Opinion
Crim. No. EP-04-CR-1509(KC).
August 12, 2004
ORDER
The Government moves to disqualify Mary Stillinger as counsel for defendant (Doc. No. 24). For the reasons set forth herein, the motion is denied.
I. BACKGROUND
On June 15, 2004, defendant was arrested. By indictment filed July 14, 2004, defendant is charged with violation of 18 U.S.C. § 371, conspiracy to defraud the United States, by adopting three Mexican women using false testimony then securing citizenship status, violation of 8 U.S.C. § 1324(a)(1)(A)(iii), alien smuggling/harboring and violation of 8 U.S.C. § 1324(a)(1)(A)(iv), encouraging and inducing others to violate immigration laws.
This Court takes no position on the age of the three young women involved herein. It further does not consider the allegations against defendant of untoward conduct toward those women as bearing on a proper resolution of this motion to disqualify.
The following facts pertaining to Mary Stillinger's representation are not in dispute. Defendant was represented by Virginia Longoria after the Government charged him with harboring undocumented aliens. On June 23, 2004, shortly after his arrest, he retained Ms. Stillinger to represent the three women, who were being held in the Doña Ana County Detention Center. That same day, Tom Stanton was appointed as attorney for the three women in guardianship proceedings in state court to secure a residence for the women when released from detention. The guardianship hearing was conducted on June 29, 2004. Ms. Stillinger was retained by defendant to secure their release from detention. Ms. Stillinger spoke with the females for a brief period of time as necessary to notify them of their rights and did not discuss the facts of the case with them. She later spoke with the Government counsel of record, Assistant United States Attorney Brandy Gardes, as well as Assistant United States Attorney Deborah Kanof, in addition to several agents, in securing their release from detention.
The Government indicated at the hearing that there was a "breakdown in communication" as to why the three were arrested. There remains some confusion as to whether the females are minors or adults, thus whether their age implicates the provisions of the Federal Juvenile Delinquency Act, 18 U.S.C. § 5031 et seq. In any event, the Government did not contemplate an indictment against the females but rather sought their detention either as material witnesses or as illegal immigrants.
While the Government alleges that Ms. Stillinger "had extensive conversations with these women," Mot. to Disqualify at 1, the Government does not explain how it arrives at this conclusion nor does it present any evidence contrary to Ms. Stillinger's representation to this Court. As such, Ms. Stillinger would be in the best position to assess the duration of her meetings with the three women and to characterize the substance of matters discussed.
On June 26, 2004, Ms. Stillinger notified Mr. Stanton that she was no longer serving as counsel for the three women. If there were some overlap between her representation of the women and defendant, such would not affect the outcome of the present order.
On July 1, 2004, prior to assignment of the present case to this Court in proceedings before Magistrate Norbert Garney, Ms. Stillinger served the Government with her Notice of Appearance and filed a Motion to Substitute as defendant's counsel. On July 7, 2004, the Government filed a Motion to Disqualify, arguing that Ms. Stillinger's prior representation of the three women constituted a conflict of interest precluding her representation of defendant in the present case. On July 14, 2004, Judge Garney by written order disqualified her as counsel for defendant.
II. DISCUSSION
The Government renews its motion to disqualify Ms. Stillinger as counsel for defendant, arguing that her representation of the three females characterized as unindicted co-conspirators and material witness in the present case constitutes an impermissible conflict of interest. Ms. Stillinger responds that under the facts of such relationship there is no conflict of interest precluding her representation of defendant.
A. Standard
An attorney may be disqualified from appearing in a criminal proceeding due to either a conflict of interest or to protect the integrity of the judicial system. United States v. Snyder, 707 F.2d 139, 145 (5th Cir. 1983). The party seeking to disqualify an attorney bears the burden of proving that disqualification is warranted, Duncan v. Merrill Lynch, Pierce, Fenner Smith, Inc., 646 F.2d 1020, 1028 (5th Cir. 1981), abrogated in part on other grounds by Gibbs v. Paluk, 742 F.2d 181 (5th Cir. 1984), and that burden is heavy, United States v. Phillips, 952 F. Supp. 480, 482 (S.D. Tex. 1996). Any doubts as to the propriety of an attorney's appearing in a case shall be resolve in favor of disqualification. LaSalle Nat'l Bank v. Lake County, 703 F.2d 252, 257 (7th Cir. 1983).
