US v. Childress, Crim. No. 89-0162 (CRR).

• Decision Date: 01 March 1990
• Docket Number: Crim. No. 89-0162 (CRR).
• Court: U.S. District Court — District of Columbia
• Parties: UNITED STATES of America v. Willie CHILDRESS, et al.

731 F. Supp. 547

UNITED STATES of America v. Willie CHILDRESS, et al.

Crim. No. 89-0162 (CRR).

United States District Court, District of Columbia.

March 1, 1990.

Jay B. Stephens, U.S. Atty. for the District of Columbia, Barry M. Tapp, David Shertler, and Charles Ambrose, Asst. U.S. Attys., for United States.

Thomas B. Mason and Lisa Greenman of the Public Defender Service, Washington, D.C., for defendant H.S., Jr.

W. Gary Kohlman of Kohlman & Rochon, Washington, D.C., for defendant Constance Perry.

Nina Kraut, Washington, D.C., for defendant Raynice Thompson.

OPINION

CHARLES R. RICHEY, District Judge.

On February 26, 1990, only ten minutes before the Court was to take the bench and begin jury selection in this second trial of a multi-defendant conspiracy case, the Public Defender Service ("PDS") filed a motion on behalf of its client H.S., Jr. for the disqualification of Mark Rochon, who entered his appearance as one of Constance Perry's attorneys on February 23, 1990. Sometime in the last few weeks, Mr. Rochon entered into a law partnership with Gary Kohlman, Ms. Perry's lead counsel in this case since at least May 1989. After oral argument on this issue, the Court ruled from the bench that Mr. Rochon's prior representation of H.S., Jr. while at PDS creates a potential conflict of interest, which requires his disqualification, but that H.S., Jr.'s waiver as to Mr. Kohlman allows him to continue representing Ms. Perry. Ms. Perry, through Mr. Kohlman, has filed a motion for reconsideration of this Order, which the Court will deny.

I. Relevant Facts and Allegations

Pending before this Court are cocaine distribution charges against H.S., Jr. arising out of the identical facts and circumstances underlying the conspiracy charges against Ms. Perry. H.S., Jr. would be a co-defendant along with his alleged co-conspirators in this trial but for his status as a juvenile. H.S., Jr., who will be tried at a later date, has already appeared at least twice before this Court at a hearing to determine whether he should be transferred to adult status for the purpose of criminal prosecution.

H.S., Jr.'s motion alleges that beginning in January 1989, Mr. Rochon — then Trial Chief of PDS — "took an active role in the representation of H.S., Jr."; "was frequently and extensively consulted by the attorneys of record in the various proceedings in which H.S., Jr. has appeared"; and "actually represented H.S., Jr. in matters that occurred prior to the lodging of formal charges." PDS Motion at 2. While the motion concedes that Mr. Rochon never met H.S., Jr., it alleges that Mr. Rochon was privy to confidential attorney-client communications. PDS also stated at the February 26, 1990 oral argument on this issue that Mr. Rochon's involvement in H.S., Jr.'s case was extensive, including assisting in witness preparation for H.S., Jr.'s transfer hearing before this Court and meeting with government counsel to discuss his case as recently as January of this year. Furthermore, PDS specifically said that H.S., Jr. was not seeking the disqualification of Mr. Kohlman, and in the afternoon of February 26, 1990 H.S., Jr. submitted to the Court, through PDS, a detailed written waiver of his right to seek Mr. Kohlman's disqualification from this case based on his being Mr. Rochon's law partner.

Mr. Rochon conceded at oral argument that there may be a potential conflict of interest but stated that there is none in Ms. Perry's view. Moreover, Mr. Rochon denied that he had learned any confidential information that might harm H.S., Jr.'s interests. Ms. Perry's Motion for Reconsideration states that H.S., Jr.'s interests cannot be disserved in this case because he is not a party in this trial and neither the government nor the defense will call him as a witness. The government stated at oral argument that it perceives no conflict of interest between H.S., Jr. and Ms. Perry.

II. Analysis

(1) Mr. Rochon's Potential Conflict of Interest

Although Mr. Rochon's representation of Ms. Perry in this trial may not create a conflict of interest at this time, it certainly does create a potential conflict of interest which, as the trial progresses, may become an actual conflict in violation of the Code of Professional Responsibility ("Code"), adopted by this Court in Local Rule 706(a).¹ The Court holds that this potential conflict of interest exists,² because it cannot conclude on this record that Mr. Rochon did not learn any confidential information during his prior representation of H.S., Jr. at PDS.³

That Mr. Rochon never met or spoke with H.S., Jr. is by no means dispositive. What matters is whether Mr. Rochon and H.S., Jr. had an attorney-client relationship. The Code states in relevant part that an attorney

shall not knowingly:

(1) Reveal a confidence or secret of his client.

