Opinion
05 Cr. 774 (RPP).
May 29, 2007
OPINION AND ORDER
The United States moves to disqualify Ronald Rubinstein Esq. and Joseph Corozzo Esq. as counsel for Defendant, Ciro Perrone. For the reasons that follow, the motion is denied.
BACKGROUND
On May 21, 2007, Mr. Perrone was indicted, by a grand jury in the Southern District of New York, on a four count superseding indictment. The central charges relate to Mr. Perrone's violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., by his participation in gambling and loan sharking activities conducted by the Genovese Organized Crime Family of La Cosa Nostra from the late 1980s to July, 2005. The original indictment was filed in 2005 against Mr. Perrone and nineteen other alleged members of the Genovese Family. From September 11 through October 30th, 2006, a jury trial, of Mr. Perrone and three other defendants, was conducted in front of Chief Judge Wood. Mr. Perrone was represented by Mr. Rubinstein, and Mr. Corozzo represented Paul Kahl, Mr. Perrone's son-in-law. On November 13, 2006, the jury found Mr. Perrone not guilty on obstruction charges but was unable to come to a unanimous decision on the remaining counts, including a RICO count and a RICO conspiracy count. Mr. Kahl was acquitted of all the charges against him. Mr. Perrone is the only remaining defendant from that case. On April 5, 2007, a trial date of May 29, 2007 was set by Chief Judge Wood. In early May, this Judge agreed to conduct the trial commencing on May 29, 2007.
Count One charges Violation of RICO; Count Two charges conspiracy to violate RICO, 18 U.S.C. § 1962(d); Count Three charges conspiracy to make extortionate extensions of credit, 18 U.S.C. § 892; Count Four charges conspiracy to use means to collect extortionate lines of credit, 18 U.S.C. § 894.
On May 14, 2007, counsel appeared for a pretrial conference. At that conference, Mr. Rubinstein indicated that Mr. Corozzo, his partner, might be aiding him in the retrial of Mr. Perrone. (Transcript, dated May 14, 2007 ("5/14 Tr.") at 16.) The government announced that it intended to call a new witness, Anthony Ruggiano, an alleged member of the Gambino Crime Family, at the retrial. The government also alerted the Court that it was aware of Mr. Rubinstein's and Mr. Corozzo's prior representation of Mr. Ruggiano. The government indicated that "[c]alling him presents a slight problem for the defense . . . given that Mr. Rubinstein has a duty of loyalty to all of his former clients." (Id. at 18.) The government indicated that it would be submitting a letter on the subject. (Id. at 20.)
By letter, dated May 18, 2007, the government moved the Court to disqualify Mr. Rubinstein and Mr. Corozzo as counsel for Mr. Perrone setting forth each attorney's prior representation of Mr. Ruggiano. On May 21, 2007, the Court ordered a Curcio hearing to be held on May 23, 2007. Defense counsel submitted a letter in opposition to the government's motion on May 22, 2007. On May 23, 2007, the Court held a Curcio hearing at which Mr. Perrone was advised of the nature of the conflict of both of his attorneys. After consulting with independent counsel, Mr. Perrone waived his right to conflict-free representation in favor of his current chosen counsel despite being advised that the Court would probably limit cross-examination of Mr. Ruggiano to matters reflected in the public record (e.g. prior convictions), and in the 3500 materials. The government maintained that Mr. Corozzo's and Mr. Rubinstein's prior representation was an unwaivable conflict because of their continuing duty of loyalty to Mr. Ruggiano, and submitted a further letter to that end on May 23, 2007. Defense counsel responded on May 24, 2007.
DISCUSSION
A. Sixth Amendment
The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to . . . the Assistance of Counsel for his defense." U.S. CONST. AMEND. VI. Dueling Sixth Amendment rights are implicated in this case due defense counsel's alleged conflicts of interest: the right to be represented by counsel of one's own choosing, and the right to a zealous attorney, uninhibited by conflicting duties to another client. The Supreme Court has noted the precarious choice a district court faces in attempting to balance these competing guarantees before a trial:
Unfortunately for all concerned, a district court must pass on the issue 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.Wheat v. United States, 486 U.S. 153, 162-163 (1988). Thus, while "[a] [d]istrict [c]ourt must recognize a presumption in favor of petitioner's counsel of choice . . . that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict." Id. at 164.