B. Analysis Under Applicable Disciplinary Rules
There is no dispute that Ms. Stillinger had an attorney-client relationship with the three females. As such, resolution of the present motion centers on the nature and substance of her prior representation in light of her present representation of defendant.
In the hearing before Judge Garney, the parties wrestled with characterization of the present problem as one of either former or concurrent representation. As the relationship between the witnesses and defendant may not reasonably be characterized as opposing sides under the general rule applicable to conflicts of interest, TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT 1.06(a), the issue properly hinges on whether the representation of the three women and defendant, whether concurrent or successive, are substantially related for purposes of Disciplinary Rules 1.05, 1.06 and 1.09.
A party seeking to disqualify opposing counsel on the ground of a former representation has the burden of establishing (1) an actual attorney-client relationship between the client and the attorney he or she seeks to disqualify and (2) a substantial relationship between the subject matter of the former and present representations. In re American Airlines, Inc., 972 F.2d 605, 614 (5th Cir. 1992). "[A] substantial relationship may be found only after the moving party delineates with specificity the subject matters, issues and causes of action common to prior and current representations and the court engages in a painstaking analysis of the facts and precise application of precedent." Id. (internal quotation marks omitted). Stated otherwise, the "`substantial relationship' test in [the] . . . disqualification [context requires a] . . . showing that the relationship between issues in the prior and present cases is patently clear [or] . . . when the issues involved have been identical or essentially the same" Government of India v. Cook Industries, Inc., 569 F.2d 737, 739-40 (2d Cir. 1978) (citations and internal quotation marks omitted).
While the Fifth Circuit has not addressed the burden of proof when a motion to disqualify is filed by an adversary rather than by the former or present client, it has noted that "[a]s a general rule, courts do not disqualify an attorney on the grounds of conflict of interest unless the former client moves for disqualification." In re Yarn Processing Patent Validity Litig., 530 F.2d 83, 88 (5th. Cir. 1976). Consistent with policy reasons discouraging tactical disqualifications by opponents, other courts have imposed a heavier burden on motions to disqualify by opponents that are not joined by the interests client or clients. See, e.g., Colyer v. Smith, 50 F. Supp. 966, 971 (C.D. Cal 1999) ("[r]ecognizing the potential abuses of the Rules in litigation . . . the burden of pro of must be on the nonclient litigant to prove by clear and convincing evidence (1) the existence of a conflict and (2) to demonstrate how the conflict will prejudice the fairness of the proceedings" (internal quotation marks omitted)). Under the present facts, the burden need not be defined with exactitude as a higher burden would not affect the outcome in this case under the typical preponderance of the evidence standard imposed herein.
The conflict analysis need go no further once a substantial relationship is established between the subject matter involved in the current and former relationships as an irrebuttable arises that confidential information was disclosed in the former relationship, thereby precluding subsequent representation. In re American Airlines, Inc., 972 F.2d at 614.
While the nature of her present representation is evident from the indictment filed, the precise nature of Ms. Stillinger's representation of the three women is less than apparent. Defendant retained her for purposes of securing the release of the three women from detention. What became apparent during the hearing was that the Government itself was not clear why the women were ultimately detained. Indeed the Government admitted that there was a "communication breakdown" as to whether the women were detained as material witnesses or illegal immigrants. Despite this apparent confusion, it is clear that the women were not detained as defendants in the present case, that the Government's representation during state proceedings in which the adoption records were unsealed was not to indict the three women and that the women are now characterized as unindicted co-conspirators. Given the evidence before this Court, it is not apparent that a representation premised on a perceived illegal detention, regardless of whether such detention was a product of a particular indictment involving separate representation, would be characterized as substantially related to the underlying indictment.
