WILLIAM S. DUFFEY, JR., District Judge.
This matter is before the Court on Defendant Bennett L. Kight's ("Defendant" or "Kight") Motion to Reconsider the Court's October 16, 2017 Order [91] ("Motion to Reconsider").
On December 19, 2016, the Government moved to disqualify Barry J. Armstrong and his law firm, Dentons USA LLP (the "Firm" or "Defense Counsel") from representing Kight in this criminal action. The Government argued disqualification was warranted on the grounds that Armstrong previously represented Kight and William C. Lankford ("Lankford"), a cooperating witness here, in a state court civil action (the "Civil Action") that was substantially related to the charges brought against Kight in this case. (Motion to Disqualify Defense Counsel [45] ("Motion to Disqualify")). On February 14, 2017, Defendant filed an Unopposed Request for Oral Argument on the Government's Motion to Disqualify Defense Counsel [55] ("Unopposed Motion for Oral Argument").
On October 16, 2017, the Court granted the Motion to Disqualify and denied the Unopposed Motion for Oral Argument [87] (the "October 16th Order"). As to the Motion to Disqualify, the Court held that "the subject matter of Armstrong's representation of Lankford in the Civil Action [was] substantially related to the subject matter of his representation of Kight," and therefore "an actual conflict of interest" existed as to Armstrong's representation of Kight in this case. ([87] at 32-33). The Court then rejected Kight's waiver of the actual conflict because of Lankford's continued refusal to waive the attorney-client privilege.
On October 27, 2017, Defendant filed his Motion to Reconsider. In it, he raises three grounds for reconsideration, including: (1) the Court was required to hold a hearing prior to disqualifying Defense Counsel; (2) the evidence in the record makes clear that Lankford and Kight's interests are not materially adverse; and (3) given the significant prejudice that will inure to Defendant if Defense Counsel is disqualified, and the "speculative nature" of the potential adversity, the Court should have instead appointed separate counsel to cross-examine Lankford.
Motions for reconsideration, assuming they are even appropriate in criminal cases, "`should be reserved for certain limited situations, namely the discovery of new evidence, an intervening development or change in the law, or the need to correct clear error or prevent a manifest injustice.'"
Defendant's Motion for Reconsideration reargues issues previously raised and decided by this Court, and fails to present any issues involving the misapplication of or failure to apply relevant statutes, case law, or rules of procedure. For the reasons discussed below, the Court denies Defendant's Motion for Reconsideration.
Defendant first argues that the Court was required to afford Defendant a hearing prior to disqualifying it. ([91] at 6-9). Defendant makes this argument based on three grounds: (1) the Government needed to confirm, on the record, its intention to call Lankford as a witness at trial; (2) the Court needed to consider Defendant's competency, or lack thereof; and (3) the Court needed to secure, on the record, Defendant's waiver of any conflict. (
The Government argues, as to the first ground, that Defendant's argument is "not a specification of error by the Court, [but rather] Defendant's repackaging of the argument that Lankford is really a defense witness." ([92] at 2). The Government confirms its intention to call Lankford as a witness in its case-in-chief, and notes that "Defendant cites no relevant statutes, case law[,] or rules of procedure that the Court misapplied or failed to apply in disqualifying counsel based on the Government's representation regarding this matter in writing . . . as opposed to at a hearing in open court." (
The Court is not aware of any legal precedent or other relevant rule dictating a party's entitlement to a hearing for the purpose of having another party, in this case the Government, confirm on the record its intention to call a particular witness that may present an actual conflict resulting in counsel disqualification. The Court believes it was sufficient that the Government previously made this representation to the Court in writing, as required by the Court. ([48] at 19, n.5). The Court was entitled to rely on this representation of an Officer of the Court.