An "actual conflict" is one where the attorney's and the defendant's interests "diverge with respect to a material factual or legal issue or a course of action, or when the attorney's representation of the defendant is impaired by loyalty owed to a prior client." United States v. Perez, 325 F.3d 115, 127 (2d Cir. 2003) (quoting United States v. Schwartz, 286 F.3d 76, 91 (2d Cir. 2002)). A "potential conflict" is one where "the interests of the defendant may place the attorney under inconsistent duties at some time in the future." United States v. Klitti, 156 F.3d 150, 153 n. 3 (2d Cir. 1998). Once a court is made aware of a potential conflict, it must determine whether the defendant can waive the right to a conflict-free attorney. The court "must investigate the facts and details of the attorney's interests to determine whether the attorney in fact suffers from an actual conflict, a potential conflict, or no conflict at all." United States v. Levy, 25 F.3d 146, 153 (2d Cir. 1994).
B. Potential Conflict
The government's motion to disqualify Mr. Rubinstein and Mr. Corozzo is based both attorneys' alleged prior representation of Mr. Ruggiano, and Mr. Corozzo's close relationship to Mr. Ruggiano more generally.
1. Prior Representation of Mr. Ruggiano by Mr. Rubinstein
The Court accepts that, as the government states, Mr. Rubinstein represented Ruggiano (1) at a trial in 1978; (2) in connection with a gambling case in the late 1980s; (3) on a jury subpoena in 1990; and (4) several times during Mr. Ruggiano's "teenage years." (See Letter in Support of Government's Motion to Disqualify Ronald Rubinstein, Esq. and Joseph Corozzo, Esq., dated May 18, 2007 ("Gov't Let.") at 2.)
Initially the Government claimed that the last time Mr. Rubinstein had represented Mr. Ruggiano was 1992, and Mr. Rubinstein claimed he had not represented Mr. Ruggiano in over thirty years. However, at the hearing on May 23, 2007, both parties agreed that the most recent representation was 1990. (See Transcript, dated May 23, 2007 ("5/23 Tr.") at 10-11.)
Defense counsel maintain that Mr. Rubinstein's last representation of Mr. Ruggiano was in 1990 and involved an unrelated matter; they claim that it is of no consequence and will not hinder Mr. Rubinstein's representation of Mr. Perrone in the current case. (Defendant's Letter, dated May 22, 2007 ("Def.'s Let.") at 4.)
2. Prior Representation of Mr. Ruggiano by Mr. Corozzo
Mr. Corozzo's alleged duty to Mr. Ruggiano stems from allegations of more recent interactions with Mr. Ruggiano supported by Mr. Ruggiano's testimony at a disqualification hearing in front of Judge Weinstein, in United States v. Pizzonia, 05 Cr. 425 (JBW) (E.D.N.Y.), a copy of which was attached to the government's letter of May 18, 2007. Mr. Corozzo represented the defendant, and Mr. Ruggiano was a cooperating witness. Mr. Ruggiano testified at a hearing, before he appeared as a government witness, that he believed Mr. Corozzo had been his attorney on two cases in the 1990s.
