JUDITH C. HERRERA, District Judge.
At the Motion hearing, the United States called Doe to the stand to give her account of events. Her testimony and the United States' other evidence shows the following.
Attorney Daniel M. Salazar is Defendant's retained counsel in Defendant's underlying charge for abusive sexual contact in Indian country under 18 U.S.C. § 2244(a)(1) and 18 U.S.C. § 1153. On July 17, 2018, about one week before this matter was set for trial, Salazar and Kneale visited Doe at the prison where she is currently detained for state criminal charges unrelated to this case. This visit was done without notice to the United States. According to Salazar, the United States never gave him Doe's statements, so he and Kneale visited Doe to take her recorded statement. They interviewed her for about an hour, recording 38 minutes of the conversation. According to Doe, Salazar and Kneale introduced themselves as Defendant's defense team. Mot. Hr'g Tr. 11:20-23. Salazar told her he needed her statement, but she told him she did not want to talk to him. Id. 12:6-12. She talked to them anyway, feeling she had no choice. Id. 15:13. But throughout the one hour conversation she repeated about five or six times that she did not want to talk to them. Id. 13:3.
According to Doe, Kneale asked Doe if the "feds" were making her testify. Id. 17:3. When Doe replied no, Kneale said "oh, they haven't threatened your kids yet?" Id. 17:3-9. Kneale told Doe to "not be surprised" if the federal government threatened her children, and told her "you know, you don't have to testify. It's up to you. You don't have to if you don't want to." Id. 20:18-22. Doe testified that these statements made her feel threatened. Id. 17:13. Salazar and Kneale told Doe she had to "honor" a subpoena from the United States, but that she did not have to testify. Def. Interview with Jane Doe, Doc. 88-1, p. 39:11 ("Def. Interview"). Salazar told Doe that there would be consequences for not complying with a subpoena, but said nothing more than "I'm not your lawyer." Id. 39:19-21. Kneale told Doe to "show up" but that she did not "have to say a word." Id. Both Kneale and Salazar told her they could not give her legal advice, but both told her that she did not have to testify.
At the Motion hearing, when asked whether Salazar asked her about her underlying state criminal charge, Doe answered no. Mot. Hr'g Tr. 18:20-21. However, Doe then explained that Salazar asked her why she was jailed and how much probation time she received on her state charge. Id. 18:22-25 - 19:1-2. He also explained to her that she could face a probation "tail" — which Doe understood to mean she could go to prison following probation. Id. 19:1-25. She felt that Salazar was "basically threatening me with jail time." Id. 20:9. Doe also told BIA Agent Fischer that Salazar "wanted to know more" about her state case, and that he brought up a state judge's name. Fischer Interview, 4:4-5, Doc. 88-2. Doe told him, "that's my judge, too," and Salazar replied, "oh, well she don't like me but I'm pretty sure I can work something out." Id. 5:1-6. Salazar told Doe about appearing before the same judge on behalf of a previous client. Mot. Hr'g Tr. 21:7-19. He told Doe how he "put up a fight" with the judge "to get [his] client to get free." Id. 21:17-19. Salazar explained at a bench conference that Kneale, not he, made these statements to Doe. Id. 23:1-2.
Additionally, Doe explained to BIA Agent Fischer that Salazar and Kneale suggested to her that that the United States Attorney had "done nothing to get [Doe] out of jail" considering the United States had "good pull." Fischer Interview, 4:13; 4:15-17, Doc. 88-2. Doe said that she had the impression that Salazar could help get her out of jail.
According to Doe, at some point Salazar switched off the recorder. Mot. Hr'g Tr. 26:10-11. In an unrecorded portion of the conversation, Doe contends that Kneale asked for Doe's mother's telephone number. Id. 27:17-18. Kneale proposed to give Doe's mother free legal advice, and then her mother would then pass the advice to Doe. Id. 19-25. Doe understood Kneale's statement to mean Kneale would help her get free legal advice. Id. 40:12. Doe testified that only at the end of the interview did Salazar ask whether Doe had an attorney. Id. 17:17-19.
On Salazar's cross-examination of Doe, he elicited from Doe that did not ask to represent her as her lawyer. Id. 37:14-19. She remembered Salazar telling her to comply with the subpoena and his statement that she should consult with a lawyer to understand consequences of failing to comply with a subpoena. Id. 38:9-12.
