The opinion of the court was delivered by: Simandle, District Judge:
This matter is before the Court on the government's motion to disqualify defense counsel. [Docket Item 68.] Oral argument was held on Tuesday, November 15, 2011.
The Government moves to disqualify William F. Reilly as counsel for Renee Reeves, and Edwin J. Jacobs as counsel for Todd Reeves. The Government also moves the court to conduct conflict of interest inquiries into John S. Furlong as counsel for both Mark Bryan and Harbor House, Inc., as well as William J. Hughes as counsel for both Thomas Reeves and Shellrock, LLC.
Mr. Hughes and Mr. Jacobs have filed opposition to this motion. [Docket Items 77 and 78.] Mr. Reilly's opposition was filed late on October 26, 2011, but has been considered. [Docket Item 82.] The hearing regarding Mr. Furlong's representation of Mark Bryan and Harbor House was continued to a subsequent date,*fn1 while the matter of Mr. Hughes' representation of Thomas Reeves and (with Mr. Jacobs) of Shellrock, LLC, was fully resolved at the hearing*fn2 and is not the subject of this opinion.
This opinion will be limited to addressing the government's motion to disqualify Mr. Reilly and Mr. Jacobs. For the following reasons, the court will grant the government's motion to disqualify Mr. Reilly as counsel for Renee Reeves and the court will deny the government's motion to disqualify Mr. Jacobs as counsel for Todd Reeves.
The instant criminal action involves an alleged conspiracy to violate the Lacey Act and obstruct justice, substantive violations of the Lacey Act, false records and trafficking in illegally taken wildlife provisions, obstruction of justice and obstruction of an agency proceeding. Multiple defendants are charged including Thomas Reeves, Todd Reeves, Renee Reeves, Shellrock, LLC, Mark Bryan, and Harborhouse, Inc.
These defendants have intertwined relationships. Thomas Reeves and Todd Reeves are brothers. Both brothers are 50% co-owners of Shellrock, LLC. Renee Reeves is the wife of Todd Reeves. Mark Bryan is one of the owners and operators of Harbor House, Inc., being a 50% shareholder as is his partner, non-defendant Gary Colbourne.
Each attorney's involvement is detailed below.
A. William F. Reilly, Esq.
William F. Reilly seeks to represent defendant Renee Reeves. Mr. Reilly has represented numerous defendants and witnesses at various points throughout this case. First, Mr. Reilly represented defendants Thomas Reeves and Todd Reeves during the execution of the search warrant on February 4, 2009. His representation of Thomas and Todd Reeves as well as Shellrock, LLC continued uninterrupted for over two years until June 6, 2011. During this time, Mr. Reilly met with the prosecutors in an effort to negotiate a pre-indictment plea and was provided with a reverse proffer by the government.
Mr. Reilly also represented Lillian Reeves and defendant Renee Reeves when the government served them grand jury subpoenas.
Mr. Reilly also appeared on behalf of defendant Pamela Meloney and Gary Colbourne, a co-owner of defendant Harbor House, during their grand jury proceedings on June 7, 2011.
Shortly afterwards, the government filed a motion to disqualify Mr. Reilly from representing any witnesses or potential defendants in this case. This motion was scheduled before Judge Joseph E. Irenas on June 16, 2011, in his capacity as the District Judge hearing grand jury matters. Before this motion was heard, the government was informed by potential witnesses Peggy Earp and Rosemary Rahe that Mr. Reilly represented them as well.
On June 15, 2011, Mr. Reilly sent a letter to Judge Irenas stating that he "withdraws from representation of any party in this matter" and requested the Court to vacate the June 16 hearing. (Gov't. Ex. 6.) Judge Irenas cancelled the conflicts hearing in reliance on Mr. Reilly's representations that he would represent no party.
On August 16, 2011, Mr. Reilly then entered an appearance on behalf of Defendant Renee Reeves. The government argues that due to his representation of numerous parties and witnesses in this case, Mr. Reilly has an unwaivable conflict of interest and must be disqualified from representing Renee Reeves. In addition, Mr. Reilly's representation of Renee Reeves contradicts his representations to Judge Irenas on June 15 that he would withdraw from the representation of any party in this action.
Mr. Jacobs represented brothers Thomas and Todd Reeves after Mr. Reilly withdrew. Mr. Jacobs represented both of these defendants for approximately two months prior to their indictment, and an attorney*fn3 from the firm was present during handwriting exemplars. During this time, the attorney did not speak to Thomas Reeves and the attorney's presence at the handwriting exemplar was to observe and ensure that the agents did not attempt to speak to either of the Reeves brothers. Prior to agreeing to the joint representation, Mr. Jacobs had one forty-minute meeting with Todd Reeves, Thomas Reeves, and Mr. Reilly. During this meeting, no confidences were exchanged between Thomas Reeves and Mr. Jacobs and the entirety of the meeting took place in the presence of both brothers. Mr. Jacobs also represented both brothers during the arraignment and bail hearing, at which point he advised the brothers that he could no longer jointly represent both of them and that Thomas Reeves would need to seek separate counsel.
After the arraignment, Mr. Jacobs withdrew from the representation of Thomas Reeves, who is now represented by Mr. Hughes. Currently, Mr. Jacobs represents Todd Reeves and jointly represents Shellrock, LLC, with Mr. Hughes, as it is wholly co-owned by Todd and Thomas Reeves.
The government then filed the instant motion to disqualify Mr. Reilly and Mr. Jacobs.
The government moves to disqualify Mr. Reilly and Mr. Jacobs due to the serious potential for an unwaivable conflict of interest. The government argues that the Sixth Amendment includes the right to an attorney's undivided loyalty unhindered by conflict of interest. Consequently, an attorney should be disqualified if there is a showing of a serious potential for a conflict of interest. The government relies on United States Supreme Court and Third Circuit precedents, as discussed below, as well as several rules of professional conduct including RPC 1.7 (Conflict of Interest), RPC 1.8 (Conflict of Interest: Current Clients), and RPC 1.9 (Duties to Former Clients).
Specifically, as to Mr. Reilly, the government argues that he has represented three other defendants and four potential witnesses in this matter.*fn4 The government argues that this presents a serious potential for conflict that would violate Renee Reeves' Sixth Amendment protections, several rules of ethical conduct and multiple attorney-client privileges. In addition, Mr. Reilly conceded that conflicts existed in his June 15 letter to Judge Irenas.
Mr. Reilly does not deny that he represented three other defendants: Todd Reeves, Thomas Reeves and Pamela Meloney. Mr. Reilly does not deny that he previously represented four witnesses: Lillian Reeves, Rosemary Rahe, Gary Colbourne and Peggy Earp. However, Mr. Reilly maintains that any confidential communications which happened between him and Gary Colbourne, Pamela Meloney, or Lillian Reeves were "minimal at best." (Reilly Op. Br. at 7.) Mr. Reilly accompanied these individuals to the grand jury proceeding, but these individuals were not called to testify. Mr. Reilly claims all he did was sit in the office with them and wait to ...