First, in 1995, Mr. Ruggiano was indicted on a bookmaking scheme. He testified that Mr. Corozzo appeared for him at the arraignment and negotiated his bail. (See Transcript of Hearing in United States v. Pizzonia, 05 Cr. 425 (JBW) (E.D.N.Y) ("Pizzonia Tr.") at 2601.) Mr. Ruggiano testified that, while out on bail, he went to a meeting with the other defendants "[i]n Joseph's office on Madison Avenue." (Id. at 2602.) Mr. Corozzo was the only lawyer present at the meeting. (Id.) Mr. Corozzo told Mr. Ruggiano and the other defendants that "he couldn't defend all of us so technically we had, you know, other attorneys came in." He testified that he "got [Jeffry] Hoffman," whose offices were in the "same place" as Mr. Corozzo's offices. (Id. at 2603-04.) Mr. Ruggiano testified that he attended at least "three or four" meetings with his co-defendants where Mr. Corozzo was the only attorney present. (Id. at 2604-05.) He directed his questions about the case to Mr. Corozzo "[b]ecause he was in charge of the case as far as I was concerned." (Id. at 2607.) Mr. Corozzo answered Mr. Ruggiano's questions about the case and never directed his questions to Hoffman or Pollok. (Id.) Ruggiano testified that it was Mr. Corozzo who told him when the state made a plea offer: "[Mr. Corozzo] told me that they offered me three to six but if Mikey Gal took a year and five years probation, they would knock it down to two to four." (Id. at 2608.)
Second, in 1997, while serving his sentence on the 1995 case, Mr. Ruggiano was charged by the federal government with "RICO for extortion," (id. at 2609), in the Southern District of Florida. (Id.) First, he contacted attorney, Linda Sheffield, Esq., who told him "she could have got me eight years." (Id. at 2609.) Ruggiano refused the deal because Corozzo, who represented his own uncle Nicky Corozzo, a fellow member of the Gambino crime family, told him that "[Mr. Corozzo's] uncle and they didn't want me to take the plea, they said nobody was taking pleas and that was it so I didn't take it. I was told not to take it, that they weren't going to negotiate any pleas." (Id.) He testified that he retained Paul McKenna as his attorney. (Id. at 2611.)
Ruggiano also claimed that there were co-defendant meetings at the prison where all the co-defendants were housed. Corozzo was present at these meetings along with other attorneys. Ruggiano believed that what went on at these meetings was confidential and private. Everyone, except two defendants who cooperated, ended up taking a universal plea. (Id. at 2612.) Before the sentencing hearing there was a co-defendants meeting, which was attended by Corozzo (Id. at 2612.) At this meeting, the lawyers and defendants discussed the fact that "we were going to take pleas and we were all going to try to get the drug program recommended at our sentencing." (Id. at 2613.) Ruggiano had not taken any drugs since "January 12, 1989." Mr. Corozzo allegedly knew this "[b]ecause he knew me, you know, we had a relationship. He knew me intimately." (Id. at 2614.)
Furthermore, Mr. Ruggiano testified that, in 2005, he got in touch with Mr. Corozzo to discuss representation before he was indicted in the case before Judge Weinstein. Mr. Corozzo said "he couldn't represent me because he already was representing Dominick [Pizzonia] so I told him I would retain Anthony Lombardino in the beginning and he said that's fine, you know, if we go to trial, you know I rather you use somebody else. . . . And I said, fine, you know, I have no money. He said, we'll cross that bridge when we come to it, something to that effect." (Id. at 2628.) When Mr. Ruggiano was arrested, Mr. Corozzo came with Lombardino to see him at MDC. (Id. at 2629.)
The government cites several other instances in which Mr. Ruggiano contacted Mr. Corozzo, including testimony that Mr. Corozzo was a go-between for Mr. Ruggiano and Mr. Corozzo's father, Joseph Corozzo, an alleged consigliere in the Gambino Crime Family and his uncle Nicholas Corozzo, an alleged captain in the Gambino Crime Family. These instances bolster the government's position that Mr. Corozzo would be conflicted in his cross-examination of Mr. Ruggiano.
See Gov't Let. at 4 ("On several occasions, Ruggiano contacted Mr. Corozzo to advise him that Ruggiano had been approached by law enforcement, and to seek legal advice. Ruggiano contacted Mr. Corozzo so that Mr. Corozzo would report this to his father, Gambino consiglieri[,] Joseph Corozzo, and his uncle, Gambino captain[,] Nicholas Corozzo, and put it `on record' that Ruggiano was approached.").