Kathleen Rhinehart, a criminal defense attorney currently representing Jane Doe in her state criminal charges, gave a proffer to the Court. Rhinehart stated that Salazar texted her two days after he visited Doe. Id. 48:4-5. Without identifying Doe in his text message, Salazar wrote Rhinehart, "do you remember about a year ago us talking about one of your former clients, now in DT, basically me trying to get in touch with her?" Id. 48:7-9. Rhinehart texted Salazar that she had no memory of such a conversation. Id. 48:11. Rhinehart said that she and Salazar later talked on the telephone, and that Salazar explained to her that he had visited Doe and that she did not want to talk to him. Id. 49:1-4. Rhinehart told the Court that Salazar did not have her permission to speak with Doe. Id. 51:15-17.
The United States contends that Salazar's and Kneale's
Second, the United States argues that Salazar violated a slew of ethical standards that speak to his overall ineffectiveness and inability to continue in this case. For instance, the United States asserts that Salazar and Kneale violated the ethical standards governing statements to third persons. Salazar, the United States argues, communicated with Doe about her state criminal charge knowing she was represented by Rhinehart and without Rhinehart's consent in violation of NMRA, Rule 16-402 (Communications with Persons Represented by Counsel). To the extent Salazar thought he was dealing with an unrepresented person, the United States argues that Salazar impermissibly failed to let Doe know that he was not looking out for her interests in violation of NMRA, Rule 16-403 (Communications with Unrepresented Persons). Finally, the United States asserts that Salazar and Kneale violated the following other ethical standards:
According to the United States, Mr. Salazar's alleged violation of these various ethical standards "has created a serious potential conflict or actual conflict because he knowingly put himself in the position where his own self-interest in avoiding potential allegations of improper contact with a represented party could compromise his representation to Defendant." Mot. at 3. The Government argues that without Salazar's removal from the case, Defendant will be deprived of his Sixth Amendment right to conflicts-free counsel. To date, Attorney Salazar has filed no written opposition brief to the United States' Motion.
The Court received sufficient record evidence to rule on whether Salazar is concurrently representing Doe and Defendant. As explained below, the Court finds that Doe and Salazar did not enter into an attorney-client relationship. The Court reserves ruling on the other ethical standards raised in the United States' motion.
"The Sixth Amendment to the United States Constitution entitles a defendant in a criminal case to the effective assistance of counsel." United States v. Gallegos, 108 F.3d 1272, 1280 (10th Cir. 1997) (citing Powell v. Alabama, 287 U.S. 45, (1932)). "The purpose [of this amendment] is to ensure that criminal defendants receive a fair trial." Id. (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)). "A defendant's right to the effective assistance of counsel includes a right to representation that is free from conflicts of interest." Id. (citations and quotations omitted). "This right to conflict-free representation extends to any situation in which a defendant's counsel owes conflicting duties to that defendant and some other third person." Id. (citations and quotations omitted).
"[A] court that learns of a possible conflict 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 genuine conflict at all." United States v. Rogers, 209 F.3d 139, 143 (2d Cir. 2000). An actual conflict of interest occurs where "defense counsel's performance was adversely affected by an actual conflict of interest if a specific and seemingly valid or genuine alternative strategy or tactic was available to defense counsel, but it was inherently in conflict with his duties to others or to his own personal interests." United States v. Bowie, 892 F.2d 1494, 1500 (10th Cir. 1990). A potential conflict of interest occurs where "the interests of the defendant may place the attorney under inconsistent duties at some time in the future." United States v. Perez, 325 F.3d 115, 125 (2d Cir. 2003). "To ensure that this right to conflict-free counsel is not abridged, a district court has two distinct obligations during criminal proceedings: (1) to initiate an inquiry whenever it is sufficiently apprised of even the possibility of a conflict of interest, and (2) to disqualify counsel or seek a waiver from the defendant whenever the inquiry reveals that there is an actual or potential conflict." United States v. Rogers, 209 F.3d 139, 143 (2d Cir. 2000).
