only the former, H. S., Jr. has demonstrated that he can intelligently exercise his right to protect the confidentiality of his communications to Mr. Rochon and his concomitant right to waive Mr. Kohlman's disqualification.
The Court will disqualify Mr. Rochon, ordering him not to divulge any information that he obtained directly or indirectly from H. S., Jr. while he was at PDS, and will ensure that Mr. Kohlman continues to represent Ms. Perry. This prophylactic solution is the only way for the Court to protect the integrity of this trial while also accommodating H. S., Jr.'s important interest in maintaining the confidentiality of any information that Mr. Rochon obtained from him and Ms. Perry's important interest in having counsel of her choice defend her effectively and zealously within the bounds of the Constitution and the Code of Professional Responsibility.
After all, the Court has a responsibility not only to all the defendants as well as the government but also to the orderly administration of justice and the mandate of Rule 2 of the Federal Rules of Criminal Procedure. Any decision other than the one this Court announces herein could thwart this prosecution and require Ms. Perry to be tried later on common evidence, wasting thousands of dollars and the very limited resources of this Court as well as having an impact upon every element of the criminal justice system including, but not limited to, the United States Marshals Service and the Clerk's Office.
If Mr. Kohlman or Mr. Rochon wish to obtain appellate guidance, they may take an interlocutory appeal -- which the Court is prepared to certify if necessary -- on this record to the United States Court of Appeals for this Circuit. But in the meantime, Mr. Kohlman will be required to continue his representation of Ms. Perry without interruption as he has previously agreed.
An Order in accordance with the foregoing Opinion will be issued of even date herewith.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA v. CONSTANCE PERRY
Crim. No. 89-162 (CRR) #24
WAIVER OF CONFLICT OF INTEREST AS TO GARY KOHLMAN, ESQ.
I am H. S., Jr., a juvenile, who is the respondent in United States v. H. S., Jr., No. 89-310M-01. I have been told by my attorneys that Mark Rochon, Esquire and Gary Kohlman, Esquire, of the firm of Kohlman & Rochon represent Constance Perry in the case of United States v. Constance Perry, No. 89-162. I understand that Mark Rochon, Esquire, prior to his employment with Kohlman & Rochon worked for the Public Defender Service. I also understand that Mr. Rochon while at the Public Defender Service worked on my case. I have been told that Mr. Rochon and Mr. Kohlman are now partners in the same law firm. Because Mr. Rochon worked on my case when he was with the Public Defender Service, I do not wish him now to work on another case that is related to my case. I do not wish him to work behalf of Constance Perry. This is because Mr. Rochon had access to information about my case that I do not want any lawyer working on a case related to my own case to have.
I have also been told that I may ask also that Mr. Kohlman be disqualified from representation of Ms. Perry. I understand that once one member of a law firm must be excused from working on a case, other members of that firm are also subject to being excused from working on that same case. My Lawyer has explained to me that I can waive or give up my right to have Mr. Kohlman excused from the defense of Constance Perry. After discussing this matter with my lawyer, I hereby waive or give up the right to have Mr. Kohlman excused from the defense of Constance Perry. I have discussed this matter fully and believe that the decision that I am now making is in my best interests. The reason for this decision is that I am satisfied that none of the information that Mr. Rochon has about my case has been or will be revealed to Mr. Kohlman or used in the defense of anyone else.
/s/ Harry S. Jr.
H. S., Jr., Respondent in 89-310M-01
Date: February 26, 1990
/s/ Katherine M. Washington
Youth Treatment Coordinator
Oak Hill Youth Center
March 1st, 1990 -- March 1, 1990, Filed
In accordance with the Court's Opinion of even date herewith, it is, this 1st day of March, 1990,
ORDERED that Constance Perry's Motion for Reconsideration of the Court's February 26, 1990 oral Order disqualifying her defense counsel Mark Rochon and Raynice Thompson's motion to disqualify Gary Kohlman shall be, and hereby are, DENIED; and it is
FURTHER ORDERED that Mark Rochon's appearance on behalf of Constance Perry shall be, and hereby is, stricken; and it is
FURTHER ORDERED that Mark Rochon shall not discuss with Constance Perry's lead defense counsel Gary Kohlman any information that Mark Rochon obtained directly or indirectly from H. S., Jr. while representing him at the Public Defender Service; and it is
FURTHER ORDERED that Mr. Kohlman shall continue to represent Ms. Perry without interruption.