Defense counsel claim that Mr. Ruggiano has never retained Mr. Corozzo and that Mr. Corozzo has never taken part in a joint-defense in which Mr. Ruggiano was involved. (Def. Let. at 3.) In connection with the 1995 bookmaking case in Queens, defense counsel asserts that at all times Mr. Ruggiano was represented by the law firm of Hoffman and Pollok LLP. (Id.) Defense counsel further claims that, in connection with the 1997 RICO case in Florida, Mr. Ruggiano was represented by Mr. McKenna and that "Mr. McKenna's representation was not pursuant to a joint defense agreement, nor did it involve Mr. Corozzo Esq." (Id.)
Defense counsel submits a letter from Mr. McKenna addressed to Mr. Corozzo, in which Mr. McKenna states "I am writing this letter to confirm that I do not recall any meeting with you wherein we discussed some type of fraud on the court by requesting that Anthony Ruggiano be admitted to the Bureau of Prisons Drug Program." (Def. Let. Ex D (Letter from Paul A. McKenna, Esq., dated May 15, 2007.)
3. The Potential Conflict
An attorney-client relationship arises when:
(1) a person manifests to a lawyer the person's intent that the lawyer provide legal services for the person; and either
a) the lawyer manifests to the person consent to do so; or
b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relied on the lawyer to provide the services. . . .See United States v. Pizzonia, 415 F.Supp.2d 168, 179 (E.D.N.Y. 2006) (quoting Restatement § 14). A conflict exists if a prior representation was of co-defendants with a joint trial strategy. See U.S. v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989) ("The joint defense privilege, more properly identified as the `common interest rule' . . . serves to protect the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel.") (internal citations omitted)).
This was an earlier disqualification motion before the trial at which Mr. Ruggiano testified in front of Judge Weinstein. The government moved pretrial to disqualify Mr. Corozzo based on an alleged relationship with another government witness. Judge Weinstein found that there was no basis for disqualification and denied the motion. See Pizziano, 415 F.Supp.2d at 186.
It is clear that a potential conflict exists in this case. Though Mr. Rubinstein has not represented Mr. Ruggiano since 1990, there is no dispute that he was, at some point, privy to confidential information and retains a duty to Mr. Ruggiano regarding confidences shared during his former representation. Mr. Corozzo's relationship with Mr. Ruggiano is not as clear cut, and therefore more troubling. Though Mr. Corozzo claims that he was never privy to confidential information from Mr. Ruggiano, it appears from Mr. Ruggiano's testimony that the basis for a confidential relationship existed.
Though Mr. Corozzo claims that he was not Mr. Ruggiano's lawyer and that he was not party to any joint-defense agreement with Mr. Ruggiano, it is clear, from Mr. Ruggiano's testimony, that he had conversations with Mr. Corozzo regarding both cases where he believed Mr. Corozzo was providing him legal advice. Although Mr. Corozzo did not file an appearance for Mr. Ruggiano, Mr. Corozzo did no refrain from taking actions benefiting Mr. Ruggiano. One could conclude that Mr. Ruggiano saw Mr. Corozzo as his attorney in a general sense and confided in him at various points over the last two decades, believing he was doing so in confidence.
Furthermore, any confidential information that Mr. Ruggiano shared with Mr. Corozzo is imputed to Mr. Rubinstein due to their partnership. See United States v. Stein, 410 F.Supp.2d 316, 325 (S.D.N.Y. 2006) ("The Second Circuit has made clear that `[a]n attorney's conflicts are ordinarily imputed to his firm based on the presumption that "associated" attorneys share client confidences.'" (quoting Hempstead Video, Inc. v. Incorporated Village of Valley Stream, 409 F.3d 127, 133 (2d Cir. 2005))).
C. The Validity of Defendant's Waiver of the Conflict
Having found that a potential conflict exists for both Mr. Rubinstein and Mr. Corozzo, the Court must decide whether or not the conflict presented here is subject to a waiver by the defendant. To ensure that a defendant who wishes to waive a conflict makes an informed decision, the Second Circuit has instructed courts to follow the procedure it laid out in United States v. Curcio, 680 F.2d 881 (2d Cir. 1982). See United States v. Iorrizo, 786 F.2d 52, 59 (2d Cir. 1986) ("In Curcio we directed that the trial court should: (i) advise the defendant of the dangers arising from the particular conflict; (ii) determine through questions that are likely to be answered in narrative form whether the defendant understands those risks and freely chooses to run them; and (iii) give the defendant time to digest and contemplate the risks after encouraging him or her to seek advice from independent counsel." (citing Curcio, 680 F.2d at 888-90)).