Thus, "a court may avoid a conflict of interest problem by securing a waiver of a defendant's right to conflict-free representation." Gallegos, 108 F.3d at 1281. "It is well settled that a defendant may waive his right to conflict-free counsel." Id. "[T]he waiver of a constitutional right must not only be voluntary, but must be a knowing, intelligent act done with sufficient awareness of the relevant circumstances and likely consequences." Id. "[T]he trial judge should affirmatively participate in the waiver decision by eliciting a statement in narrative form from the defendant indicating that he fully understands the nature of the situation and has knowingly and intelligently made the decision to proceed with the challenged counsel. United States v. Winkle, 722 F.2d 605, 611 (10th Cir. 1983). However, even despite a waiver, "the [Sixth] Amendment does not ensure that a defendant will inexorably be represented by the lawyer whom he prefers." United States v. Evanson, 584 F.3d 904, 909 (10th Cir. 2009) (internal quotations omitted). The Tenth Circuit has explained that "trial courts must pursue 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." Id. "Even when a defendant seeks to proceed with conflicted counsel by waiving the conflict, a district court retains authority to reject the proffered waiver to preserve ethical standards and ensure a fair trial." Id. See Wheat v. United States, 486 U.S. 153, 160 (1988) (explaining that a criminal defendant's counsel of choice is limited by federal court's "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.").
As noted earlier, the United States, citing New Mexico precedent, argues that a lawyer "should not represent a client whose interests are adverse to those of a present client, or whose interests are adverse to those of a former client on a matter that is the same or substantially related to the previous matter." See Mot. at 12. The United States also invokes NMRA, Rule 16-107(A), which provides that
NMRA, Rule 16-107(A).
Of course, "[t]he threshold question for the court is whether there was an attorney-client relationship" between Salazar and Doe "that would subject" Salazar to certain ethical obligations. Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1384 (10th Cir. 1994). The parties have not cited relevant New Mexico authority explaining when the attorney-client relationship comes into existence. But generally speaking, "[t]here is no single, well-defined test used to determine whether an attorney-client relationship exists." Parkins v. St. John, No. 01 CIV. 11660 (RCC), 2004 WL 1620897, at *4 (S.D.N.Y. July 19, 2004) (considering whether client paid fee; whether a written contract was executed; and whether purported client believed the attorney was representing him and whether that belief was reasonable). Tenth Circuit precedent holds that formation of an attorney-client relationship does not require execution of a formal contract or payment of fees. See United States v. Stiger, 413 F.3d 1185, 1196 (10th Cir. 2005) overruled on other grounds by United States v. Ellis, 868 F.3d 1155 (10th Cir. 2017). Instead, an "implied professional relation can exist in the context of the preliminary consultation by a prospective client with a view to retention of the lawyer even though actual employment does not result." Stiger, 413 F.3d at 1196.
With these principles in mind and based on the Court's review of the record, the Court concludes that the United States has not carried its burden of showing that Salazar and Doe entered into an attorney-client relationship. Doe and Salazar admit that Doe never retained Salazar and never paid him fees, which weighs against finding a professional relationship. Still, an implied attorney-client relationship can arise based on the circumstances even without fees paid or a contract signed. One circumstance to consider is whether the purported client believed the attorney represented her and whether that belief was reasonable. See Parkins, 2004 WL 1620897 at *4. Concerning Doe's belief that Salazar could help her with her state criminal charges, Doe told Agent Fischer she was left with the impression that Salazar "hinted" that he could get her out of jail, but she also later said that "he didn't say for me. He just said, `I could fight to get anybody out of jail.'" Fischer Interview, 17:16-19. This evidence is not powerful enough to show that Doe believed Salazar would provide her legal services — especially since this same conversation between Doe and Salazar at one point left her with the impression that Salazar was "basically threatening [her] with jail time." Mot. Hr'g. Tr. 20:9. No reasonable person could see her attorney as both liberator and jailor.
Kneale's statement to Doe about provisioning legal advice through Doe's mother requires a closer look. Doe was left with the definite impression that Kneale and Salazar would "get [her] free legal advice." Id. 40:12. This statement by Kneale (and attributable to Salazar) is egregious and outrageous, but it did not create an attorney-client relationship that Salazar would represent Doe. After all, what was Doe's response to much of this? When Kneale told Doe they "we're here to help" her, Doe responded, "why are you guys going to help me if you guys are helping him?," showing that Doe did not reasonably believe that Salazar represented her. Fischer Interview, 14:23-24. She did not indicate that she sought out or relied on any advice given by Salazar or Kneale; did not say that she considered Salazar to be her lawyer; and did not say she intended him act as her lawyer at that time or any time.
The Court holds that the evidence in the record does not support the existence of an attorney-client relationship between Doe and Salazar. Absent an attorney-client relationship, the lawyer's duties regarding concurrent representation in NMRA, Rule 16-107(A) do not apply. The Court limits this ruling solely to the issue of whether an attorney-client relationship existed between Doe and Salazar. The Court does not adjudicate the remainder of the ethical issues raised by the United States' motion.