It has otherwise been stated that a movant must "prove the existence of a prior attorney-client relationship in which the factual matters involved were so related to the facts in the pending litigation that it creates a genuine threat that confidences revealed to his former counsel will be divulged to his present adversary." Texaco, Inc. v. Garcia, 891 S.W.2d 255, 256 (Tex. 1995). It remains less than apparent that Ms. Stillinger's representation of the women involved more than an illegal detention, regardless of post hoc rationalization connecting the detention to the present criminal proceedings. When characterized as detention without apparent justification, the former representation may not be characterized as substantially related. If the Government could adduce evidence that Ms. Stillinger represented the women for purposes of preserving their rights in the present criminal proceedings, there would be a stronger argument that the representations were substantially related. With that said, the evidence is lacking as to a definitive connection between the former and successive representation as would be necessary to justify this finding.
The Government does not rely solely on the fact that the women were detained as a result of defendant's indictment. It argues that Ms. Stillinger's communications with government counsel and agents as established a substantial relationship to the present criminal case. For several reasons, the communications with agents of the Government are unavailing.
Judge Garney largely relied on the "appearance of impropriety" standard in disqualifying Ms. Stillinger. While that standard has been employed in civil proceedings, see, e.g., Horaist v. Doctor's Hosp. of Opelousas, 255 F.3d 261, 266 (5th Cir. 2001) ("In considering a disqualification motion, we view the rules in light of the litigant's rights and the public interest, considering "whether a conflict has (1) the appearance of impropriety in general, or (2) a possibility that a specific impropriety will occur, and (3) the likelihood of public suspicion from the impropriety outweighs any social interests which will be served by the lawyer's continued participation in the case."), civil disqualifications are not identical to criminal disqualification proceedings given a defendant's Sixth Amendment interest in keeping the counsel of his or her choosing. Perillo v. Johnson, 205 F.3d 775, 799-804 (5th Cir. 2000). The appearance of impropriety standard has not appeared in motions to disqualify attorneys in criminal proceedings, as compared to motions to disqualify judges to which 28 U.S.C. § 455 applies, since United States v. Snyder, 707 F.2d 139, 145 (5th Cir. 1983). At the time Snyder was decided, the governing ethical standard adopted by local court rule, In re Gopman, 531 F.2d 262, 265 (5th Cir. 1976), was the American Bar Association Model Code of Professional Responsibility, Snyder, 707 F.2d at 145. Canon 9 includes the appearance of impropriety standard. Id.; see also United States v. Trafficante, 328 F.2d 117, 120 (5th Cir. 1964) ("The Preamble to the Canons of Ethics admonishes the members of the bar that their conduct should be such as to merit the approval of all good men. That conduct should not be weighed with hairsplitting nicety. We have found no exceptions to the exhortation to abstain from all appearance of evil." (internal quotation marks omitted)). Prior to January 1, 1990, Texas employed the disciplinary rules of the Texas Code of Professional Responsibility modeled after the ABA Code of Professional Responsibility. TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT (1992). Texas now follows the rules of the Texas Disciplinary Rules of Professional Conduct based on the ABA Model Rules. Id. It is further noteworthy that the ABA, in crafting the Model Rules of Professional Conduct, pointedly eliminated the appearance of impropriety standard. Bruce A. Green, 28 SETON HALL L. REV. 315, 317-18, Conflicts of Interest in Legal Representation: Should the Appearance of Impropriety Rule Be Eliminated in New Jersey — or Revived Everywhere Else? (1997). That standard is not presently included in the Disciplinary Rules adopted pursuant to Local Rule AT-4, Perillo, 205 F.3d at 801, thus would not appropriately be considered as a basis for disqualifying criminal counsel as it could not serve as a basis for disciplinary action implicating an attorney's motivations to provide less than zealous representation of a client.
