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UNITED STATES v. WALSH

November 10, 1988

UNITED STATES OF AMERICA
v.
FRANCIS WALSH, JR.



The opinion of the court was delivered by: RODRIGUEZ

 This matter comes before the court on a motion by the government to disqualify counsel representing Francis Walsh, Jr. Before ruling on the disqualification motion, this court must first determine which legal and ethical disqualification rules apply and whether such application violates any of the constitutional rights of the defendant. Specifically, the court must decide whether pursuant to the General Local Rules of the United States District Court for the District of New Jersey (hereinafter Local Rules), the ABA Model Rules of Professional Conduct (hereinafter Model Rules) apply as the governing disciplinary standard or whether the court is bound to apply the Model Rules as amended by the Supreme Court of New Jersey. Resolution of this issue prior to ruling on the disqualification motion is imperative as the Model Rules provide a different standard in determining disqualification than would the rules as amended by the New Jersey Supreme Court. In addition, this court must decide whether the government waived its right to object to defendant's counsel.

 I.

 Defendant Francis Walsh is charged in a two-count indictment with racketeering activity in violation of the federal Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c) and § 1962(d). Defendant has hired the law firm of Hannoch Weisman as his legal counsel. William W. Robertson, one of the firm's partners, had served with the Department of Justice in the United States Attorney's office for the District of New Jersey from about November 1972 to December 1981. During his federal tenure, he served as an assistant U.S. attorney in charge of a unit of the Department of Justice known as the Organized Crime and Racketeering Section, Newark Strike Force and later served as First Assistant U.S. Attorney in the District of New Jersey from 1978 to 1980. He then served as the court-appointed United States Attorney before joining the Hannoch Weisman firm in December 1981. In addition, Robert J. Del Tufo, who served as a member of the New Jersey State Commission of Investigation (hereinafter SCI) from April 1981 to March 1984, also is a member of the Hannoch Weisman firm, which he joined in April 1986.

 The government moved to disqualify Robertson and the Hannoch Weisman firm. The government asserts that during his assignment to the Strike Force, Robertson exercised supervisory authority in activities closely related to the government's case against defendant. In addition, the government contends that the SCI, during the period while Del Tufo was a member, conducted an investigation which focused on defendant. The government asserts that Del Tufo participated in and had personal knowledge of the investigation. Thus, the government argues that pursuant to the disciplinary rules, both Robertson, Del Tufo and the Hannoch Weisman firm are barred from representing Walsh in the present case. Counsel for defendant dispute the government's claims.

 In support of its motion, the government argues that pursuant to Local Rules 6, 7 and 1, this court is bound to apply the Model Rules as amended by the New Jersey Supreme Court. Counsel for defendant disagrees. This court heard oral argument on this issue and then ordered supplemental briefing. Upon review of the submissions of the parties and for the reasons stated herein, this court holds that the Local Rules incorporate by reference the Model Rules without amendment. In addition, the court has determined that it will follow the guidance provided by Congress in the Ethics in Government Act of 1978, 18 U.S.C. § 207, which delineates certain restrictions for government officials entering the private sector. Finally, this court holds that the government has not waived its right to object to defendant's counsel.

 II.

 Analysis of this issue must begin within the framework of the Sixth Amendment which entitles a criminal defendant to effective assistance of counsel. The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right . . . to have Assistance of Counsel for his defense." In a litany of cases, the Supreme Court has long recognized the principle expressed in the seminal case of Powell v. Alabama that the Sixth Amendment right of counsel affords the defendant with "a fair opportunity to secure counsel of his own choice." 287 U.S. 45, 53, 77 L. Ed. 158, 53 S. Ct. 55 (1932). See, e.g., Chandler v. Fretag, 348 U.S. 3, 9, 99 L. Ed. 4, 75 S. Ct. 1 (1954); Glasser v. United States, 315 U.S. 60, 70, 86 L. Ed. 680, 62 S. Ct. 457 (1942).

 The Supreme Court recently reaffirmed this principle by acknowledging that the "right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment." Wheat v. United States, 486 U.S. 153, 108 S. Ct. 1692, 1697, 100 L. Ed. 2d 140 (1988). Although this right is not absolute and may be circumscribed, a trial court "must recognize a presumption in favor of [a defendant's] counsel of choice." Id. 108 S. Ct. at 1700. Thus, in assessing a disqualification motion, the court must balance the defendant's right to counsel of his choice with the 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." 108 S. Ct. at 1697. In addition, this court notes that disqualification is never automatic. United States v. Miller, 624 F.2d 1198, 1201 (3d Cir. 1980). Within this background, the court now examines the issue at hand.

 III.

 The local rules of this district provide that:

 
The Rules of Professional Conduct and the Code of Judicial Conduct of the American Bar Association shall govern the conduct of the Judges and the members of the bar admitted to practice in this Court.

 D.N.J. Gen. R. 6. Local Rule 6, when read in isolation, clearly provides for governance according to the Model Rules. The government contends, however, that Local Rule 6 must be read in the context of other Local Rules and the legislative history of the rules. Such a reading, the government asserts, demonstrates that the Model Rules must be applied as amended by the Supreme Court of New Jersey including incorporation of the New Jersey Rules of Professional Conduct (hereinafter N.J. Rules). Contrary, the defendant argues that the district court is not bound by any single governing rule, and that in any event, the governance of professional conduct before the district court is a matter of federal law.

 As earlier stated, resolution of this issue is crucial because of the varying disqualification standards of the Model Rules and N.J. Rules. Specifically, Model Rule 1.11, which governs disqualification, provides for a standard based on a "personal and substantial participation" test. *fn1" Contrary, New Jersey's version of Rule 1.11 adopts a more demanding standard for disqualification of a former government employee. The New Jersey rule, in addition to the personal and substantial participation test, applies an "appearance of impropriety" standard to former government employees. *fn2" A second critical area of divergence centers on the standards for disqualifying a firm employing a past government employee. Model Rule 1.11 specifically permits screening of attorneys, even if the attorney personally or substantially participated in the same matter in which the attorney's firm is involved. Contrary, the New Jersey version of 1.11 ...


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