Appeal from the United States District Court for the Central District of Illinois, Springfield Division. No. 82 CR 30097 -- J. Waldo Ackerman, Judge.
Pell and Flaum, Circuit Judges, and Henley, Senior Circuit Judge.*fn* Flaum, Circuit Judge, concurring.
This is an interlocutory appeal from a pretrial order of the district court denying the Government's motion for disqualification of defense counsel in a criminal prosecution. A grand jury had returned a three-count indictment against Rickey and Elaine White, husband and wife, charging offenses under the Controlled Substances Act, Pub. L. 91-513, 84 Stat. 1242. Count I alleged that defendants conspired to possess with intent to distribute more than one hundred pounds of marijuana and one-quarter pound of cocaine. In particular, Count I stated that defendants, in furtherance of the conspiracy, purchased approximately one hundred twenty-five pounds of marijuana and one-quarter pound of cocaine from, among others, Vernon Michels, an unindicted coconspirator. Counts II and III charged defendants with the substantive offense of possessing marijuana and cocaine with the intent to distribute. A superseding indictment, returned on March 9, 1983, added a fourth count, which alleged that Elaine White obstructed justice by threatening a witness who had appeared before the grand jury.
In December 1982, after the grand jury returned the first indictment, the Whites telephoned attorney Michael Pritzker and discussed retaining him as defense counsel. The Whites claim they obtained Pritzker's name from a referral service in Washington, D.C., which recommended Pritzker as an experienced and competent criminal defense lawyer. The Government has suggested that the Whites obtained Pritzker's name from Vernon Michels, but the Whites deny this. During his initial discussion with the Whites, Pritzker learned that the Government would likely call Vernon Michels as a witness in the case. Pritzker informed the Whites that he had previously represented Michels, that the Government might object to the Whites' retaining Pritzker as defense counsel, and that he would telephone the Office of the United States Attorney in Springfield to discuss the Government's possible objection. Prior to filing his appearance in December, Pritzker advised the United States Attorney of the possible conflict in the case. The Government apparently took no action on the information until April 27, 1983, at which time it moved for the disqualification of Pritzker as counsel for either of the Whites.
Chief District Court Judge J. Waldo Ackerman held four evidentiary hearings prior to issuing a final ruling on the Government's motion. During these hearings, Judge Ackerman took documentary evidence and heard the testimony of the Whites, Pritzker, and Michels. On the first day of hearings, Judge Ackerman called the Whites before him and inquired whether they would voluntarily hire different counsel. Judge Ackerman identified some of the hazards the Whites would encounter if they retained Pritzker. For example, he told the Whites: "Now, normally a lawyer who has represented a client has some feeling that he cannot conduct cross examination strenuously. . . . Sometimes for tactical reasons it's important for your lawyer to make the witness look as bad as he can. Now, where you have got a lawyer who represented a witness, that may be a conflict of interest in his loyalty to you and the witness." The Whites stated they understood the risk Judge Ackerman identified, but they remained determined to retain Pritzker as defense counsel. At one point Mrs. White stated: "I would be really upset if you would take away our lawyer now because we have been going through this, as difficult as it is, and to start over again after all this time, I -- you know. I would be terribly upset to start again now. It's been hard enough." Judge Ackerman thereupon decided to hold further hearings in order to ascertain the nature of Pritzker's potential conflict.
The hearings revealed the history of Pritzker's prior contacts with Michels. First, in 1976 Pritzker served as counsel to Michels' brother in a criminal prosecution. Vernon Michels was not a defendant in that case, but he did discuss the case with Pritzker and he did pay for his brother's defense. Second, Pritzker represented Michels in April 1981 following Michels' arrest in Chicago on charges of possessing cocaine. Pritzker had several private conversations with Michels about the case and, during some of those conversation, took notes on the information which Michels disclosed. Pritzker submitted the notes, with Michels' consent, to Judge Ackerman, who reviewed them in camera. Third, in the summer of 1981, Pritzker represented Michels in Florida, but he did not appear in any court proceeding on Michels' behalf. Michels apparently was abducted from Illinois to Florida and held in Florida against his will by unpaid and evidently impatient drug suppliers. Michels escaped from his captors and made contact with the Federal Bureau of Investigation as well as with state law enforcement agencies. Michels discussed the events leading to the abduction with officials of those organizations. After those conversations were underway, Michels telephoned Pritzker, who flew to Florida and again had private conversations with Michels concerning drug trafficking activities. Fourth and finally, Pritzker represented Michels before a grand jury in the Central District of Illinois. The grand jury served a subpoena on Michels commanding him to testify in connection with an investigation of drug trafficking. That investigation ultimately led to the indictments in this case. Pritzker filed motions to delay or entirely excuse his client's appearance before the grand jury. Michels, however, eventually decided to appear before the grand jury, and Pritzker at that point moved to withdraw as Michels' counsel. That motion was granted, and Michels obtained appointed counsel.
Michels testified before Judge Ackerman that he had confidential conversations with Pritzker when Pritzker served as his lawyer. Michels stated that he believed those conversations to be privileged and that he would not waive his attorney-client privilege. Michels' testimony before Judge Ackerman also revealed that Michels had entered into a plea agreement with the Government. Part of that agreement required Michels to cooperate fully with the Government and reveal the full extent of his involvement in drug trafficking. Michels volunteered to Judge Ackerman that he had given Pritzker details of one drug transaction which he had not revealed to the Government. Finally, Michels admitted to Judge Ackerman that he still owed Pritzker for the prior legal services Pritzker had rendered.
After reviewing the evidence he received and the testimony he heard, Judge Ackerman informed counsel for the parties that he would deny the Government's motion for disqualification if the Whites waived their right to conflict-free representation. Judge Ackerman reasoned that he could shape Pritzker's cross examination of Michels in such a way as to protect the attorney-client privilege. Judge Ackerman stated: "Of course, there are things I have to do to protect . . . the witness. . . . Counsel may not cross examine as to anything told him in . . . confidence, . . . and [Michels] has a right to decline to answer anything based on privileged communication, and I have a duty to prevent inadvertent disclosures of confidential matters."
Judge Ackerman then called the Whites before him for a second time and explained to them in plain terms that their retention of Pritzker could be unwise. He explained to the Whites that Pritzker labored under three conflicts. First, Pritzker had formerly represented a witness who was likely to testify against them. Second, that witness was financially indebted to Pritzker. Third and finally, Pritzker was to act as counsel for each of the Whites in a single proceeding.
Judge Ackerman made clear to the Whites their case could be substantially weakened because Pritzker might be unable to cross-examine Michels effectively:
Now, when Mr. Pritzker represented him [Michels], any communications, any private or confidential communications, any private or confidential communications that he, the witness, made to Mr. Pritzker, Mr. Pritzker is not going to be able to cross examine him about it.
The best example I can think of -- and, of course, I don't know what Vern Michels said to Mr. Pritzker. So I can't tell you what we're talking about except generally, but let's suppose that he had told Mr. Pritzker that you all had -- didn't buy anything from him, and he didn't know you, and had no substance at all. Then at the trial he testifies that he sold drugs to you.
Now, Mr. Pritzker is not going to be permitted to cross examine him and say, didn't you tell me that the Whites didn't buy drugs from you, and that you didn't know anything about the Whites, and that sort ...