As an initial matter, Ms. Stillinger does not represent the Government in this matter. Thus, there is no attorney-client relationship for which the Government may itself claim that disclosure would violate some confidence. While confidential information includes "unprivileged client information," defined as "all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client," Rule 1.05(a), it would be difficult to read this definition as incorporating information offered by the client's adversary. If such were the case, the Government could preclude a defendant's choice of counsel simply by acquainting the counsel with facts unrelated to the client and outside an indictment prior to filing an appearance. The Government concern may also implicate the relatively narrow scope of criminal discovery when compared to civil discovery in alluding to the fact that Ms. Stillinger received information she would not otherwise have been entitled to in representing defendant alone. Fox v. Mann, 71 F.3d 66, 67 (2d Cir. 1995). To the extent this implicates inadvertent disclosure of privileged information, "it is impossible to articulate a bright-line standard for disqualification where a lawyer, through no wrongdoing of his or her own, receives an opponent's privileged materials. . . . [T]here may be situations where the disclosure may cause some prejudice to movant's claim, yet other factors, such as the movant's fault contributing to the disclosure or the harm to the nonmovant from disqualification of his or her attorney, may justify denial of the motion to disqualify." In re Meador, 968 S.W.2d 346, 351 (Tex. 1998). As such, to the extent the Government presumed a limitation to Ms. Stillinger's representation that later proved to be incorrect, it, not Ms. Stillinger, bears the burden for mistaken disclosure and, as such, removal of Ms. Stillinger on those grounds would effectively transfer the responsibility for inadvertent disclosure to defendant in denying him his choice of counsel. Under the circumstances, it is not apparent how the disclosure would justify that outcome.
The information was of a historical nature, including allegations made against defendant in the past, a prior lawsuit and the Government's concerns as to defendant's contact with the three women. Information that "would not have [been] told to someone that was representing" defendant. Hrg. Tr. at 29. The Government further indicated that Ms. Stillinger indicated that "she had talked to [the three women] sufficiently to determine they had not been molested by" defendant. Id. Finally, the Government stated that "[t]here is an actual conflict through [Ms. Stillinger's] conversations with myself and Ms. Kanof. Id. at 33. Ms. Stillinger responded stating "my conversation with [Ms. Kanof] started with her telling me she thought I had a conflict because the Aleman[s] were paying me to represent the [women]," id. at 41, and further that "I certainly did not purport to give an opinion about whether or not these girls had been molested," id. at 42.
Although not binding, Crowe v. Smith, 151 F.3d 217, 233 (5th Cir. 1998), Texas case law interpreting the Texas Rules adopted by this Court provides a useful guide for their application.
Finally, it is difficult to grasp the manner in which the interests of the women would be deemed adverse to defendant's interests. "An impermissible conflict may exist or develop by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question." Rule 1.06 comment 3. In cases in which representation is not of co-defendants but rather those with "similar interests," common representation "is proper if the risk of adverse effect is minimal and the requirements of [Rule 1.06(b)] are met." Id. As to the question of divided loyalties, "[t]he critical questions are the likelihood that a conflict exists or will eventuate and, if it does, whether it will materially and adversely affect the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client." Id. comment 4.
"[T]he representation of one client is `directly adverse' to the representation of another client if the lawyer's independent judgment on behalf of a client or the lawyer's ability or willingness to consider, recommend or carry out a course of action will be or is reasonably likely to be adversely affected by the lawyer's representation of, or responsibilities to, the other client." Rule 1.06 comment 6.
Applying the foregoing to the facts of this case, it is likely that the women will serve as witnesses for the Government. The Government argues their testimony would produce two potential scenarios. First, they may testify consistently with evidence presented in the adoption proceeding and face perjury for contrary information presented to the federal government. Alternatively, the women may provide evidence contrary to that present in the adoption proceedings and thereby support the charges against defendant.
It is clear that the Government, and not the women, would be deemed to be an opposing party to defendant under either scenario. The argument is one of adverse interests. Ms. Stillinger did not represent the women in the adoption proceeding. The Government therefore contends that the mere asking of a particular question, specifically what did you previously represent in the state court proceeding, regardless of the fact that she did not represent the former clients in those state court proceedings and regardless of the fact that she did not defend the women on the present indictment, somehow establishes a conflict. No definition of an attorney's duty of loyalty would preclude an attorney's representation of an opposing party on a separate matter. The question therefore becomes one of confidences gained in the course of the representation. Neither party argues that Ms. Stillinger, in her short tenure as counsel for the women, would be in a position to know the answer to such a question. As such, the mere fact that she once represented the women would not create an obvious conflict of interest in her representing defendant.
