Disqualification of an Attorney Representing Multiple Witnesses Before a Grand Jury: Legal Ethics and the Stonewall Defense

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Prompted by the increasing recognition that certain economic and political conduct (such as consumer fraud, environmental pollution, and questionable campaign financing practices) has a profound effect on society, lawmakers have recently labelled as criminal "a whole range of political and business activities which, until recently, had been a more or less accepted part of American life."I Armed with both new statutes and a new aggressiveness in the enforcement of pre-existing statutes, 2 federal and state prosecutors have during the past ten years compiled an impressive record in the investigation and prosecution of white collar crime, organized crime and official corruption.3 Many of these crimes pose special problems of detection and evidence-gathering, because the only available witnesses are either themselves guilty of criminal conduct4 or unwilling to report a violation for fear of retribution. 5 These and other difficulties6 make such crimes uniquely suited for investigation by a grand jury7 with its ability to compel testimony from unwilling witnesses,8 often under grants of immunity from prosecution.9

The ability of prosecutors to investigate these crimes is seriously jeopardized in many of these cases by the representation by one lawyer of several witnesses with actual or potential conflicts of interest.' 0 Such multiple representation of both "target"" and "nontarget"' 2 witnesses may facilitate the efforts of some witnesses to frustrate the objectives of an investigation-to "stonewall it"13 -by ensuring that the grand jury has little or no opportunity to obtain the cooperation of one or more of the witnesses against the others. 14 Because the success of a grand jury investigation frequently depends on the ability of the prosecutor to secure such cooperation, the investigative obstacle posed by multiple representation is often substantial.

Recent federal and state court decisions suggest that the obstacle posed by multiple representation in a grand jury investigation might be removed through disqualification of the common attorney.' 6 There is no consensus, however, regarding the standards for disqualification.' 7 For example, the courts disagree as to whether the conflict of interests among the witnesses must be actual or merely potential, 18 whether a waiver by the witnesses of their right to separate representation will preclude disqualification,' 9 and, finally, whether the investigative obstacle posed by multiple representation must be specifically demonstrated or may be merely assumed to exist. 20

The failure of the courts to agree on standards for attorney disqualification is attributable in the first instance to both disagreement and confusion regarding the theoretical justification for an order depriving a grand jury witness of his chosen counsel. The decisions suggest four possible rationales for the disqualifica- tion of a common attorney: first, the protection of individual clients with conflicting interests; 2' second, the preservation of the integrity of the grand jury investigation; 22 third, the elimination of obstacles to the success of the grand jury investigation; 23 and fourth, the prevention of any appearance of impropriety. 24 For reasons set forth below, 25 this Article concludes that the third and fourth rationales are unsound and that the first two rationales offer the only appropriate justifications for attorney disqualification. This conclusion is, hbwever, but a first step toward resolving the conflicts among the various judicial responses to the multiple representation obstacle. It leaves unanswered certain fundamental questions raised by the recent grand jury disqualification decisions. These questions concern both the ethics of multiple representation and the stonewall defense and, in addition, the appropriate standards for disqualification absent proof of ethical misconduct on the part of the common attorney. The ethical issues simply stated are, first, whether the multiple representation of grand jury witnesses with conflicting interests is necessarily inadequate under ethical standards relating to the protection of clients, 26 and second, whether the stonewall defense is necessarily prejudicial to the administration of justice under ethical standards relating to the preservation of the integrity of judicial proceedings. 27

If the multiple representation of clients with conflicting interests and the promotion of a stonewall defense on their behalf were clearly unethical, then disqualification of the common attorney probably would be warranted as necessary to protect both the clients themselves and the public interest in the integrity of a grand jury investigation. 28 If, however, the representation is not necessarily unethical, then an additional question arises whether, in the absence of proof of actual misconduct, disqualification might be warranted as a prophylactic measure to prevent potential harm to either the client's or the public's interests, such as the coercion of nontarget witnesses on behalf of targets or the knowing use of perjured testimony.29

The purpose of this Article is to explore the ethical issues raised by the multiple representation of grand jury witnesses and to suggest possible standards for the disqualification of a common attorney that take into account both the legitimate interests of witnesses who choose to be represented by the same attorney and the public interest in preserving the integrity of a grand jury investigation. Part I describes the nature of the obstacle that multiple representation poses to the success of a grand jury investigation, the variety of judicial responses to this obstacle, and the specific ethical and disqualification issues raised by these responses. Part II addresses the ethical standards relating to the adequacy of the representation of conflicting interests. It concludes that these standards are satisfied once the witnesses have been fully informed of the potential dangers and nonetheless give their unequivocal and voluntary consent to the continued representation. Part III addresses the ethical standards relating to an attorney's obligation not to impede the administration of justice and concludes that, with certain exceptions, virtually all of the components of the stonewall defense are ethically permissible. Part IV then considers possible standards for attorney disqualification in light of the conclusions reached in Parts II and III. It suggests that in determining whether a witness's purported consent is both informed and voluntary, a court should first consider the reasonable likelihood that one witness can incriminate another and then other factors, such as the coercion inherent in employer-employee relationships, that raise serious doubts about the voluntariness of the witness's consent. It also suggests that disqualification might be warranted to prevent clearly unethical conduct contrary to the administration of justice, such as the facilitation or knowing use of perjury, but only after one of the witnesses has been formally immunized and ordered to testify on pain of a contempt citation, since it is only then that the value of the presumed benefits of disqualification clearly outweighs the potential harm to the witnesses.


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