APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Misc. No. 75-11)
Aldisert, Forman and Weis, Circuit Judges.
We are asked to decide whether a district court may disqualify an attorney from representing more than one of nine witnesses before a grand jury where each of the witnesses has invoked Fifth Amendment protections. The district court concluded that the joint representation frustrated "the continuation and completion" of the grand jury investigation. Accordingly, the court ordered that each of the witnesses retain separate counsel. The witnesses appealed timely. Finding the district court's conclusion devoid of evidentiary support in the record, we reverse. We neither reach nor express an opinion on the broader issues tendered by the parties.
A federal grand jury sitting in Newark is investigating the National Maritime Union, its officers and its employees for possible violations of the Internal Revenue Laws and the Travel Act, as well as conspiracy to violate these laws. 26 U.S.C. § 7201 et seq.; 18 U.S.C. §§ 1952, 371. In connection therewith, the grand jury subpoenaed the union's books and records, and subpoenaed nine officers and employees to testify.
George J. Koelzer was retained initially to represent both the union and the individuals. He withdrew as counsel for the union after recognizing a conflict of interest. He continued to represent the nine individuals. In this capacity he advised the individuals that there were potentials for conflicts of interest and that, should such a conflict materialize, he had both ethical and legal responsibilities to disclose such a conflict and, thereafter, to withdraw in whole or in part from the proceedings. Also, Attorney Koelzer advised his clients that they would be responsible personally to pay the legal fees he would charge each on an hourly basis.
Upon the government's initiative, the district court conducted hearings to advise the individuals of potential conflicts of interest inter sese and to apprise them of the right to retain separate, independent counsel. Each stated in open court that he understood the possibilities for conflict and the right to independent counsel. None asked for permission to retain separate counsel. Thus, in the words of the court below, each of the individuals "intelligently, knowingly, and voluntarily, waived [his] Sixth Amendment Constitutional right to independent counsel. . . ." Appendix, slip op. at 25-26a.
Subsequently, the individuals invoked the protections of the Fifth Amendment before the grand jury. Thereafter the government moved for an order requiring separate legal representation.
Two additional pieces of information complete the factual mosaic with which we are confronted. Although the government could not ethically approach any of these witnesses to discuss the grant of immunity, it still could represent to Attorney Koelzer that it desired to grant immunity to one or more of his clients. Conceivably, it could do this without revealing the precise identities of the witnesses it desired to immunize. At that point a possible conflict of interest in the Koelzer multiple representation could arise. That point has not been reached. Second, the district court questioned each of the witnesses as to whether he understood the right to obtain independent counsel; the court questioned no witness as to his willingness to testify before the grand jury -- with or without a grant of immunity.
On this record and after hearing oral argument, the district court orally granted the government's motion to require separate counsel. The essence of the court's reasoning is found in the following passage from the transcript:
It seems to me that we balance two rights at this stage. We balance the right of these respondents to be represented by counsel of their choice against the impediment or frustration of the Grand Jury process that this joint representation engenders.
I am convinced that the nine respondents very carefully have evaluated this joint representation by Mr. Koelzer. It is my judgment that the nine have banded together for this joint representation in an effort to stand or fall together in this Grand Jury investigation.
It is clear that none of the nine under the present circumstances are going to aid the Government in an ...