BY THE COURT:
Paradyne Corporation and eight individual co-defendants in a pending criminal case seek a writ of mandamus ordering the district court to refrain from various actions proposed in response to government motions to disqualify defense counsel. Primarily, petitioners challenge the district court judge's announced plans to interview, in camera and outside the presence of counsel, individual defendants, witnesses, and attorneys in order to determine whether defense counsel received information protected by the attorney-client privilege of various individuals. Petitioners also request a transcript of an ex parte presentation made to the court by the government in support of its motion to disqualify. In a companion case, co-defendant William Siegrist seeks identical relief, and asks additionally that the district court be ordered to conduct a hearing pursuant to United States v. Garcia, 517 F.2d 272 (5th Cir.1975), so that Siegrist may waive his right to conflict-free counsel. Because the procedures proposed by the district court to determine the existence and scope of alleged conflicts of interest would constitute serious and unwarranted incursions on constitutional rights of defendants, a writ of mandamus must issue.
The controversy arises out of the December 1985 indictment of Paradyne and the individual defendants on charges related to a $100 million government contract awarded to Paradyne in 1981. Under the terms of the contract, Paradyne was to replace and upgrade a computer communications system between the field offices and the main office of the Social Security Administration. The indictment contains various charges related to an alleged conspiracy to defraud the government by falsely representing that Paradyne then had available a computer system meeting the requirements specified by the Social Security Administration.
The petition for mandamus was prompted by a motion filed by the government on April 1 for disqualification of defense attorneys due to alleged conflicts of interest arising from the various combinations of law firms that represented Paradyne and its employees in different aspects of the civil and criminal litigations. During the grand jury stage of the criminal investigation, Paradyne and those employees classified by the government as "targets" of the investigation were represented by the two firms that also represented Paradyne and certain employees in the SEC civil suit and
In its challenge to counsel for Siegrist, the government asserts the additional claim that Siegrist's attorney previously represented potential government witnesses, and hence faces an actual conflict of interest as to these individuals. Although initially classified as a "target" of the investigation, Siegrist was downgraded to "witness" status in August 1985. He at that time became represented by his current counsel, who had been retained to represent the 24 Paradyne employees classified as "witnesses."
In urging that defense counsel be disqualified for possible conflicts of interest, the government has presented no direct evidence that any individual's attorney-client privilege has been breached. Rather, the government contends that a distinct likelihood for violations of the privilege arises out of the relationships between Paradyne and the firms that have served as counsel.
The government presented these accusations in its April 1 motion and in an ex parte presentation to court on May 15. On June 23, the court proposed to conduct a series of hearings to determine: (1) what attorney-client relationships existed between Paradyne's civil counsel and various individuals involved in the case; (2) which individuals have waived their attorney-client privileges with these firms; (3) whether privileged information has been disseminated to defense counsel by Paradyne's civil counsel; (4) the extent to which Siegrist's counsel suffers a conflict of interest in his representation of Siegrist; and (5) whether Siegrist can effectively waive his right to conflict-free representation. The court announced that on successive days it would conduct in camera interrogations of potential witnesses and government personnel involved in the case, of defense attorneys, and of defendants.
The court subsequently informed counsel that the questioning would be much like a grand jury hearing, outside of the presence of counsel or witnesses. Those questioned would be permitted only to go outside chambers to confer with their counsel before answering specific questions. Although the court proposed to formulate its questions based on suggestions by the counsel for each side, counsel would not be permitted to cross-examine witnesses or to present their own witnesses or other evidence.
The court rejected defense objections to the proposed procedure but stayed the proceedings while defendants sought a writ of mandamus from this court. In the petition for the writ, Paradyne and the individual co-defendants ask this court either (1) to order the district court not to hold the proposed hearings and to deny the motions to disqualify, or (2) to prohibit the court from conducting the hearings as currently contemplated. They also seek to obtain a transcript of the May 15 ex parte presentation. Siegrist, in addition, seeks an order requiring the district court to conduct a Garcia hearing so that he may waive his right to conflict free counsel.
In opposing the disqualification hearings, all defendants except Siegrist claim primarily that, even if the government's assertions that privileged materials have been disseminated are true, current defense counsel cannot face a conflict of interest in this case because none has ever represented either potential witnesses or other defendants. Moreover, they contend that the contemplated in camera, ex parte hearings pose serious threats to the fifth and sixth amendment rights of the defendants. Siegrist admits that his counsel faces a conflict arising out of prior representation of two potential witnesses, but he argues that the procedures outlined in Garcia, supra, are sufficient to permit him to effect a knowing voluntary waiver of his right to conflict-free counsel.
The sixth amendment's guarantee of assistance of counsel in criminal prosecutions includes both a right to effective representation free from conflicts of interest, e.g., Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708,
517 F.2d at 278.
Despite this clearly delineated and well established procedure to enable defendants to waive in open court their sixth amendment right to counsel free of conflict,
The principal basis of the government's motion for disqualification and of the district court's order is the notion that defense counsel possibly possess information that is subject to the attorney-client privilege of various witnesses and defendants. Assuming arguendo that the government's allegations are true,
At the heart of all previous cases involving disqualification due to conflicts of interest
Except for counsel for Siegrist, none of the current defense attorneys in this case faces such an ethical dilemma, for their loyalties lie solely with their current clients.
