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United States v. Crowder

United States District Court, District of Columbia

May 25, 2018

UNITED STATES OF AMERICA,
v.
AMBER R. CROWDER, also known as “AMBER HINES, ” and SHAUNA MARIE BRUMFIELD, also known as “MARIE MATTHEWS, ” also known as “SHAUNA SNELL, ” Defendants.

          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 ...


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