The opinion of the court was delivered by: RICHEY
On February 26, 1990, only ten minutes before the Court was to take the bench and begin jury selection in this second trial of a multi-defendant conspiracy case, the Public Defender Service ("PDS") filed a motion on behalf of its client H. S., Jr. for the disqualification of Mark Rochon, who entered his appearance as one of Constance Perry's attorneys on February 23, 1990. Sometime in the last few weeks, Mr. Rochon entered into a law partnership with Gary Kohlman, Ms. Perry's lead counsel in this case since at least May 1989. After oral argument on this issue, the Court ruled from the bench that Mr. Rochon's prior representation of H. S., Jr. while at PDS creates a potential conflict of interest, which requires his disqualification, but that H. S., Jr.'s waiver as to Mr. Kohlman allows him to continue representing Ms. Perry. Ms. Perry, through Mr. Kohlman, has filed a motion for reconsideration of this Order, which the Court will deny.
I. Relevant Facts and Allegations
Pending before this Court are cocaine distribution charges against H. S., Jr. arising out of the identical facts and circumstances underlying the conspiracy charges against Ms. Perry. H. S., Jr. would be a co-defendant along with his alleged co-conspirators in this trial but for his status as a juvenile. H. S., Jr., who will be tried at a later date, has already appeared at least twice before this Court at a hearing to determine whether he should be transferred to adult status for the purpose of criminal prosecution.
H.S., Jr.'s motion alleges that beginning in January 1989, Mr. Rochon -- then Trial Chief of PDS -- "took an active role in the representation of H.S., Jr."; "was frequently and extensively consulted by the attorneys of record in the various proceedings in which H. S., Jr. has appeared"; and "actually represented H. S., Jr. in matters that occurred prior to the lodging of formal charges." PDS Motion at 2. While the motion concedes that Mr. Rochon never met H. S., Jr., it alleges that Mr. Rochon was privy to confidential attorney-client communications. PDS also stated at the February 26, 1990 oral argument on this issue that Mr. Rochon's involvement in H. S., Jr.'s case was extensive, including assisting in witness preparation for H. S., Jr.'s transfer hearing before this Court and meeting with government counsel to discuss his case as recently as January of this year. Furthermore, PDS specifically said that H. S., Jr. was not seeking the disqualification of Mr. Kohlman, and in the afternoon of February 26, 1990 H. S., Jr. submitted to the Court, through PDS, a detailed written waiver of his right to seek Mr. Kohlman's disqualification from this case based on his being Mr. Rochon's law partner.
(1) Mr. Rochon's Potential Conflict of Interest
Although Mr. Rochon's representation of Ms. Perry in this trial may not create a conflict of interest at this time, it certainly does create a potential conflict of interest which, as the trial progresses, may become an actual conflict in violation of the Code of Professional Responsibility ("Code"), adopted by this Court in Local Rule 706(a).
The Court holds that this potential conflict of interest exists,
because it cannot conclude on this record that Mr. Rochon did not learn any confidential information during his prior representation of H.S., Jr. at PDS.
That Mr. Rochon never met or spoke with H. S., Jr. is by no means dispositive. What matters is whether Mr. Rochon and H. S., Jr. had an attorney-client relationship. The Code states in relevant part that an attorney
(1) Reveal a confidence or secret of his client.
(2) Use a confidence or secret of his client to the disadvantage of his client.
(3) Use a confidence or secret of his client for the advantage of . . . a third person . . . .
DR 4-101(B); accord D.C. Rules 1.6(a), (b). It is simply incorrect to argue, as Mr. Kohlman does, that when several lawyers in a law firm cooperate and consult each other in the course of representing an individual, an attorney-client relationship exists only with respect to those attorneys who actually met and spoke with that individual.
Even though only Mr. Rochon's colleagues at the "law firm" PDS -- and not Mr. Rochon himself -- may have had direct contact with H. S., Jr., the Court cannot conclude on this record that Mr. Rochon and H. S., Jr. did not have an attorney-client relationship.
Before he left PDS, Mr. Rochon was extensively involved in representing H. S., Jr. and worked in close consultation with other PDS attorneys, some of whom must have had direct contact with H. S., Jr. It is highly likely that Mr. Rochon obtained some of H. S., Jr.'s confidences or secrets in the course of consulting with his colleagues at PDS. Moreover, H. S., Jr. and PDS directly contradict Mr. Rochon's statement that he never learned any confidential ...