The Government contends next that, as to Defendant's claim that it should have been afforded a hearing to determine Defendant's competency, "Defendant previously moved for a hearing to address the purported intersection between his incompetency claims and the Government's disqualification motion." The Court denied this motion. ([92] at 2-3;
The Court agrees. It does not appear that Defendant argues that a hearing on the merits of disqualification was required. Instead, it appears Defendant wants to reargue whether Defendant's competency is related to Defense Counsel's disqualification. The Court, however, is unaware of any legal authority requiring a hearing to determine a party's competency prior to disqualifying that party's counsel. The analyses are separate. The decision to disqualify counsel is not contingent on a party's competency. It simply cannot be that a party's competency dictates whether counsel can or cannot be disqualified, including because a party's competency is unrelated to whether an actual conflict exists. To the extent that Defense Counsel now argues that Kight was not competent to waive an existing actual conflict, this argument is not relevant because the disqualification reached by the Court was based on the determination that the charges in this prosecution are substantially related to matters for which counsel here represented a cooperating witness intended to be called at trial by the Government. That is, Defense Counsel here has an actual conflict with a witness who refuses to waive it. Finally, as the Government points out, the issue of Kight's competency has been the subject of extensive briefing and submissions. The Court was aware of this competency issue at the time it considered disqualification. Indeed, it retained a competency expert and determined it would address the competency issue separately.
As to Defendant's contention that it was entitled to a hearing in order to confirm on the record in open court Defendant's waiver of the actual conflict, the Government argues that the Court "considered Defendant's proffer [to] waive the conflict and correctly decided to reject that waiver because Defendant's waiver [did] not sufficiently address the issues created by counsel's prior representation of Lankford." ([92] at 4).
Defendant relies on
Defendant next challenges the Court's finding made pursuant to Rule 1.9(a) of the Georgia Rules of Professional Conduct:
([87] at 32, n.18). Defendant argues that in a successive representation case, like this one, it is much more difficult to establish material adversity. ([91] at 11-12). Defendant also maintains that, "as a factual matter, Defendant has demonstrated that his and Lankford's interests are aligned," and Lankford's expected testimony would not be "harmful or inconsistent with Defendant's case." (
The Government points out that Defendant does not challenge the Court's finding that an actual conflict existed, or that the Court misapplied the law underlying that determination, but instead focuses on a footnote providing an additional ground for disqualification. ([92] at 5-6). The Government further contends that the Court "did not find that the inference was the only permissible one to be drawn from Defendant's conduct," rather it "correctly found that the ability to draw th[e] inference from Lankford's anticipated testimony makes Defendant and Lankford materially adverse in this case." (
First, Defendant does not provide any argument in his Motion to Reconsider challenging this Court's key ruling that an actual conflict existed.
Finally, Defendant argues that "[e]ngaging separate counsel for Lankford's cross-examination would alleviate the concerns raised by all parties, particularly in this case, where the basis for disqualification is unreliable." ([91] at 15). The Government argues, in response, that "Defendant fails to address how [appointing separate counsel] would be workable given the full scope of the conflict presented here and Lankford's central role in the underlying facts." ([92] at 9).
The Court considered, at the time it rendered its decision disqualifying counsel, whether it would be possible to have separate counsel cross-examine Lankford, and, in its discretion, chose not to permit it. There is no clear error or "manifest injustice" here. In
Other courts in this Circuit have held similarly. For example, in
The Court finds no error in its application of the law, nor does it find any new facts justifying why it should change its prior, considered decision not to permit independent counsel cross-examine Lankford.
Having declined to reconsider its October 16th Order disqualifying Kight's Defense Counsel from representing Defendant in the trial of this matter, the Court addresses how to implement its Order. As the Court has noted, a competency hearing will be conducted in this case. That hearing may now be scheduled. Because the competency hearing will not involve Mr. Lankford's testimony, Kight may be represented by Defense Counsel at the competency hearing. The parties are hereby directed to file, on or before December 15, 2017, a list of the witnesses they intend to call at the hearing. Each witness's testimony will be described in detail and an estimate of their direct examination provided. The Court does not need any other submission by the parties before the hearing. The hearing is scheduled to be conducted on January 18, 2018 at 9:30 a.m., Courtroom 1705, Richard B. Russell Building, 75 Ted Turner Drive, S.W., Atlanta, Georgia. Witnesses shall be sequestered at the hearing.
For the foregoing reasons,
Where courts in this District, including this Court, have contemplated motions for reconsideration in criminal cases, they have generally employed those standards underlying civil motions for reconsideration.