C. Sixth Amendment Conflict of Interest Analysis
The Sixth Amendment implicates a defendant's right to qualified counsel of his or her own choosing. Wheat v. United States, 486 U.S. 153, 159 (1988). This right is tempered by a court's obligation to insure representation by counsel who is free from conflicting interests that may detract from his or her ability to provide effective representation in furtherance of defendant's Sixth Amendment right to a fair trial. Id. at 160; see also Mickens v. Taylor, 535 U.S. 162, 172 n. 5 (2002) ("we have used `conflict of interest' to mean a division of loyalties that affected counsel's performance" (emphasis in original)). While a defendant's choice of counsel is favored by a presumption of validity, such presumption may be overcome by demonstration of actual conflict or a serious potential for conflict. Wheat, 486 U.S. at 164.
The standard for disqualification in the context of criminal proceedings following Wheat is discussed and critiqued at length in Bruce A. Green, "Through a Glass, Darkly": How the Court Sees Motions To Disqualify Criminal Defense Lawyers, 89 COLUM. L. REV. 1201, 1216 (1989).
While the standard for disqualification in civil and criminal cases is not a perfect analog, given the Sixth Amendment interest of a defendant in a criminal trial, the ethical issues that bear heavily upon determinations in civil proceedings, see In re American Airlines, Inc., 972 F.2d 605, 610 (5th Cir. 1992) (applying rules of ethics from various sources in determining propriety of disqualification), are, at least to some extent, read into the conflict of interest analysis in criminal proceedings. Perillo v. Johnson, 205 F.3d 775, 799-804 (5th Cir. 2000) (applying ethical standards in analyzing analysis of existence of actual conflict). This partial or total incorporation of ethical rules should come as no surprise given the fact that a counsel who may potentially violate applicable rules of professional conduct and face disciplinary action therefor may be restricted in his or her ability to zealously represent a defendant's interests.
The Court in Perillo refers to ethical standards as probative in the conflict of interest analysis and largely discusses the Texas Disciplinary Rules of Professional Conduct applicable to counsel under the facts of that case. There is some question as to whether ethical guide lines that would not apply to a particular attorney, as would be the case in a civil motion to disqualify, would bear on the conflict of interest analysis in a criminal motion to disqualify. At a minimum, as this Court has adopted the same rules as Perillo, see Local Rule AT-4, those rules are clearly relevant to resolution of the present motion to disqualify.
With that said, an attorney may be subject to disqualification for either an actual or a potential conflict of interest. "An attorney has an actual, as opposed to a potential, conflict of interest when, during the course of the representation, the attorney's and defendant's interests diverge with respect to a material factual or legal issue or to a course of action." United States v. Perez, 325 F.3d 115, 125 (2d Cir. 2003) (internal quotation marks omitted); see also Perillo, 205 F.3d 775, 781 (5th Cir. 2000) ("actual conflict exists when defense counsel is compelled to compromise his or her duty of loyalty or zealous advocacy to the accused by choosing between or blending the divergent or competing interests of a former or current client" (internal quotation marks omitted)). "An attorney has a potential conflict of interest if the interests of the defendant may place the attorney under inconsistent duties at some time in the future." Perez, 325 F.3d at 125 (internal quotation marks omitted).
Under the facts of the present case, this Court concludes that Ms. Stillinger is subject to a potential conflict of interest rather than an actual conflict of interest. It is not apparent that the conflict arises to the level of a serious potential conflict of interest. Mindful of the fact that a "district court may refuse to accept a defendant's waiver of the conflict issue because it has an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them," United States v. Vasquez, 995 F.2d 40, 43 (5th Cir. 1993), this Court is not convinced that Ms. Stillinger's appearance would violate applicable ethical rules or result in proceedings that would appear unfair or improper. In conclusion, the totality of the evidence presented through motions and the two hearings does not suffice to disqualify Ms. Stillinger, and an order disqualifying defendant's choice of counsel would too readily dismiss the presumption in favor of his choice. Defendant is directed to appear at the conclusion of docket call, presently scheduled for September 3, 2004, at which time his waiver of any conflict of interest will be entered as a matter of record.
III. CONCLUSION
The Government's motion to disqualify (Doc. No. 24) is denied.
SO ORDERED.