MEMORANDUM OPINION
JOHN
D. BATES United States District Judge
Before
the Court is [25] the government's motion to disqualify
defendant Amber Crowder's counsel, Gregory Lattimer. The
government claims that Lattimer must be disqualified because
of a “web of representations” he has allegedly
spun, serving as an attorney not only for Crowder but also
for defendants' companies-A Simple Solution, LLC and
Education Connection, LLC-and, at one time, for Crowder's
co-defendant, Shauna Brumfield. Gov't's Mot. to
Disqualify Gregory Lattimer as Counsel for Amber Crowder
(“Gov't's Mot.”) [ECF No. 25] at 11-12,
14-16, 21. These varied representations, the government says,
create conflicts of interest to which the clients have not
consented and that render Lattimer unable to represent
Crowder in this case. Id. at 10-19, 21. The
government also asserts that it wishes to subpoena Lattimer
as a trial witness, which could likewise prohibit him from
serving as Crowder's attorney. See id. at 19-20.
However, based upon the existing record and Lattimer's
uncontested statements at the motions hearing held on this
matter, the Court finds that Lattimer never enjoyed an
attorney-client relationship with either Brumfield or
defendants' companies that would form the basis for a
disqualifying conflict. The Court also finds that Lattimer
will not be a necessary witness, and therefore can remain an
advocate. Hence, for the reasons explained below, the Court
will deny the government's motion.
I.
BACKGROUND
Crowder
and Brumfield are currently awaiting trial on charges related
to an alleged scheme to defraud the District of Columbia
Public Schools (DCPS). The investigation in this case began
in February 2013, when the D.C. Office of Inspector General
(OIG) issued an administrative subpoena to Education
Connection, requesting documents relating to a person whom
defendants claimed was an employee of that company.
See Subpoena Duces Tecum & Decl. of Custodian of
Records, Ex. A to Gov't's Mot. [ECF No. 25-1].
Brumfield responded to the subpoena as the
“owner” of Education Connection. Id.
There was no indication that Lattimer played any role in
Brumfield's response. See id.; see also
Gov't's Mot. at 2.
On
April 1, 2016, the government served grand jury subpoenas on
Brumfield, in her capacity as registered agent for Education
Connection and A Simple Solution, seeking records from those
companies. See Education Connection Subpoena, Ex. A
to Notice of Potential Conflict of Interest [ECF No. 16-1]; A
Simple Solution Subpoena, Ex. B to Notice of Potential
Conflict of Interest [ECF No. 16-2]. On April 18, 2016,
Lattimer emailed the government, stating that he had
“been advised that [the government] sent a subpoena to
Simple Solution, LLC care of Shauna Brumfield, its purported
registered agent.” See Email from Gregory
Lattimer to Anthony Saler, Ass't U.S. Att'y (Apr. 18,
2016, 9:06 AM) (“April 2016 Email”), Ex. B to
Gov't's Mot. [ECF No. 25-2]. He did not say by whom
he had been so advised. He claimed, however, that A Simple
Solution “is defunct, ” and that therefore the
subpoena to the company “is in error.”
Id. “Nonetheless, ” he continued,
“I have instructed Ms. Crowder and Ms. Brumfield to
gather any documents that either may have that is
[sic] responsive to the subpoena and to provide them
to me.” Id. Lattimer expressed confidence that
the government would therefore withdraw the subpoena, which
would “obviate the need for [him] to seek court
protection, as [he sought] to accommodate” the
government's request. Id. On April 23, Lattimer
provided the government what he said were all of the
responsive records of both Education Connection and A Simple
Solution “that ha[d] been located.” Email from
Gregory Lattimer to Anthony Saler, Ass't U.S. Att'y
(Apr. 23, 2016, 5:44 PM), Ex. C to Gov't's Mot. [ECF
No. 25-3]. He repeated that “neither company remain[ed]
in business, ” and that, therefore, the
government's “subpoena to Ms. Brumfeld
[sic] was unenforceable”; but he said that,
“out of a spirit of cooperation, I am producing what we
have in a further attempt to convince the government of our
good-faith.” Id.
