KIM R. GIBSON, District Judge.
This matter comes before the Court on the Government's Motion to Disqualify Counsel (Doc. No. 82). The Government filed the motion upon discovering that one of its witnesses is a former client of defense counsel Jerome J. Kaharick. The Government does not identify the witness by name in its motion but describes the scope of the witness' previous representation by Mr. Kaharick and the nature of the anticipated cross-examination by defense counsel. Mr. Kaharick has filed a response to the Government's motion expressing his inability to comment on the conflict without learning the identity of the former client in question.
Mr. Puryear was indicted on five counts of drug-related offenses on September 15, 2009. (Gov. Mot. ¶ 1.) He retained Mr. Kaharick to represent him. (Gov. Mot. ¶ 2.) One of the witnesses the Government intends to call has a prior conviction in the Cambria County Court of Common Pleas for unlawful firearms possession and unlawful flight to avoid apprehension. (Gov. Mot. ¶ 5.) The witness was represented in that criminal prosecution by Mr. Kaharick.
At the outset, the Court notes the significant implications the Government's motion has for the Defendant. The very fact that Mr. Kaharick is the Defendant's privately retained counsel renders this Court's obligation to resolve this motion, as the Third Circuit aptly puts it, "unenviable." United States v. Moscony, 927 F.2d 742, 749 (3d Cir.1991). The right to counsel of choice is a right "derived from the [Sixth Amendment] right to effective assistance of counsel, for `the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.'" Id. at 748 (quoting Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932)). The Third Circuit points out that "a primary purpose of the Sixth Amendment is to grant a criminal defendant control over the conduct of his defense-as `it is he who suffers the consequences if the defense fails.'" Moscony, 927 F.2d at 748 (quoting Faretta v. California, 422 U.S. 806, 820, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). The protections of the Sixth Amendment thus include "a presumptive right to the counsel of one's choice." Moscony, 927 F.2d at 748. The Third Circuit "has clearly stated the importance of a defendant's securing the counsel of his choice." Fuller v. Diesslin, 868 F.2d 604, 610 (3d Cir.1989). The defendant's choice of counsel is "the most important decision a defendant makes in shaping his defense.... Attorneys are not fungible, as are eggs, apples, and oranges. Attorneys may differ as to their trial strategy, their oratory style, or the importance they give to particular legal issues.... [A] defendant's decision to select a particular attorney becomes critical to the type of defense he will make and thus falls within the ambit of the sixth amendment." Id. at 610 (quoting United States v. Laura, 607 F.2d 52, 56 (3d Cir.1979)).
Of course, the right to counsel of choice is not without limitations. The Government highlights some of the Supreme Court's language on this point, stating in its motion that "the `essential aim' of the Sixth Amendment is `to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer who [sic] he prefers.'" (Gov. Mot. 3 (quoting Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988)).) This language was also cited by the court in United States v. Cooley, 243 F.Supp.2d 329, 331 (W.D.Pa.2003), another case in which a court granted a motion to disqualify and on which the Government relies heavily here. The Third Circuit has commented on this very passage from Wheat that the Government cites:
Fuller, 868 F.2d 604 (quoting Wheat, 486 U.S. at 159, 108 S.Ct. 1692). This Court likewise does not construe the language in Wheat to diminish the importance of the right to counsel of choice. There is still room within the Sixth Amendment for the presumptive right to counsel of choice.
"Conflicts of interest arise whenever an attorney's loyalties are divided...." Moscony, 927 F.2d at 750. A division of loyalty threatens to inject itself into this case during Mr. Kaharick's cross-examination of the Government's witness. The Government hones in on the Rule 609 impeachment it expects during the cross-examination and Mr. Kaharick's ethical obligations (Gov. Mot. ¶ 7), but this to the Court appears to be the most innocuous part of the anticipated cross-examination since Mr. Kaharick would at least be confined to matters of public record (i.e. the conviction itself). Certainly the very idea of an attorney impeaching a former client with a conviction that came out of the former representation is extremely unpalatable and militates strongly in favor of disqualification. The Court simply notes that the impeachment itself need not necessarily violate an ethical rule. Far more noxious to trial proceedings than the impeachment by prior conviction (a small, though damaging, slice of the entire line of questioning) is the very cross-examination itself, wherein the former attorney would be pitted against the former client. With or without impeachment by prior conviction, "an attorney who cross-examines former clients inherently encounters divided loyalties." Moscony, 927 F.2d at 750. That is the critical conflict of interest that overcomes the Defendant's presumptive right to counsel of choice.
It is unknown whether the Defendant would be willing to waive conflict-free representation. Indeed, it is not clear how the Defendant could even decide that question since he does not know the name of the Government's witness. In the event of a proffered waiver, though, the Court would have to resolve the clash of the defense counsel's rights and duties that arises "when a defendant seeks to waive his right to conflict-free representation in circumstances in which the counsel of his choice may have divided loyalties due to... prior representation of another client who is ... a government witness." Moscony, 927 F.2d at 749. Waiver is contemplated by the Pennsylvania Rules of Professional Conduct
It is not only the magnitude of the conflict that requires a ruling in the Government's favor. The Third Circuit in Moscony explained that because other issues are at play besides the attorney's conflicting rights and duties, a waiver of conflict-free representation will likely not resolve the matter anyway:
927 F.2d at 749. No waiver in this case could alleviate the Court's concerns for the Defendant's effective assistance of counsel, regardless of Mr. Kaharick's skill as an attorney. The fact that the Pennsylvania Rules of Professional Conduct allow for waiver in certain circumstances by no means compels the Court to entertain it. Placing an attorney in the position of impeaching his former client with a conviction
Because the Court would not accept any purported waiver by the Defendant or the Government witness, disclosure of the name of the Government witness/former client or the anticipated testimony would serve no purpose in adjudicating the Government's motion. Defense counsel asks in his responsive brief, "Does the Government really intend to argue to this Court that in a list of Government witnesses, which must be significant, this one witness is critical and the cross-examination which this counsel would conduct would jeopardize the case for the Government?" (Def.'s Resp. ¶ 7.) Unfortunately for Mr. Kaharick, examination of the caselaw on this issue reveals that the importance of a Government's witness to its case is not an explicit factor in the disqualification of retained counsel. Although in Moscony one of the Government's witnesses was described as "central to the government's case," 927 F.2d at 747-48, and "a key government witness," 927 F.2d at 750, the indispensability of the witness seems to relate only to the anticipated vigor of cross-examination necessary. The more important the witness, the greater the need for incisive cross-examination, and the greater the risk to the defendant's right to effective assistance of counsel should that cross-examination be laden with conflict.
The Court's disposition of the Government's motion, albeit legally sound, deals an unexpected blow to the Defendant. While the defense attorney in Moscony was warned repeatedly by the Government during the grand jury investigation phase of the case that his representation would ultimately pose an irreconcilable conflict, Mr. Kaharick and his client have been blind-sided shortly before trial
(a) 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.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client
unless the former client gives informed consent.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: