United States District Court, D. New Mexico
KHALSA, UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on the Government's Sealed
Motion to Disqualify Defense Counsel. (Doc. 88). By an Order
of Reference (Doc. 100), the presiding judge referred the
issue raised by the United States in its motion of whether
Mr. Salazar should be disqualified from representing Mr.
Wollweber based on his purported violation of the Rules of
Professional Conduct and whether his own self-interest in
avoiding allegations of unethical conduct create an actual or
potential conflict of interest that will compromise his
representation of Mr. Wollweber. The Court held a hearing on
October 2, 2018. Having heard from the parties and counsel,
reviewed the parties' submissions, the relevant law, the
recently filed motions in limine (Docs. 119, 121),
Mr. Wollweber's written Waiver of Conflict of Interest
and Potential Conflict of Interest (Doc. 122), and being
otherwise fully advised, the Court concludes that the motion
is not well taken, and is DENIED.
Sixth Amendment to the Constitution guarantees a defendant
who does not require appointed counsel the right to choose
who will represent him. United States v.
Gonzalez-Lopez, 548 U.S. 140, 144 (2006). The Sixth
Amendment to the Constitution also entitles a defendant in a
criminal case to representation that is free from conflicts
of interest. United States v. Gallegos, 108 F.3d
1272, 1280 (10th Cir. 1997). “It is well settled that a
defendant may waive his right to conflict-free counsel”
provided that such waiver is knowing and voluntary.
United States v. Gallegos, 108 F.3d 1272, 1281 (10th
Cir. 1997) (“The waiver of a constitutional right must
not only be voluntary, but must be a knowing, intelligent act
done with sufficient awareness of the relevant circumstances
and likely consequences.”). “Federal 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[,
]” “where a court justifiably finds an actual
conflict of interest . . . it may decline a proffer of
waiver[.]” Wheat v. United States, 486 U.S.
153, 160, 162 (1988).
conflict of interest may be “actual” or
“potential.” “An actual conflict for Sixth
Amendment purposes is a conflict of interest that adversely
affects counsel's performance.” Mickens v.
Taylor, 535 U.S. 162, 172 n.5 (2002). Such a conflict
exists if “a specific and seemingly valid or genuine
alternative strategy or tactic was available to defense
counsel, but it was inherently in conflict with his duties to
others or his own personal interests.”
United States v. Bowie, 892 F.2d 1494, 1500 (10th
Cir. 1990) (emphasis added). “An attorney has a
potential conflict of interest if the interests of the
defendant may place the attorney under inconsistent duties at
some time in the future.” United States v.
Perez, 325 F.3d 115, 125 (2d Cir. 2003). Based on the
evidence before it, the Court cannot, and does not find, that
Mr. Salazar has been operating under an actual non-waivable
conflict of interest. Both the Court and appointed conflict
counsel, Mr. Jerry Walz, have discussed with Mr. Wollweber
the relevant circumstances in which Mr. Salazar's
potential conflict of interest could ripen into an actual
conflict of interest, and the likely consequences of such an
actual conflict. Being fully informed in the circumstances of
his case and of Mr. Salazar's conduct as his counsel, Mr.
Wollweber has expressed both in open court and in his written
waiver, an understanding of the scope of alleged actual and
potential conflicts and his continued and unwavering wish to
have Mr. Salazar remain as his counsel of choice. Mr.
Wollweber, at the October 2, 2018, hearing, and in his
written waiver, has made an intelligent, informed, knowing
and voluntary waiver of alleged actual and potential
conflicts of interest. After careful consideration of the
circumstances, the Court accepts Mr. Wollweber's knowing
and voluntary waiver.
to disqualify are governed by the ethical rules announced by
the national profession and considered “in light of the
public interest and the litigants' rights. Cole v.
Ruidoso Mun. Sch., 43 F.3d 1373, 1383 (10th
Cir. 1994). Where a motion to disqualify is premised on a
violation of the ethical rules that bind an attorney,
[t]he court should disqualify an attorney only when it
determines, on the facts of the particular case, that
disqualification is an appropriate means of enforcing the
applicable disciplinary rule. It should consider the ends
that the disciplinary rule is designed to serve and any
countervailing policies, such as permitting a litigant to
retain the counsel of his choice and enabling attorneys to
practice without excessive restrictions.
United States v. Miller, 624 F.2d 1198, 1201 (3d
Cir. 1980); see Rubio v. BNSF Ry. Co., 548 F.Supp.2d
1220, 1223-24 (D.N.M. 2008) (“[D]isqualification should
be ordered if it will serve the purposes behind the ethical
rule in question”; this inquiry “requires
balancing society's interest in ethical conduct,
litigants right to choose their counsel, and the hardship
that disqualification would impose on the parties and the
entire judicial process.”).
October 2, 2018, the Government had not reported Mr.
Salazar's purported ethical violations to the New Mexico
Disciplinary Board, and the Court determined that the record
was insufficient to conclusively establish that Mr. Salazar
violated the Rules of Professional Conduct. Although Mr.
Salazar's unprofessional and dilatory conduct in this
case may warrant additional sanctions down the road,
Court declines to conduct further inquiry to enable it to
determine definitively at this time whether Mr. Salazar
violated the Rules of Professional Conduct, because even were
the Court to assume that he did, those violations under the
totality of circumstances in this case would not lead the
Court to impose the extreme sanction the Government seeks
here. The Court has carefully considered the alleged ethical
violations; the New Mexico Rules of Professional Conduct; the
impact of Mr. Salazar's conduct on Mr. Wollweber, the
witness, and the Government; the asserted actual and
potential conflict of interest; and numerous circumstances in
which a potential conflict could ripen into an actual
conflict leading up to and during trial. The Court has also
considered the ends that the applicable disciplinary rules
are designed to serve and whether they are best met with
disqualification of Mr. Salazar as Mr. Wollweber's
counsel. Considering the totality of circumstances in this
case, and balancing society's interest in ethical
conduct, Mr. Wollweber's constitutional rights, including
his right to choose his counsel, and the hardship that
disqualification would impose on Mr. Wollweber at this
juncture, the Court finds that disqualification of Mr.
Salazar is not an appropriate means of enforcing the
applicable Rules of Professional conduct here and does not
otherwise serve the ends of justice. For these, and the
reasons stated on the record at the hearing on October 2,
2018, the Government's motion is DENIED.
IS SO ORDERED.
Further inquiry into Mr. Salazar's
purported ethical violations, if any, is appropriately the
purview of the New ...