.D.Pa.1974). The determination of whether the defendant's Sixth Amendment right overrides the conduct of his attorney is committed to the trial court's discretion. United States v. Dinitz, supra, at 1219.
On the other hand, acts which appear to violate the ABA Code or other accepted standards of legal ethics do not confer upon the trial court unfettered discretion to disqualify the attorney selected by a party. Woods v. Covington County Bank, 537 F.2d 804 (5th Cir. 1976). An attorney may be disqualified only when there is "a reasonable possibility that some specifically identifiable impropriety" actually occurred and, in light of the interests underlying the standards of ethics, the social need for ethical practice outweighs the party's right to counsel of his choice. Id. at 810 and 813.
While the concerns expressed by the court of appeals in Woods are heightened by the fact that the defendant here is threatened with the loss of liberty, they are also tempered by the different circumstances presented in this case. In Woods, there was a technical violation of the ABA Code by the plaintiff's attorney raised, not by the potentially injured former client, but by the defendants. The court implied that the motion was prompted more by litigation tactics than a selfless interest in legal ethics. Id. at 813 and 817. In fact, the government in Woods gave every indication of condoning and encouraging the attorney's conduct which it was felt would benefit servicemen who were former prisoners of war. Id. at 814-816. Here the conflict of interest is invoked by the party whom it most seriously affects.
Also, it was not entirely apparent from the facts in Woods that the challenged attorney violated the spirit and intent of the standards of legal ethics. Id. at 814-18. Based on the ABA Code and the case law, the same cannot be said of Jones' representation of the defendant.
Under Canon 4 of the ABA Code and its predecessors, a lawyer may not accept employment representing interests adverse to those of a prior client. The purpose of this rule is to ensure the confidentiality of information received in the service of a previous employer. So long as the affected party can show that the matters involved in the previous representation are substantially related to those in an action in which the attorney represents an adverse party, the former client is entitled to the disqualification of the lawyer. In re Yarn Processing Patent Validity Litigation, 530 F.2d 83 (5th Cir. 1976); American Can Co. v. Citrus Feed Co., 436 F.2d 1125 (5th Cir. 1971); United States v. Trafficante, 328 F.2d 117 (5th Cir. 1964); American Roller Co. v. Budinger, 513 F.2d 982 (3rd Cir. 1975); Hull v. Celanese Corp., 513 F.2d 568 (2nd Cir. 1975); Cord v. Smith, 338 F.2d 516 (9th Cir. 1964).
In this case it is clear that these criteria have been met. Ludwick was actively involved on behalf of the United States in an early stage of this matter and is now associated with the defendant's attorney. The aggrieved party need not prove that Ludwick actually obtained confidential information nor that he has or will disclose it to his present employer. In re Yarn Processing Patent Validity Litigation, supra, at 89; United States v. Trafficante, supra, at 120; American Roller Co. v. Budinger, supra, at 984; Hull v. Celanese Corp., supra, at 572. The rationale for such a rule is obvious. A close examination of information Ludwick learned while an assistant United States Attorney might well vitiate the secrecy of the communications. See Cord v. Smith, supra, at 524. In addition, public trust in the confidence with which an attorney receives potential evidence from a client would soon disappear if the lawyer were permitted to establish the same fiduciary relationship with an adverse party. In re Yarn Processing Patent Validity Litigation, supra, at 89; American Can Co. v. Citrus Feed Co., supra, at 1128. That concern is even greater in a case involving the public's interest in the prosecution of alleged criminal acts as opposed to civil litigation.
Finally, given the presumed interplay among lawyers who practice together, the rule applies not only to individual attorneys but also requires disqualification of the entire firm as well as all employees...
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