U.S. v. O'Malley

• Decision Date: 12 March 1986
• Docket Number: No. 85-1807,85-1807
• Citation: 786 F.2d 786
• Parties: 20 Fed. R. Evid. Serv. 455 UNITED STATES of America, Plaintiff-Appellee, v. David O'MALLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 786

786 F.2d 786

20 Fed. R. Evid. Serv. 455

UNITED STATES of America, Plaintiff-Appellee, v. David O'MALLEY, Defendant-Appellant.

No. 85-1807.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 9, 1985.

Decided March 12, 1986.

Leland Shalgos, Lynch & Shalgos, Chicago, Ill., for defendant-appellant.

Pierre Talbert, Asst. U.S. Atty., Anton R. Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before BAUER, CUDAHY, and FLAUM, Circuit Judges.

BAUER, Circuit Judge.

Defendant David O'Malley was convicted by a jury of two counts of extortion and sentenced to ten years imprisonment to be followed by five years probation. Defendant appeals his conviction, claiming that the trial judge's disqualification of his original attorney violated his sixth amendment right to the assistance of counsel. We affirm the trial court's ruling.

I.

A federal grand jury indicted O'Malley on two counts of extortion on April 17, 1984. On May 21, 1984, the government moved to disqualify O'Malley's retained counsel, Leland Shalgos. Shalgos had previously represented John Einoder in two criminal matters, and had been recommended to Einoder by O'Malley. The government asserted that Einoder would be a key witness in its prosecution of O'Malley, and that allowing Shalgos to represent O'Malley would give O'Malley an unfair advantage at trial, violate Einoder's attorney-client privilege, and preclude Shalgos from effectively representing O'Malley. The government's motion for disqualification included an affidavit by Einoder asserting his attorney-client privilege as to confidences he revealed to Shalgos while Shalgos represented him and alleging that some of these confidences concerned O'Malley. Shalgos denied that any conflict of interest existed between his prior representation of Einoder and his representation of O'Malley, arguing that the circumstances of the several cases were unrelated.

The trial judge found that Shalgos's representation of O'Malley in the instant case was improper and ordered him disqualified. In making this determination, the court noted that Shalgos did not deny that his representation of Einoder was suggested by O'Malley or that some of Einoder's confidences involved O'Malley. The trial judge also considered that Einoder had been charged with 55 counts of theft and related offenses in one of the cases in which Shalgos had represented him. The trial judge concluded that it was "fair to infer" from this that Shalgos possessed confidential information, including specific instances of misconduct involving matters of truthfulness, which Shalgos potentially could use to impeach Einoder's credibility as a witness. The trial judge believed that Shalgos might be able to use these confidences in the defense of O'Malley "and, particularly, in cross-examination of Mr. Einoder," to the detriment of Einoder, the government, and the public. TR. 4. Therefore, the trial judge held that, in view of "all of the circumstances present here, and in evaluating the interests of the defendant, the witness, the public and the government, Mr. Shalgos must be disqualified, and I so order." Id.

In response to a question by Shalgos as to whether the court was concerned only with whether he could effectively represent O'Malley, the trial judge noted that because it was incumbent on Shalgos to impeach Einoder's credibility, Shalgos was "caught in a dilemma of probably having to violate some confidences instilled in [him] by virtue of a prior representation in discharging [his] obligation to represent O'Malley to the fullest extent possible." TR. 5. The trial judge told Shalgos, however, that he should be disqualified because "if you look simply at the public interests here and the notion of fairness, [I] do not see how I could permit you to vigorously cross examine a former client with whom you had a substantial relationship in an attempt to discredit that former client to the advantage of your present client, based on the information that you and he exchanged." TR. 6.

Shalgos had suggested that an in camera hearing to determine the specific confidences Einoder had revealed to Shalgos might be proper. The trial judge disagreed, stating that an in camera hearing was not necessary given the information already before the court. TR. 6. The trial judge told Shalgos that the case in which he represented Einoder on the 55 count indictment "was considerable and I have no doubt, frankly, as I sit here that some of those communications would be helpful to you and would be useable by you in cross examining Mr. Einoder." Id. The court then ordered O'Malley to obtain different counsel. The case subsequently went to trial with O'Malley's second attorney and a jury found O'Malley guilty as charged. O'Malley now appeals solely on the issue of whether the disqualification of Shalgos violated his sixth amendment right to counsel.

