United States of America v. Patrick J. Cunningham and John J. Sweeney
672 F.2d 1064 (1982)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A criminal defendant's Sixth Amendment right to counsel of choice, while not absolute, is a right of constitutional dimension that must be balanced against the need to preserve ethical standards. This right should generally be honored when the defendant makes a knowing and intelligent waiver of any conflict, and the former client involved in the conflict does not seek the attorney's disqualification.
Facts:
- Patrick J. Cunningham and John J. Sweeney were law partners under investigation by the IRS for tax evasion and other offenses.
- Cunningham had been represented since 1975 by attorney Michael E. Tigar in several investigations.
- John Spain, a friend of Cunningham, told IRS agents in 1978 that he had paid Cunningham $2,000 in cash for legal services.
- In 1980, Spain testified to a grand jury that he had not made such a statement to the IRS, which resulted in Spain being indicted for perjury.
- After his indictment, Spain retained Tigar for preliminary defense work, although another lawyer, Gustave Newman, represented Spain at trial.
- During Spain's perjury trial, a hearing was held to determine if a memo supporting Spain had been recently fabricated and if the typewriter ribbon had been tampered with.
- Gay McCreery, a receptionist at the law firm, testified at the hearing about the typewriter.
- Before McCreery testified a second time, Sweeney's lawyer, Michael Kennedy, allegedly told her that subpoenaed envelopes were 'safe' and that 'if the government wanted the envelopes they would have to find them.'
Procedural Posture:
- The United States government indicted Patrick J. Cunningham and John J. Sweeney in the U.S. District Court for the Southern District of New York.
- Michael Tigar appeared as counsel for Cunningham, and Michael Kennedy appeared as counsel for Sweeney.
- The government filed a motion in the district court to disqualify both Tigar and Kennedy from representing the defendants.
- The district court granted the government's motion, disqualifying Tigar from any further representation and disqualifying Kennedy from serving as trial counsel.
- Cunningham and Sweeney appealed the district court's disqualification order to the U.S. Court of Appeals for the Second Circuit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the Sixth Amendment right to counsel of choice require a court to deny the government's motion to disqualify a defendant's chosen attorney due to a potential conflict of interest arising from the attorney's prior representation of a government witness or from the possibility that the attorney ought to be called as a witness at trial?
Opinions:
Majority - Kearse, Circuit Judge
Yes, as to the conflict from prior representation (Tigar), but it depends on the admissibility of evidence as to the advocate-witness issue (Kennedy). A criminal defendant's Sixth Amendment right to counsel of choice must be balanced against the need for professional responsibility, and this constitutional right is given great weight. Regarding Cunningham's counsel, Tigar, the balance tips decidedly in favor of honoring his retention. Cunningham's interest is particularly strong due to their long-standing, successful attorney-client relationship. The government's interest is weak because the former client, Spain, did not move for disqualification, and Cunningham made a knowing and intelligent waiver of the conflict. The court distinguished prior cases where disqualification was upheld because they either involved civil matters without Sixth Amendment implications or were motions brought by the former client. The court concluded that Spain's privilege could be protected through less drastic means, such as limiting the scope of cross-examination. Regarding Sweeney's counsel, Kennedy, the government's interest is potentially compelling. If witness Gay McCreery testifies about her conversation with Kennedy, Kennedy 'ought to be a witness' to rebut or explain her testimony. For Kennedy to act as trial counsel would effectively make him an 'unsworn witness,' undermining the integrity of the trial and violating the advocate-witness rule. However, the disqualification is premature because the district court has not yet determined if McCreery's testimony is admissible. Therefore, the case must be remanded for a pretrial hearing on the admissibility of that testimony before Kennedy can be disqualified as trial counsel.
Analysis:
This decision significantly strengthens a criminal defendant's Sixth Amendment right to counsel of choice, establishing a high bar for prosecutorial motions to disqualify. It clarifies that a defendant's knowing waiver of a conflict, combined with the former client's failure to object, will likely defeat a disqualification motion based on prior representation. This holding limits the government's ability to strategically weaken the defense by removing long-term, trusted counsel. Furthermore, the court's handling of the advocate-witness issue creates a procedural safeguard, requiring a definitive ruling on the admissibility of the underlying testimony before depriving a defendant of their chosen counsel, thereby preventing disqualification based on mere possibility.