1. Curico Hearing
Based on the allegations made by the government, the Court held a hearing to determine whether Mr. Perrone could make an effective waiver of the alleged conflict. (See Transcript, dated May 23, 2007 (5/23 Tr.).) At the hearing the government informed the court and defense counsel that the purpose of calling Mr. Ruggiano as a witness was to establish Mr. Perrone's place in the Genovese Crime Family. (See id. at 20 ("He is . . . the witness who is going to say that Mr. Perrone was a member of the Genovese crime family. . . . And that he was a captain. . . . . [Even though] [h]e is [a member of the Gambino Crime Family] . . . as a member of the mafia, La Cosa Nostra, people know who's members of what.").)
The fact that this testimony is peripheral to engaging in a pattern of gambling and loan sharking operations — the charges alleged in the indictment — supports the Court's denial of the government's motion. (See § C(2) infra.)
The Court then moved on to the Curcio inquiry. The Court explained the nature of the conflict to Mr. Perrone and told him that if it allowed him to keep his counsel, the Court would probably limit their cross-examination of Mr. Ruggiano to matters of public record and 3500 material. Mr. Perrone stated that he wished to keep his lawyers. The Court then instructed Mr. Perrone to take some time to consult with independent counsel to ensure that he understood the rights he was giving up. After this consultation, independent counsel addressed the Court and stated:
CJA attorney Steven Frankel, Esq. was present for the hearing at the Court's request.
I spoke at some length with Mr. Perrone, having read all of the documents that were provided to me, as well as listening to the colloquy from all counsel and your Honor. I believe that I certainly was in a position to explain to him what the potential conflicts could be in the event that he keeps counsel who presently he has retained for trial. . . .
I explained to Mr. Perrone that there is the possibility that areas of cross-examination and areas where his competent attorneys . . . might be precluded by the Court because of the prior representation of the two attorneys, of this gentleman. . . . And that that could affect the outcome of the trial and the potential effectiveness they might have during the course of the cross-examination.
Mr. Perrone . . . seems very bright, very alert. He asked me several questions. I asked him several questions to ensure that he understood the potential conflict and what he would be giving up by waiving this conflict of interest.
He was very clear to me that he . . . [is] willing to waive any conflict of interest.
That is the conversation we had. I believe it is knowledgeable, it is knowing and it is careful. And I saw nothing he indicated that he did not understand, that he is making this decision with potential consequences down the line. And he is fully aware of those consequences.
(Id. at 39.) Again, the Court addressed Mr. Perrone, and again he said that he wanted to waive his lawyers' conflict of interest. (See id at 40-42.)
Though the Court is aware that Mr. Perrone has only an eighth grade education, (see id at 32), it is also cognizant of the fact that he is well aware of the charges facing him and the importance of a vigorous defense, given that this is his second trial on the same charges. The Court is satisfied that, between its own explanation of Mr. Perrone's lawyers' conflict and his consultation with Mr. Frankel, Mr. Perrone made an intelligent and knowing waiver at the Curcio hearing.
2. The Factors to be Weighed by the Court Tip in Favor of Allowing Mr. Perrone to Waive the Conflict.
There are some conflicts that are so severe, they cannot be waived, even if the Defendant makes a knowing and intelligent waiver before trial. However, these categories are "very narrow."Perez, 325 F.3d 115 at 126. The Second Circuit has "made plain" that:
Conflicts, such as an attorney's representation of two or more defendants or his prior representation of a trial witness, are generally waiveable. . . . Although such a conflict might require a defendant to abandon a particular defense or line of questioning, he can be advised as to what he must forgo; he "can then seek the legal advice of independent counsel and make an informed judgment that balances the alteration in the trial strategy against he perceived effect of having to get a new and perhaps less effective defense counsel."Id. at 127 (quoting United States v. Fulton, 5 F.3d 605, 608 (2d Cir. 1993)).