In July
2017, believing that the earlier response to the grand jury
subpoenas was incomplete, the government contacted Lattimer
and requested “a number of documents missing from the
response.” Email exchange between Anthony Saler,
Ass't U.S. Att'y, and Gregory Lattimer
(“July/Aug. 2017 Emails”), Ex. E to
Gov't's Mot. [ECF No. 25-5] at 3.[1] In responding to
this inquiry, Lattimer consistently referred to “my
client”-in the singular-and told the government that
“she provided what she had in her possession” but
that some documents were stored on her DCPS account, to which
she no longer had access. Id. at 2. The government
responded by expressing its view that Lattimer's
“client is Education Connection which was run from
Shauna Brumfield's house.” Id. at 1. This
view stemmed from an email exchange in May 2017, see
Gov't's Mot. at 3, in which the government asked
Lattimer if he was representing a number of people and
entities, including Crowder, A Simple Solution, and Education
Connection, see Email exchange between Anthony
Saler, Ass't U.S. Att'y, and Gregory Lattimer
(“May 2017 Emails”), Ex. D to Gov't's
Mot. [ECF No. 25-4] at 1. At that time, Lattimer stated:
“I do represent the individuals and companies that you
have identified. However, Education Connections
[sic] and A Simple Solution are no longer in
business.” Id. In the July email exchange,
however, Lattimer did not directly respond to the
government's assertion that Education Connection was his
client. Instead, he stated that he “had [his] client
search again for the records that [the government was]
seeking, ” but that “[s]he never had physical
possession of the records of Education Connection which as
you acknowledge, was run out of the house of Ms.
Brumfield.” July/Aug. 2017 Emails at 1.
On
February 7, 2018, the government filed a notice with the
Court stating that it believed Lattimer had a potential
conflict of interest. See Notice of Potential
Conflict of Interest [ECF No. 16] at 3. In the weeks after
this filing, the government contacted Lattimer (and
Brumfield's counsel) in hopes of agreeing on a
stipulation regarding the authenticity of the documents
received in response to the grand jury subpoenas.
See Email exchange between Gregory Lattimer and
Anthony Saler, Ass't U.S. Att'y, Ex. 3 to Def.'s
Opp'n [ECF No. 35-3] at 1.[2] The government believed its
proposed stipulation would address its concerns about
Lattimer's alleged past representation of defendants'
companies. Id. The parties could not agree on a
stipulation-not because of a factual dispute over the
records' authenticity, but rather because of a legal
dispute over whether the subpoenas were enforceable against
the companies given Lattimer's understanding that they no
longer existed when the subpoenas were issued. See
id.; Email exchange between Gregory Lattimer and Anthony
Saler, Ass't U.S. Att'y (“Feb. 2018
Emails”), Ex. 2 to Def.'s Opp'n [ECF No. 35-2]
at 2; see also Def.'s Opp'n at 13
(“There is no dispute about the authenticity of
Education Connection or A Simple Connection documents as
evidenced by the stipulation proposed by defendant Crowder .
. . .”).
During
this back-and-forth, Lattimer stated that in 2016 he had
“reached out to Ms. Brunfield [sic] and Ms.
Crowder to see if they had any documents that you might have
been seeking.” See Feb. 2018 Emails at 2. This
comment prompted the government to ask in what capacity-as
whose counsel-Lattimer believed he was acting when he
provided the responsive documents. See id. Lattimer
responded by telling the government: “I had represented
A Simple Solution and Education Connection when they were
viable entities. At the time that you forwarded the subpoena
I represented Ms. Crowder.” Id. at 1. Lattimer
continued to assert that the companies did not exist when the
subpoenas were issued. See id.[3]
Soon
after this exchange, on March 2, 2018, the government filed a
motion to disqualify Lattimer as Crowder's counsel in
this case. See Gov't's Mot. at 1. After full
briefing, the Court held a motions hearing. At the hearing,
Lattimer made a number of factual statements regarding his
relationships with the companies and with Brumfield. First,
he stated that the sum total of his representation of the
companies was to make one or two phone calls to regulatory
authorities, asking how to respond to an inquiry or how to
file documents. See Tr. of Mot. Hr'g [ECF No.
54] at 37:1-:12. While Lattimer told the authorities that he
was calling on behalf of one of the companies, he never filed
anything on the companies' behalf, never had a retainer
agreement, and never received remuneration. Id. at
37:13-:21; see Lattimer Aff., Ex. 4 to Def.'s
Opp'n [ECF No. 35-4] ¶¶ 3-4. His last act on
the companies' behalf occurred in 2011 or 2012; he
therefore had no involvement with the companies by the time
of the OIG subpoena in 2013. Tr. of Mot. Hr'g at
37:22-:23, 38:17-39:19. He had no knowledge of the
companies' business operations or any other confidential
information except through his representation of Crowder in
this case. See Lattimer Aff. ¶ 4; Tr. of Mot.
