SDNY Judge Disqualifies Lawyer for Potential Conflicts of Interest Despite Client's Waiver

Guest Contributor Justin M. Sher, Esq., writes:

In United States v. Rivera, 2009 WL 1059641 (S.D.N.Y. Apr. 13, 2009), SDNY Judge Baer held that a defendant could not waive his lawyer’s potential conflicts of interest where the lawyer had previously represented two co-defendants and shared an office suite with her father, who represented a third co-defendant.  The case is significant because the court concluded that it was obliged to disqualify the lawyer, notwithstanding her client’s waiver, because of multiple potential conflicts.

Facts

The defendant, Hector Rivera, was charged along with 13 other defendants with violating the Hobbs Act by conspiring to hijack Federal Express tractor-trailers.  Mr. Rivera’s lawyer, Stacey Richman, Esq., had previously represented two of Mr. Rivera’s co-defendants and continued to share an office with her father, Murray Richman, Esq., who represented a third co-defendant.  At the government’s request, the court held a hearing pursuant to United States v. Curcio, 25 F.3d 146 (2d Cir. 1994), to determine whether Ms. Richman’s conflicts of interest were “actual, potential or nonexistent.”  Before accepting a waiver of such conflicts, Curcio further obligated the court to (i) advise Mr. Rivera of the dangers that arise from Ms. Richman’s conflicts of interest; (ii) determine whether Mr. Rivera understood those risks and freely chose to take them; and (iii) give Mr. Rivera time to digest and contemplate the risks. 

During the hearing, Mr. Rivera received independent legal advice from another lawyer.  At the conclusion of the hearing, Mr. Rivera offered to waive Ms. Richman’s potential conflicts of interest.
 
Holding

Considering the “multiple conflicts of interest together, rather than in isolation,” the court held that the potential conflicts posed by Ms. Richman’s representation could evolve into actual conflicts that were among the “narrow category of conflicts that cannot be waived.” Rivera, 2009 WL 105964, *2 (emphasis added).  The court explained that it had no reason to doubt the professionalism of Ms. Richman or her father but that it was precisely because the court expected Ms. Richman to abide by her ethical duties that the court was concerned about her potential conflicts of interest. 

First, the court found that Ms. Richman owed continuing duties of loyalty and confidentiality to the two co-defendants who were her former clients.  If either co-defendant testified in a way that was adverse to Mr. Rivera’s interests, the court determined that there was a substantial likelihood that Ms. Richman’s ethical obligations would impair her ability to zealously advocate for Mr. Rivera by, for example, limiting her ability to attack her former client’s credibility on cross-examination.

Second, because she practiced law in the same office and shared a staff and fax machine with her father, the court found that Ms. Richman might owe ethical duties to her father and his clients, one of whom was also a co-defendant.  The court recognized the possibility that Ms. Richman might overhear or come across information that would be helpful to her client but also would be “ethically off limits.”  The court concluded that this too could impair her ability to effectively represent Mr. Rivera.

The court held that the likelihood that one or more of Ms. Richman’s potential conflicts could burgeon into a “severe and actual conflict” created an intolerable risk and “obliged” the court to disqualify Ms. Richman.

Comment

United States v. Rivera is noteworthy for the court’s holding that several potential conflicts of interest were, in aggregate, sufficiently severe that they obliged the court to disqualify a lawyer notwithstanding her client’s offer to waive the conflicts.  By finding that it was “obliged” to disqualify Ms. Richman, the court implicitly determined that Ms. Richman’s potential conflicts were analogous to “an actual conflict that is so severe as to indicate per se that the rendering of effective assistance will be impeded . . . .”  See United States v. Perez, 325 F.3d 115, 126 (2d Cir. 2003) (emphasis added).

The case is also noteworthy for the court’s suggestion that lawyers who share an office and other resources may owe ethical duties to each other and each other’s clients.  The court did not find that Ms. Richman worked for or was otherwise affiliated with her father’s law firm or that she and her father presented themselves to clients as a single firm.  Nor did the court explicitly assign significance to the lawyers’ relationship as father and daughter, although this fact certainly makes the case unusual and distinguishable from most other scenarios.  The court noted only that Ms. Richman and her father shared an office, staff and fax machine and observed that, as a result, they could come across confidential information concerning each other’s clients.  The case thus suggests that lawyers who merely share an office and certain other resources face a greater risk of being disqualified if they represent clients with potentially divergent interests.