(2) Use a confidence or secret of his client to the disadvantage of his client.

(3) Use a confidence or secret of his client for the advantage of ... a third person....

DR 4-101(B); accord D.C.Rules 1.6(a), (b). It is simply incorrect to argue, as Mr. Kohlman does, that when several lawyers in a law firm cooperate and consult each other in the course of representing an individual, an attorney-client relationship exists only with respect to those attorneys who actually met and spoke with that individual.

Even though only Mr. Rochon's colleagues at the "law firm" PDS — and not Mr. Rochon himself — may have had direct contact with H.S., Jr., the Court cannot conclude on this record that Mr. Rochon and H.S., Jr. did not have an attorney-client relationship.⁴ Before he left PDS, Mr. Rochon was extensively involved in representing H.S., Jr. and worked in close consultation with other PDS attorneys, some of whom must have had direct contact with H.S., Jr. It is highly likely that Mr. Rochon obtained some of H.S., Jr.'s confidences or secrets in the course of consulting with his colleagues at PDS. Moreover, H.S., Jr. and PDS directly contradict Mr. Rochon's statement that he never learned any confidential information from H.S., Jr. In resolving this dispute, the Court must err on the side of protecting confidential information divulged during that most important relationship between attorney and client.

The test for deciding whether a so-called "successive conflict of interest" exists is whether the matter in which an attorney represents a current client is "substantially related" to the matter in which he or she represented a former client. See National Souvenir Center v. Historic Figures, Inc., 728 F.2d 503, 517 (D.C.Cir.), cert. denied, 469 U.S. 825, 105 S.Ct. 103, 83 L.Ed.2d 48 (1984). Mr. Rochon's prior representation of H.S., Jr. not only is substantially related — but is much closer to identical — to Ms. Perry's matter before the Court. In fact, but for his status as a juvenile, H.S., Jr. would be Ms. Perry's co-defendant in this trial.

Despite the government's failure to recognize any potential conflicts, the Court can envision at least two scenarios arising during the course of the trial in which Mr. Rochon would have to choose between the two ethical duties of defending Ms. Perry zealously within the bounds of the law, see Code Canon 7; DR 7-101; DR 7-102; accord D.C.Rules 1.3, and not revealing confidential information obtained from H.S., Jr. The government will presumably put on direct testimony implicating Ms. Perry. It is conceivable that Mr. Rochon could effectively rebut that testimony on cross-examination by using a piece of confidential information learned from H.S., Jr., but that information — if divulged — would harm H.S., Jr.'s interests and could possibly be used against him by the government in some later proceeding. If Mr. Rochon is not disqualified and Ms. Perry is convicted, another possible conflict could arise at her sentencing proceeding, where her interests might best be served by somehow implicating H.S., Jr. using confidential information obtained from him by Mr. Rochon.

While other conflicts may arise, these scenarios demonstrate how this potential conflict of interest could become real and very problematic during the course of this trial. Moreover, the Court is satisfied that the possibility of such a conflict arising is neither fanciful nor minimal. Assuming without deciding, for the purposes of this motion, the truth of the government's allegations against H.S., Jr., he was not a minor insignificant participant in the conspiracy. In addition, H.S., Jr.'s name cropped up repeatedly throughout the first Edmond trial, which involved many of the same allegations and evidence at issue in this trial. Under these circumstances, and especially in a case of this magnitude, the Court cannot risk the consequences of a conflict of interest arising during trial.

Nor is it improper for this Court to disqualify Mr. Rochon merely because it cannot predict with certainty whether this potential conflict of interest will become a full-blown conflict during trial. As the Supreme Court noted recently in an analogous context:

Unfortunately for all concerned, a district court must pass on the issue of whether or not to allow a waiver of a conflict of interest by a criminal defendant not with the wisdom of hindsight after the trial has taken place, but in the murkier pre-trial context when relationships between parties are seen through a glass, darkly. The likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict, even for those thoroughly familiar with criminal trials.

... We think the District Court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses.

Wheat v. United States, 486 U.S. 153, 162-64, 108 S.Ct. 1692, 1699, 100 L.Ed.2d 140 (1988) (emphasis added). Relying...