In Stein, 410 F.Supp.2d 316, Judge Kaplan dealt with a similar situation to the one facing this Court. A defendant wanted to waive a conflict with a firm that had previously represented two co-conspirators in a KPMG related case. Judge Kaplan summarized the factors that a court should consider when dealing with a conflict:
As [the] cases make clear, the Second Circuit has considered a number of different factors in determining whether a conflict can be waived including, among other things, (1) whether disqualifying the defendant's chosen counsel would create "real prejudice" to the defendant based on the length of the representation and/or counsel's familiarity with the case, (2) whether there is a possibility that the attorney could be called as a witness at the defendant's trial or implicated in the defendant's alleged crimes, (3) whether the continued representation would conflict with the attorney's own personal financial or liberty interests, as opposed to the interests of a current or former client, (4) whether, if the conflict concerns the interests of another client, the attorney's relationship with the other client is continuing or has been terminated, (5) whether any other current or former client affected by the conflict has initiated or joined in the motion to disqualify defendant's chosen counsel, and (6) the availability of measures that might limit the dangers posed by the conflict, such as restricting an attorney's cross-examination of a former client.Id. at 329.
In this case, as in that case, "the factors weigh in favor of allowing [the defendant] to waive the conflicts posed by [defense counsel's] former representation of [a government witness]." Id. First, and most importantly, the prejudice to Mr. Perrone should he have to retain new counsel in this matter is enormous. Mr. Rubinstein has already represented Mr. Perrone on these exact same charges, while Mr. Corozzo successfully represented Mr. Perrone's son-in-law at the last trial. The government asserts that, regardless of the prejudice to Mr. Perrone, should the Court find a potential conflict between Mr. Corozzo and Mr. Ruggiano, it must disqualify both attorneys. It cites several cases where district courts in this circuit have done so, see United States v. DiPietro, 2004 WL 613073 (S.D.N.Y. March 29, 2004); United States v. Yannotti, 358 F.Supp.2d 289 (S.D.N.Y. 2004); United States v. Gotti, 9 F.Supp.2d 330 (S.D.N.Y. 1998);United States v. Falzone, 766 F.Supp. 1265 (W.D.N.Y. 1991), and where the Second Circuit has upheld disqualifications in this context. See United States v. Jones, 381 F.3d 114 (2d Cir. 2004);United States v. Locascio, 6 F.3d 924 (2d Cir. 1993). In none of the cases cited by the government where a court has disqualified counsel however, has the defendant faced disqualification of his chosen counsel on a retrial. Second, the Court's concern that Mr. Corozzo would have to be called as a trial witness has been alleviated by defense counsels' acknowledgment that it is undisputed that Mr. Perrone made a loan to Mr. Ruggiano. (See 5/23 Tr. at 52 (MR. COROZZO: "It [is] conceded that the facts of Mr. Ruggiano going to Mr. Perrone and asking for money . . . Mr. Perrone meeting with him and giving him the money.").) Third, there is no allegation that either attorney's personal liberty or financial interests are at stake in this matter. Fourth, whatever attorney-client relationships Mr. Corozzo or Mr. Rubinstein had with Mr. Ruggiano in the past, they are no longer in effect.
The government agrees that this loan was at non-usurious rates and does not constitute loan sharking. However, if this loan had not been conceded, there was a possibility that Mr. Corozzo could be called to testify regarding on a conversation he allegedly had with Mr. Ruggiano about the loan. (See Gov't Let. at 13.)
The bigger issues in this case are in the context of the two final factors of Judge Kaplan's test. Mr. Ruggiano has not waived his right to the duty of confidentiality and loyalty from his former attorneys. The government states that barring a waiver from Mr. Ruggiano, defense counsel can neither cross-examine him about confidential information nor attack his credibility on summation. (Letter from AUSA Benjamin Gruenstein, dated May 23 2007 ("Gruenstein Let.") at 1.) The government contends that Mr. Corozzo's and Mr. Rubinstein's continuing "duty of loyalty" to Mr. Ruggiano prevents them from attacking his credibility even if the Court precludes cross-examination on matters that are the subject of privileged attorney-client communication. (Id.) However, the Court does not find that the ethical rules regarding the duty of loyalty require the rigid interpretation that the government insists upon.
