In what circumstances will a federal court disqualify a defendant's chosen counsel for failing to disqualify the trial counsel because of a conflict of interest?

MultiRegion, United States of America

The following excerpt is from U.S. v. Fulton, 5 F.3d 605 (2nd Cir. 1993):

We recognize that district courts have broad latitude in making a decision whether to disqualify a defendant's chosen counsel. Wheat, 486 U.S. at 163, 108 S.Ct. at 1699. We are also mindful that situations of attorney conflict create a dilemma for trial judges: if the judge disqualifies the attorney, the defendant may argue that he was unfairly denied the attorney of his choice; if the judge fails to so disqualify the attorney, the defendant may still contend that he was denied effective assistance of counsel. Nonetheless, since Fulton's attorney was implicated by the government's witness in the same criminal conduct as the defendant and no determination was made that these allegations were false, the gravity of the situation required the district court to disqualify the conflicted attorney and to reject the proffer of a waiver. Cf. Government of Virgin Islands v. Zepp, 748 F.2d 125, 136 (3rd Cir.1984) (when defense counsel had independent personal information regarding client's charge and faced potential liability for those charges, his actual conflict of interest "required withdrawal of trial counsel or disqualification by the court"). When a conflict of this nature is presented, disqualification will nearly always be the safer course given the difficulty of obtaining a knowing waiver where, in the midst of the trial, all consequences of the conflict can be only dimly perceived. Accordingly, we conclude that the district court abused its discretion in failing to disqualify trial counsel and in accepting the proffer of waiver.

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