Hr'g at 38:7-:16, 46:6-:14. To the extent he had any
conversations regarding the companies, he stated that they
would have been with Crowder rather than with Brumfield or
anyone else. Tr. of Mot. Hr'g at 39:20-40:5.
As for
Brumfield, Lattimer stated that he has never had a
conversation with her outside the presence of her attorneys,
and that he never represented her. Id. at 42:2-:3,
42:10-:12; Lattimer Aff. ¶ 1. He clarified that he found
out about the subpoenas through Crowder, and did not recall
having discussed the grand jury subpoenas with
Brumfield's counsel. Tr. of Mot. Hr'g at 36:1-:9,
42:13-:17. Finally, Lattimer said that he had responded to
the subpoena not as a representative of the companies, but
rather because he was worried that the government's
statement that “your client is Education
Connection” meant that the government believed Crowder
to be an alter ego of the companies. Id. at
34:19-35:13, 36:12-:17, 42:19-:22. He therefore sought to
provide any available documents to placate the government,
and asked Crowder to find any that were available.
Id. at 35:19-:22. Lattimer did not speak directly to
Brumfield regarding the subpoenas, but does not know whether
intermediaries-presumably Crowder-may have, and thereby
indirectly conveyed information. Id. at 41:21-42:7.
The government acknowledged that it had no basis to dispute
any of Lattimer's factual representations. Id.
at 46:18-55:7.
II.
LEGAL STANDARD
A
district court may disqualify an attorney from appearing in a
case before it “if there is a conflict of interest or
if the attorney has committed ethical violations.”
Konarski v. Donovan, 763 F.Supp.2d 128, 135 (D.D.C.
2011). However, “[d]isqualification of counsel is
uncommon, as evidenced by the relative paucity of case law
directly on point.” Paul v. Judicial Watch,
Inc., 571 F.Supp.2d 17, 20 (D.D.C. 2008). Indeed,
disqualification is highly disfavored, and any motion to
disqualify counsel is therefore examined with a skeptical
eye. See Konarski, 763 F.Supp.2d at 135-36; see
also Koller ex rel. Koller v. Richardson-Merrell Inc.,
737 F.2d 1038, 1056 (D.C. Cir. 1984), vacated on other
grounds, 472 U.S. 424 (1985) (“[U]nless an
attorney's conduct tends to ‘taint the underlying
trial, ' . . . courts should be quite hesitant to
disqualify an attorney.” (citation omitted)). Before
granting a motion to disqualify, a court must consider
“first, whether a violation of an applicable Rule of
Professional Conduct has occurred or is occurring, and if so,
whether such violation provides sufficient grounds for
disqualification.” Headfirst Baseball LLC v.
Elwood, 999 F.Supp.2d 199, 204 (D.D.C. 2013) (citation
omitted). In making these determinations, courts in this
district follow the District of Columbia Rules of
Professional Conduct. See LCrR 57.26(a). In a
criminal case, constitutional considerations also come into
play. The Sixth Amendment guarantees criminal defendants the
right to counsel of their choice. See U.S. Const.
amend. VI; Wheat v. United States, 486 U.S. 153,
158-59 (1988). However, this right to counsel “includes
a ‘correlative right to representation that is free
from conflicts of interest.'” United States v.
Lopesierra-Gutierrez, 708 F.3d 193, 199 (D.C. Cir. 2013)
(quoting Wood v. Georgia, 450 U.S. 261, 271 (1981)).
Unfortunately, these two Sixth Amendment rights work at
cross-purposes when a defendant's chosen counsel has an
identified conflict of interest. See id. Moreover,
“courts have an independent interest in ensuring that
criminal trials are conducted within the ethical standards of
the profession and that legal proceedings appear fair to all
who observe them.” Wheat, 486 U.S. at 160.
Hence, if a court identifies a conflict, it must balance
these Sixth Amendment and judicial interests when deciding
whether disqualification is proper. See
Lopesierra-Gutierrez, 708 F.3d at 200. “The
outcome of that balance turns on the nature and extent of the
conflict.” Id.
III.
DISCUSSION
The
government's claims implicate three rules of professional
conduct, spread over three potential conflicts. The Court
...