The government similarly is mistaken in arguing that in camera, ex parte hearings are necessary because the defendants' sixth amendment rights can be vindicated only if the defendants are fully aware of the actual impact of the conflicts confronting their attorneys. Secret hearings are essential, the government contends, if the court is both to uncover all the details of the alleged conflicts and to protect any privileged information. The fallacy of this argument becomes apparent in light of the sixth amendment's correlative right to retain counsel of one's choice despite the existence of a conflict of interest.
In arguing that secret hearings are necessary to protect both the defendants' sixth amendment right to conflict-free counsel and the confidentiality of privileged information, the government evades the inevitable dilemma that will confront the court once the details of any conflict are discovered: the court either would have to disclose privileged information or disqualify defense counsel on grounds that the defendants could not be made sufficiently aware of the specific dangers posed by their current representation. Thus, to maintain the secrecy that the government urges is so significant, the court would have to disqualify counsel despite the possible desire of the defendants to retain them regardless of any impairments.
Such a result, however, would be at odds with the very purpose of a constitutional provision designed to insure that individuals confronted by the prosecutorial machinery of the government are "able to invoke the procedural and substantive safeguards that distinguish our system of justice." Cuyler v. Sullivan, supra, 446 U.S. at 343, 100 S.Ct. at 1715; see, e.g., Gideon v.
Fortunately, the sixth amendment right to representation unimpaired by conflict of interest does not require the perverse result that the government's theory would yield. For, contrary to the government's assertions, a defendant need not be aware of every detail of a conflict of interest to be able effectively to waive the right.
Garcia requires that a court conduct a "`penetrating and comprehensive examination'" to determine the validity of a defendant's attempted waiver of the sixth amendment right to conflict free counsel. 517 F.2d at 278 (quoting Van Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, 323, 92 L.Ed. 309, 321 (1948)). But it does not permit the court to subject defendants to procedures that would violate other constitutional rights. As the Supreme Court has stated:
In addition to asking that this court prohibit the hearings as contemplated by the district court, petitioners also seek to obtain transcripts of an ex parte presentation made to the district court by the government in support of its motion to disqualify. We agree with petitioners that due process requires that they have access to the transcript.
Although ex parte conferences are not per se unconstitutional, they "should occur but rarely, especially in criminal cases." United States v. Adams, 785 F.2d 917, 920 (11th Cir.1986); see also Code of Judicial Conduct for United States Judges, Canon 3(A)(4) ("A judge should ... neither initiate nor consider ex parte ... communications concerning a pending or impending proceeding."). Ex parte communications generally are disfavored because they conflict with a fundamental precept of our system of justice: a fair hearing requires "a reasonable opportunity to know the claims of the opposing party and to meet them." Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 773, 776, 82 L.Ed. 1129 (1938). Thus, even when ex parte conferences are justified as, for example, a necessary means to resolve fears of intimidation of a witness, e.g., Adams, supra, or a juror, e.g., United States v. Gagnon, 470 U.S. 522, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985); United States v. Watchmaker, 761 F.2d 1459 (11th Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 879, 88 L.Ed.2d 917 (1986), a transcript of the encounter usually is provided to insure that one party has not gained any unfair advantage before the court. See Gagnon, 105 S.Ct. at 1483; Watchmaker, 761 F.2d at 1466; cf. Adams, 785 F.2d at 920 & n. 2 (ex parte conference with witness not improper where counsel aware of transcript but did not request copy). Similarly, to ameliorate any unfair advantage — or the appearance thereof — that might have resulted from the ex parte presentation at issue here, the transcript must be made available to petitioners.
Mandamus is a drastic remedy, "to be invoked only in extraordinary situations." Kerr v. United States District Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976). It is appropriate only "to remedy a clear usurpation of power or abuse of discretion," In re Extradition of Ghandtchi, 697 F.2d 1037, 1038 (11th Cir.1983), and when no other adequate means of obtaining relief is available, United States v. Fernandez-Toledo, 737 F.2d 912, 919 (11th Cir.1984).
These standards are met here. The district court has proposed a procedure that not only in itself would violate constitutional rights of the defendants, but also likely would result in the improper disqualification of defense attorneys, thereby delaying once again resolution of this case in contravention of the defendants' rights to a speedy trial. Moreover, to refuse defendants access to the information presented to the court ex parte would subject them to a trial unaware of the accusations leveled against them and their attorneys.
Accordingly, it is ORDERED that the district court refrain from conducting any in camera, ex parte hearings as contemplated in its June 23 order; that the court hold for petitioner Siegrist a hearing in open court pursuant to the standards established in United States v. Garcia, supra; and that the court make available to defendants the transcripts of the May 15 ex parte conference. The transcripts are to remain sealed.
DR 4-101(B) (emphasis added).
To the extent that the government's "de facto co-counsel" theory is based on a desire to give added protection to the attorney-client privilege, its impact would be counterproductive. If attorneys were under a duty to protect the privileges of clients of their "de facto co-counsel," the "co-counsel" could divulge to these attorneys the confidences of their clients without violating any ethical restrictions, as is now the case within a single firm. By contrast, so long as the duty of confidentiality remains limited to the firm actually representing an individual, that firm may not disclose privileged information even to other firms with which they are working closely on matters for a common client.
The final and perhaps most significant objection to the government's "de facto co-counsel" theory is that it is too amorphous for judicial administration. The government has offered no principled guidelines for determining why or when one set of attorneys might be disqualified from representing a client because of the current or prior participation of other firms. Presumably, the government would have counsel disqualified if they possess an indeterminate critical mass of privileged information. Such an uncertain rule would affect adversely the sixth amendment right to counsel, the protection accorded privileged information, and the ability of the courts to conduct criminal trials with relative efficiency.