The opinion of the court was delivered by: Judge Sara Lioi
This matter is presently before the Court on the government's Motion to Inquire into Conflict. (Doc. No. 91.) One of defendant McMichael's attorneys, Leslie W. Jacobs, is himself a defendant in a criminal case pending before another judge on this Court. In light of this, the government, while not taking a position on the issue, has requested the Court to determine whether attorney Jacobs can properly continue to serve as counsel for McMichael. The Court held a hearing on this issue November 9, 2011.
McMichael was indicted April 27, 2011, on one count of conspiracy to commit bribery in federally funded programs, one count of aiding and abetting Hobbs Act extortion, and one count of conspiracy to commit wire fraud and honest services fraud. McMichael has been represented by the same two attorneys throughout the pendency of this case: Leslie W. Jacobs and John R. Mitchell, both partners at the firm of Thompson Hine LLP. In addition to Jacobs and Mitchell, Matthew Ridings, an associate attorney in Thompson Hine's Competition, Antitrust, and White Collar Crime group, as well as a multitude of support staff also work on the case.*fn1 On October 13, 2011, an information was instituted against attorney Jacobs alleging that he knowingly falsified his personal federal income tax returns for the years 2004 through 2007, in violation of 26 U.S.C. § 7206(1). Jacobs pleaded guilty to the information on November 2, 2011. He is scheduled to be sentenced on January 17, 2012. Meanwhile, trial of the case at bar-the case against McMichael-is scheduled to commence with jury selection on December 2, 2011 and opening statements on December 5, 2011.
In situations like this one, a court is faced with the difficult task of balancing two competing sets of interests. The court must ensure that the defendant is provided with effective assistance of counsel and must protect the integrity of the judicial system, being careful to avoid both the appearance and reality of impropriety. At the same time, the court must diligently guard the defendant's right to choose his own counsel and must avoid the appearance or reality of unwarranted interference with the attorney-client relationship. United States v. Manuel Ramos, 350 F. Supp. 2d 413, 415 (S.D.N.Y. 2004); see also Serra v. Michigan Dept. of Corrections, 4 F.3d 1348, 1352 (6th Cir. 1993) (quoting Wheat v. United States, 486 U.S. 153, 157 (1988)) ("When a criminal defendant seeks to be represented by retained counsel and that representation may result in a conflict of interest, the district court must balance 'two Sixth Amendment rights: (1) the qualified right to be represented by counsel of one's choice, and (2) the right to a defense conducted by an attorney who is free of conflicts of interest.'").
A "District Court must recognize a presumption in favor of petitioner's counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict. The evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court." Wheat v. United States, 486 U.S. 153, 164 (1988).
It is with this framework in mind that the Court turns to analysis of the case at bar. These attorney conflict situations are inherently difficult, as weighty interests are present on both sides. But in this case, the Court is convinced that disqualification is necessary, both to ensure that Mr. Michael receives effective assistance of counsel and to preserve the integrity of this Court and the broader federal judiciary.
A. McMichael's Right to Effective Assistance
On July 6, 2011, McMichael executed a waiver of any conflict arising out of the government's investigation of Jacobs. (Doc. No. 34.) In the waiver, McMichael affirmed his knowledge of the pending investigation of Jacobs and represented that he understood the nature of the potential conflict. In his decision on whether to execute the waiver, however, McMichael was advised by Jacobs himself.
After the information was instituted against Jacobs and after the government filed its Motion to Inquire into Conflict, McMichael executed a second waiver. This time around, McMichael retained attorney James Ervin, Jr., as independent counsel for the purpose of advising McMichael as to the propriety of agreeing to the second waiver. Both Attorney Ervin and McMichael himself have represented to the Court that Ervin has thoroughly discussed with McMichael the contents of this second waiver and that McMichael is fully aware-to the extent anyone can be-of the risks created by his decision to waive any potential conflicts relating to the separate charge against Jacobs. At this juncture, the Court has no reason to believe that McMichael's waiver of the conflict was anything short of knowing and voluntary.
But the fact that a defendant's waiver appears to be knowing and voluntary does not automatically end the Court's inquiry on this point. In Wheat, the Supreme Court stated that "district court[s] must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses." 486 U.S. at 163. Thus, even when a defendant's waiver is knowing and voluntary, the court may refuse to accept the waiver if it believes the conflict nevertheless runs too great a danger of inhibiting the effectiveness of a defendant's defense. The court retains this discretion because, "while the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Id.
This is one of those "rare cases" referenced by the Supreme Court in Wheat where an actual conflict is in fact present before trial. Both McMichael and Jacobs are being prosecuted by the same United States Attorney's Office, and where both a defendant and his attorney are under investigation by the same prosecuting authority, an actual conflict is present. United States v. McLain, 823 F.2d 1457, 1463--64 (11th Cir. 1987) (finding actual conflict of interest between defendant and attorney where both were being investigated by the same United States Attorney's Office); cf. Taylor v. United States, 985 F.2d 844, 846 (6th Cir. 1993) (refusing to find an actual conflict and distinguishing the case from McLain because the defendant was prosecuted by federal authorities and the charges against his attorney were brought by the State).
Under these circumstances, there is a serious danger that allowing Jacobs to continue in the representation will cause severe prejudice to McMichael, McMichael's conflict waiver notwithstanding. Jacobs's pending tax fraud case impedes Jacobs's ability to provide McMichael with effective assistance. Whether Jacobs is conscious of it or not, his judgment as it relates to McMichael's case is undoubtedly impaired by the circumstances of his own tax fraud case. Evidence that McMichael's case is affecting Jacobs's conduct in Jacobs's own case has already surfaced. When questioned by this Court at the hearing on the McMichael conflict, Jacobs admitted, as reported in a Plain Dealer article dated November 2, 2011, (and cited below) that he was motivated to write a letter regarding his tax fraud case (a letter written to family, friends, and professional associates that called the government's conduct in that case into question) by considerations as to how that case might affect McMichael's case. Jacobs's statement to the Court involved an instance of McMichael's case affecting Jacobs's judgment in his own tax fraud ...