II.

The government first argues that the disqualification of Shalgos was required by Canons 4 and 9 of the A.B.A. Code of Professional Responsibility. ¹ Canon 4 requires an attorney to maintain the confidences of a client revealed in the course of the attorney-client relationship. Canon 9 requires an attorney to avoid even the appearance of impropriety. In support of its argument, the government cites a number of cases from this circuit that upheld an attorney's disqualification based upon the strictures embodied in these two canons of ethics. ² These cases, however, are all civil cases and do not involve consideration of the sixth amendment right to the assistance of counsel. ³ A separate line of cases address a criminal defendant's right to the counsel of his choice.

Unlike a civil defendant, a criminal defendant's choice of his counsel is protected by the sixth amendment. In Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the Supreme Court stated: "It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice." 287 U.S. at 53, 53 S.Ct. at 58. This court stated in United States v. Seale, 461 F.2d 345 (7th Cir.1972), that the sixth amendment right to the assistance of counsel "certainly means that it is the actual choice of the defendant which deserves consideration." 461 F.2d at 358. Accord Morris v. Slappy, 461 U.S. 1, 21-23, 103 S.Ct. 1610, 1621-23, 75 L.Ed.2d 610 (1983) (Brennan, J., concurring) (discussing cases that protect criminal defendant's right to choose his own counsel). As we discuss later, a criminal defendant's right to the counsel of his choice is not absolute. A defendant may, however, waive his right to effective assistance of counsel in order to proceed with the attorney of his choice. See United States v. Armedo-Sarmiento, 524 F.2d 591, 592 (2d Cir.1975); United States v. Garcia, 517 F.2d 272, 277 (5th Cir.1975).

As to the ethical concerns in cases where the defendant's counsel has previously represented a government witness, the witness's attorney-client privilege may be protected by limiting the examination of the witness. See, e.g., United States v. Cunningham, 672 F.2d 1064, 1073 (2d Cir.1982). Moreover, by limiting the examination of a witness who asserts an attorney-client privilege in such a way that his confidences are fully protected, the court may avoid any appearance of impropriety. Similarly, ensuring that the defendant knowingly and intelligently waives his right to conflict-free counsel will avoid an appearance of impropriety. See, e.g., Cunningham, 672 F.2d at 1073. These matters are within the discretion of the trial court. See United States v. James, 708 F.2d 40, 45 (2d Cir.1983).

Given the weight of the defendant's constitutional right to the counsel of his choice and the trial court's ability to protect the attorney-client privilege and prevent the appearance of impropriety, we refuse to apply to a criminal case the holdings in the civil cases cited above by the government. We also decline to adopt a per se rule of disqualification based on Canons 4 and 9 of the A.B.A. Code of Professional Responsibility when an actual conflict of interests exists. We agree with the Second Circuit that the decision to disqualify an attorney in a criminal case requires an evaluation of the interests of the defendant, the government, the witness and the public in view of the circumstances of each particular case. See United States v. James, 708 F.2d 40, 44 (2d Cir.1983); United States v. Cunningham, 672 F.2d 1064, 1073 (2d Cir.1982). Accord United States v. Garcia, 517 F.2d 272, 273 (5th Cir.1975). ⁴

In James the Second Circuit first considered the defendant's interest in retaining his preferred counsel and noted that the defendant had been represented by the same attorneys "for a significant number of years." 708 F.2d at 44-45. The James court then considered the interests of the government witness who, like Einoder in this case, was formerly represented by the defendant's attorneys. The court found it significant that the witness, through his own attorney, filed a separate motion to disqualify the defendant's attorneys. 708 F.2d at 45. The James court viewed this as an indication that the witness believed the risk of intrusion into his attorney-client privilege to be substantial. Id. The court then independently examined this risk, considering the duration of and the subject matter covered by the attorneys' prior representation of the witness. The James court held that the district court's finding that it was "very likely" that the attorneys "were privy to confidential communications from [the witness]" was not clearly erroneous. Id. The court then stated that "[t]his circumstance in itself strongly suggests the granting of the disqualification motion," id., citing the following language in United States v. Ostrer, 597 F.2d 337, 339-40 (2d Cir.1979):

[D]isqualification motions should be granted where the attorney in question is potentially in a position to use...