WDVA: Counsel disqualified for past representation of key witness

Despite informed consent from both clients, a defendant’s attorney was disqualified from representing her on a drug charge because he had previously represented a material witness for the government.

Background

In a prior criminal drug prosecution, Defendant Lauren Hoback’s defense counsel, Christopher Kowalczuk represented Robert Taylor. Taylor pleaded guilty, and that case is now closed. But, under the theory of the present cased espoused by the government, Taylor is a cooperating, unindicted co-conspirator and a material witness against Hoback.

After independent discussions with Kowalczuk, both Taylor and Hoback consented to his representation of Hoback. Kowalczuk argues that, although both representations involved drugs, the transactions were not related. The government expressed its intention to leave the issue of disqualification to the discretion of the court.

Disqualification

In this case, the disqualification analysis properly begins with the Sixth Amendment, which guarantees defendants the right to a lawyer not encumbered by actual or serious potential for conflict. Under the Virginia Rules of Professional Conduct, when a lawyer has previously represented Client A, he may not represent Client B in a substantially related matter in which Client A’s interests are materially adverse to the interests of Client B unless both the present and former client consent.

Here, there is at minimum a serious potential for conflict of interest. Kowalczuk formed an attorney-client relationship with Taylor, the interests of Taylor and Hoback are materially adverse, and the past and present representations are substantially related. The United States intends to call Taylor as a material witness in Hoback’s trial. Although Kowalczuk does not recall his conversation with Taylor, the court must presume that confidential information was conveyed. Because such information could very well be relevant to the proceedings against Hoback, the court’s concern is that Kowalczuk would be placed in a position to choose between “pulling punches” on cross-examination (to Hoback’s detriment) and undermining the admissibility, credibility, and weight of Taylor’s testimony.

While the court accepts Kowalczuk’s explanation that he provided full disclosure to both Taylor and Hoback, the court must consider whether the conflict in this case is unwaivable. Ultimately, confidentiality here conflicts with the right to choose counsel. When such a conflict occurs, confidentiality prevails. It is not possible to determine what Taylor conveyed to Kowalczuk, or vice versa, because the law presumes that confidential information was conveyed. Thus, the waivers are not sufficient to remedy the serious potential for conflict of interest here.

The court does not doubt that Kowalczuk has made every effort to ensure that he was acting in an ethical manner. Even so, it is not for the court to consider whether counsel’s motives are pure or corrupt; in either case the disqualification is required.

Defense counsel is hereby disqualified.

United States v. Hoback, Case No. 7:17cr66, July 31, 2018. WDVA at Roanoke (Dillon). VLW No. 018-3-333, 6 pp.