U.S. v. Ostrer

• Citation: 597 F.2d 337
• Decision Date: 23 April 1979
• Docket Number: D,No. 486,486
• Parties: UNITED STATES of America, Appellee, v. Louis C. OSTRER, Defendant-Appellant. ocket 78-1318.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 337

597 F.2d 337

UNITED STATES of America, Appellee, v. Louis C. OSTRER, Defendant-Appellant.

No. 486, Docket 78-1318.

United States Court of Appeals Second Circuit.

Argued Jan. 16, 1979.

Decided April 23, 1979.

Alan M. Dershowitz, Cambridge, Mass. (Silverglate, Shapiro & Gertner, Boston, Mass., Harvey A. Silverglate and Ann Lambert Greenblatt, Boston, Mass., of counsel), for defendant-appellant.

Richard F. Ziegler, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty. S. D. N. Y., Alan R. Naftalis and Howard W. Goldstein, Asst. U. S. Attys., New York City, of counsel), for appellee.

Before WATERMAN, GURFEIN and VAN GRAAFEILAND, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

This is an appeal from an order of the United States District Court for the Southern District of New York disqualifying Michael B. Pollack, Esq., from representing appellant in a pending criminal prosecution. The ground for disqualification was that, while employed as a Government attorney Pollack had participated in criminal investigations so related to the present action ¹ that he now is in a position to use information obtained during those investigations to aid his present client. We affirm.

From 1970 to 1975, Pollack was employed by the Department of Justice as a special attorney assigned to the Brooklyn Strike Force. While he was serving as a federal prosecutor, Pollack's official duties brought him into contact with three persons whom the Government intends to call as witnesses at appellant's trial. Pollack personally prosecuted two of those men, Barresi and Geller, and called the third, Brown, as a witness at Geller's trial.

Pollack's prosecution of Barresi arose from Barresi's alleged extortionate activities as an officer of the union local from which appellant is charged with having embezzled.$2.3 million. Pollack prosecuted Geller for income tax evasion in connection with an alleged scheme to draw unearned money from a corporation in the form of salaries and deduct the withdrawals from the corporation's income as legitimate business expenses. ² Geller and Brown owned check-cashing establishments in New York City. Brown had sold an establishment to Geller and frequently stopped by to help him learn the business. Pollack interviewed Brown and called him as a witness at Geller's trial. After the trial, Pollack had discussions with the New York County District Attorney's office concerning its investigation of illegal check-cashing operations, an investigation which extended to the businesses of Geller and Brown. Pollack arranged for federal agents under his supervision to review papers seized from Brown's establishment. They were also given access to evidence seized from Geller's place of business. ³

The Government intends to call both Geller and Brown to testify concerning transactions they had with appellant in connection with their check-cashing operations. Their testimony will be offered in support of the Government's claim that appellant attempted to avoid paying income taxes by using fictitious entities and false names to conceal his true financial status. The Government contends that Pollack's earlier supervision of the review of the documents seized from the check-cashing establishments of Geller and Brown revealed information to him about the matters concerning which Geller and Brown will be asked to testify. ⁴ The Government made no showing as to Barresi's anticipated testimony or the relationship between his alleged extortionate activities and the conduct forming the basis of the instant indictment, representing only that "Pollack's involvement as the prosecutor of (Barresi) doubtless provided information to him which perhaps could be of use to him when Barresi appears as a Government witness in the trial of this case."

This Court recently noted that disqualification motions should be granted where the attorney in question is potentially in a position to use privileged information obtained during prior representation of the movant. ⁵ Board of Education v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979). Disqualification of counsel in such cases is rooted in notions of fundamental fairness; allowing an attorney to represent a client in a situation where he may use information obtained in the course of former representation of the client's adversary gives the client an "unfair advantage." Id. at 875-76; See Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 571 (2d Cir. 1973); Note, Attorney's Conflict of Interests: Representation of Interest Adverse to That of Former Client, 55 B.U.L.Rev. 61, 64 (1975) (purpose of Canon 4 is to ensure "fundamental fairness").

The applicability of this standard of conduct to former Government attorneys is clear, See General Motors Corp. v. City of New York, 501 F.2d 639, 648-49 (2d Cir. 1974); Empire Linotype School, Inc. v. United States,143 F.Supp. 627, 631-33 (S.D.N.Y.1956); United States v. Standard Oil Co.,136 F.Supp. 345 (S.D.N.Y.1955), ⁶ and is supported by sound policy considerations. Allowing an attorney to represent a client in a matter with which he became uniquely familiar during his public employment may encourage Government attorneys to conduct their offices with an eye toward future private employment. Handelman v. Weiss, 368 F.Supp. 258, 264 (S.D.N.Y.1973); ABA Comm. on Professional Ethics, Opinions, No. 342 at 9 (1975); New York State Bar Association Comm. on Professional Ethics, Opinions, No. 506 at 2 (1979). Allowing such representation also unduly favors those litigants whose attorneys were able to gather valuable pertinent information while on the Government payroll. Allied Realty, Inc. v. Exchange National Bank, 283 F.Supp. 464, 467 (D.Minn.1968), Aff'd, 408 F.2d 1099 (8th Cir.), Cert. denied, 396 U.S. 823, 90 S.Ct. 64, 24 L.Ed.2d 73 (1969). Finally, as in all Canon 4 cases, the danger exists that the former Government attorney may breach a confidence by divulging or unfairly utilizing information obtained in the course of his former employment. Emle Industries, Inc. v. Patentex, Inc., supra, 478 F.2d at 571.

These considerations are pertinent not only where the issues involved in the lawyer's former and present representation are the same, but also where, as here, the privileged information obtained in the course of the former representation may be used to impeach or discredit important Government witnesses in a closely related matter. The principle is well established that an attorney should be disqualified from opposing a former client if during his representation of that client he obtained information "relevant to the controversy...