In Wheat, the Supreme Court did make clear that "[f]ederal courts have 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." 486 U.S. at 160. The American Bar Association's Model Rule of Professional Conduct Rule 1.9(a) states:
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.Id. The commentary to that section states that an attorney should not "represent anyone with adverse interests in the same or a substantially related matter without the former client's consent." See Commentary to ABA Model Rules of Prof. Conduct R. 1.9. The New York Code of Professional Responsibility, Disciplinary Rule 5-108 similarly states that "a lawyer who has represented a client in a matter shall not, without the consent of the former client after full disclosure. . . . [t]hereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client." See id. R. 5-108(1).
However, there is no contention here that Mr. Ruggiano will be testifying on any "substantially related matter." He was never charged in the indictment against Mr. Perrone, and the government does not allege that he has participated in any of the crimes charged here, which relate to the Genovese family not the Gambino family to which Mr. Ruggiano belongs. In fact, the government has said that it plans to call Mr. Ruggiano only to establish that Mr. Perrone is a member of the Genovese Crime Family, not to testify to any of the substantive crimes alleged here. (See 5/29 Tr. at 20.) The only "substantial relation" between the subject matter at issue here and those at issue in cases where Mr. Ruggiano was represented by Mr. Corozzo or Mr. Rubinstein is that all of the crimes relate to La Cosa Nostra. However, this broad definition of substantial relationship is not convincing: "a client who is represented by an attorney on one matter may not inhibit that attorney's freedom in all future, unrelated matters." Pizzonia, 415 F.Supp.2d at 177 ("The majority of cases that have found a conflict of interest arising from prior representation of a witness involve substantially related representations, where the danger of divided loyalties or revealing client confidences is at a maximum." Id. at 178.).
The government cites United States v. Yannotti, 358 F.Supp.2d 289, a case where Judge Scheindlin disqualified Mr. Corozzo in part because of his former representation of a government witness, for the proposition that defense counsel cannot "cross-examine [Mr. Ruggiano] or attack his credibility." (Gruenstein Let. at 1.) In Yannotti, Judge Scheindlin stated that "because an attorney's duties of loyalty and confidentiality to his clients remain in force after the termination of the attorney's retainer, the attorney cannot . . . question the client's credibility." 358 F.Supp.2d at 295. However, the facts of that case make clear that the duty of loyalty was only one of a number of factors on which Judge Scheindlin made her decision, and that she was faced with a far different situation from the one this Court faces here. Furthermore, Judge Scheindlin was not faced with a situation where the disqualification of Mr. Corozzo would be imputed to another lawyer (Mr. Rubinstein) who had represented the defendant in a previous trial on the same charges.
In that case the government alleged that "Corozzo's loyalty to his father and uncle, both of whom are high-ranking members of the Gambino Family, is adverse to the best interests of his client Yannotti, . . . that Corozzo would be an unsworn witness to events that will be the subject of testimony during the trial, . . . that two government witnesses as well as Yannotti's co-defendant John A. Gotti are former clients of Corozzo . . . [that there was an] an additional potential personal conflict, [and] [f]inally, the government advance[d] what it sometimes characterize[d] as an additional ground for disqualification or, alternatively, as an overarching theme to its motion: Corozzo's loyalties are divided because his close ties to the Gambino Family make him, in effect, "house counsel" to that organization.Yannotti, 358 F.Supp.2d at 290.
