MLM Counties News. Notices. Need-to-know Information.
The 8th U.S. Circuit Court of Appeals upheld a decision to disqualify an attorney from representing three clients in grand jury proceedings.
According to the opinion, written by Judge Steven M. Colloton and released Monday, the decision stemmed from a concern that the attorney, listed only as John Doe, could effectively counsel his clients. The case was based in the U.S. District Court’s Eastern District of Missouri in St. Louis.
The attorney petitioned for a writ directing the district court to set aside an order that disqualified him from representing three witnesses in a grand jury proceeding and for a hearing to address the matter. He said each client is aware that he represents the others and each of the clients has signed a conflicts waiver.
The attorney wrote that a government attorney advised him in July that she believed he had a conflict of interest and that she would arrange a hearing before the district court to address it. In September, he received a letter stating he was disqualified from representing all three clients in any grand jury proceeding pending before the court.
He eventually learned of an ex parte submission to the court by the government, which resulted in the decision.
In his petition, the attorney argued that the Sixth Amendment includes the right to counsel for the accused and to retain counsel of the accused’s choice. He also complained about how the government sought the disqualification, arguing he and his clients were entitled to a hearing.
Colloton wrote that the panel examined the order granted by an ex parte motion by the government to disqualify the attorney based on an unwaivable conflict of interest. The court, reviewing confidential information from grand jury proceedings, found the attorney could not effectively advocate for each client concurrently.
Colloton, along with Judges Roger L. Wollman and Raymond W. Gruender, affirmed the district court’s decision.
On the issue of the hearing, Colloton wrote that the attorney’s clients do not have the right to counsel as potential grand jury witnesses, because none have been accused of a crime.
He also wrote that the district court’s ruling on the disqualification was not a clear abuse of discretion and that a hearing to consider possible waivers would require a “deleterious breach of grand jury secrecy.”
“We cannot say that the government’s interest in secrecy here is minimal … the information at issue, in our view, is central to a sensitive ongoing criminal investigation,” Colloton wrote. “Ex parte proceedings are disfavored, but the district court’s approach here was justified by the interest in maintaining grand jury secrecy.”
Colloton also noted that the panel shared the concern of the district court, “that jointly-represented witnesses should not be able to gain information about confidential grand jury proceedings through a hearing on their attorney’s conflict of interest.”
The case is In re: Grand Jury Process, John Doe, 15-3603.