Other cases make clear that the contention that a lawyer can never question a former client on any subject matter or question his credibility in argument proves too much. As the defense notes, there are several cases where counsel has been allowed to continue despite prior representation of a government witness.See United States v. Liszewski, 2006 WL 2376382 (E.D.N.Y. August 16, 2006) (allowing counsel to remain despite having represented five co-defendants and one cooperating witness on previous, unrelated charges); United States v. Paone, 782 F.2d 386, 392 (2d Cir. 1986) (holding that defendant was not denied ineffective assistance of counsel when it turned out that his lawyer had represented a government witness years earlier on unrelated charges); see also United States v. Cunningham, 672 F.Supp. 1064, 1072 (2d Cir. 1982) ("[T]he factual circumstances of the present case [do not] justify [disqualification], for all of the interests that the government asserts it wishes to protect, i.e., those of [the witness], of Cunningham, and of the public, may adequately be protected without disqualification of [counsel].");United States v. Armedo-Sarmiento, 524 F.2d 591, 593 (2d Cir. 1975) (reversing conviction where attorney was disqualified based on prior representation of prior witness without offering current client a right to waive the conflict.). In Armedo-Sarmiento, the Second Circuit stated: "[i]f the appellants do elect to proceed with [the conflicted attorneys] as their attorneys, it is to be understood that the witnesses will be entitled to full protection in preserving the confidentiality of their privileged communications with these attorneys, and they may refrain from answering any questions from [the conflicted attorneys] which are based on privileged communication." (Id. at 593). It is clear, then, that the Second Circuit has, in the past, sanctioned cross-examination of witnesses by, and argument from, attorneys who had previously represented those witnesses.
Def.'s Let. at 3.
Cunningham and Armedo-Sarmiento were both decided before the Supreme Court decided Wheat, however, Wheat did not say that an attorney must be disqualified, unless the Court finds an actual conflict.
It is equally clear that the cross-examination cannot go into any matters that might be the subject of attorney-client confidentiality without a waiver from the witness to be cross-examined: "[a]bsent a waiver from the former client, the attorney may not inquire into privileged matters; this restriction may impair his ability to cross-examine the witness fully." Pizzonia, 415 F.Supp.2d at 177 (citing United States v. Malpiedi, 62 F.3d 465, 469 (2d Cir. 1995)). The Court has no plans to allow defense counsel to question Mr. Ruggiano about matters that involve the lawyer-client privilege. In fact, it has proposed a proscription on cross-examination of Mr. Ruggiano to any material other than matters of public record and the 3500 material. And though the government asserts that, should he be convicted, Mr. Perrone will have a ripe ineffective assistance of counsel claim should the Court limit his attorneys' cross-examination of Mr. Ruggiano, (see Gruenstein Let. at 3 ("[Second Circuit] case law strongly suggests that the Court's proposed limitation on Mr. Rubinstein and Mr. Corozzo's ability to cross-examine Ruggiano . . . would not be proper")), they fail to note that he will also have a ripe claim for denial of chosen counsel should the Court disqualify his attorneys. The Supreme Court has recently ruled that when "the right at stake . . . is the right to counsel of choice," if an appellate court deems that "that right was violated because the deprivation of counsel was erroneous . . . [n]o additional showing of prejudice is required to make the violation `complete.'" United States v. Gonzalez-Lopez, 126 S.Ct. 2557, 2562 (2006).
In view of these competing threats of invalidation, the Court can make its determination based only on what it deems fairest to the defendant in this case. Based on Mr. Perrone's knowing waiver, his clear desire to maintain his current attorneys, and their familiarity with the subject matter of the trial, combined with the Court's conclusion that Mr. Ruggiano's testimony will not require cross-examination about any of the allegedly privileged matters, and the fact that this motion to disqualify was made only ten days before the start of this retrial, the Court denies the government's motion to disqualify Mr. Rubinstein and Mr. Corozzo.
CONCLUSION
The government's motion is denied. Mr. Rubinstein and Mr. Corozzo will confine their cross-examination of Mr. Ruggiano to matters of public record and the information contained in the government's 3500 material. If, during the cross-examination, they find the need to venture outside of this territory, they may make an application at sidebar so that the Court can consider whether their proposed area of questioning conflicts with their duty of confidentiality or loyalty to Mr. Ruggiano, or would cause counsel to become an unsworn witness.
The 3500 materials have not been provided to the Court. Therefore, this ruling is subject to the Court's examination of those materials.
Miranda procedures. Therefore, Defendant's motion is denied.
IT IS SO ORDERED.