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United States v. Chalhoub

United States District Court, E.D. Kentucky, Southern Division, London

October 13, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ANIS CHALHOUB, M.D., Defendant.

          MEMORANDUM OPINION & ORDER

          GREGORY F VAN TATENHOVE UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Government's Second Motion for Disqualification. [R. 45.] This Court previously disqualified Mr. Wicker of Dressman Benzinger Lavelle PSC from representing Dr. Chalhoub. [R. 39.] The Government now moves to disqualify Ms. Nicole Elver and the entire firm of Dressman Benzinger LaVelle PSC (DBL) from representing Dr. Chalhoub. For the reasons stated below and because Ms. Elver implemented an effective and timely screen, she and DBL are not disqualified from representing Dr. Chalhoub and the Government's Motion to Disqualify is DENIED. [R. 45.]

         I

         This Second Motion for Disqualification of Nicole Elver and the entire firm of DBL stems from the same factual basis as the original Motion to Disqualify Kent Wicker. The facts from that opinion are incorporated by reference here. [See R. 39.]

         Mr. Wicker was approached in mid-April 2017 to represent Dr. Chalhoub. [R. 30 at 4.] Mr. Wicker and Ms. Nicole Elver entered their appearance on the matter on May 1, 2017. [R. 23.] Raising issues that Mr. Wicker had previously represented CHI/SJHS, Dr. Chalhoub's former employer, the Government orally moved to disqualify Mr. Wicker from representing Dr. Chalhoub on May 26, 2017 during a teleconference. [R. 29.]

         The details of Mr. Wicker's disqualification are detailed in this Court's prior Memorandum Opinion & Order. [R. 39.] Mr. Reinberg, counsel for SJHS, who submitted an affidavit petitioning the Court to disqualify Mr. Wicker indicated that Mr. Wicker was retained as legal counsel for CHI/SJHS “until at least May 23, 2013.” [R. 29-1 at 7.] In contrast, Ms. Elver has never been counsel to CHI nor SJHS. In fact, she did not join DBL until April 1, 2014, after Mr. Wicker's representation ended. [R. 48-1 at 1.] Ms. Elver attests that she was not aware that Mr. Wicker had represented CHI/SJHS until the issue “arose in the context of the representation of Dr. Chalhoub.” [Id. at 2.] The only communication Ms. Elver has had with CHI/SJHS counsel occured on June 15, 2017. Then, Ms. Elver sent notice to Mr. Reinberg that she was entering an appearance on behalf of Dr. Chalhoub. [Id.] Ms. Elver states that, “Mr. Wicker did not share any confidential or attorney client communications relating to CHI/SJHS with [her] while [she] was representing Dr. Chalhoub.” [Id.]

         This Court entered a Memorandum Opinion and Order on June 13, 2017, holding that Mr. Wicker is disqualified from representing the Defendant pursuant to the Kentucky Supreme Court Rule 1.9. [R. 39.] Defendant filed a Motion for Reconsideration on June 22, 2017. [R. 44.] That Motion for Reconsideration was denied. [R. 51.]

         Upon the Court's opinion disqualifying Mr. Wicker, Ms. Elver, at the request of Dr. Chalhoub, continued her representation by instituting a screen and alerting counsel for CHI/SJHS. [R. 48-1 at 3.] Ms. Elver directed the IT department to “restrict Mr. Wicker's access to the electronic case file” and to delete any files on his personal drive that were associated with Dr. Chalhoub's case. [Id.] She directed her assistants to remove paper files from Mr. Wicker's office and lock them in a file cabinet. [Id.] She sent an email to DBL's Louisville office informing them of the screen and ordering them to direct communications regarding the case to her. [Id.] Ms. Elver ensured that Mr. Wicker's access to future electronic documents is restricted and created a new billing number under her name so that Mr. Wicker can no longer access the billing records for the case against Dr. Chalhoub. [Id.] Finally, Ms. Elver emailed counsel for CHI/SJHS, Mr. Reinberg, and alerted him to her representation of Dr. Chalhoub. [Id. at 4.]

         Between May 26, 2017, and June 13, 2017, Mr. Wicker was not screened from this case and, presumably, continued working on his representation of the Defendant with Ms. Elver during that time. After learning that Ms. Elver intended to stay on the case, the Government moved to disqualify Ms. Elver and the entire DBL firm. [R. 39.]

         II

         “The Sixth Amendment right to assistance of counsel is a fundamental right so essential to a fair trial that it is part of the Due Process Clause of the Fourteenth Amendment and thus applicable to the states.” Serra v. Mich. Dep't of Corr., 4 F.3d 1348, 1351 (6th Cir. 1993) (quoting Gideon v. Wainwright, 372 U.S. 335, 344 (1963)). However, the Sixth Amendment does not provide a right to a specific attorney and this Court has “an independent interest in ensuring that criminal trials are conducted within [relevant] ethical standards.” Serra, 4 F.3d at 1353 (6th Cir. 1993); see also United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006). The Supreme Court has affirmed that trial courts “must be allowed substantial latitude to evaluate in the light of their informed judgment the facts and circumstances of each case, including any attempt by the Government to ‘manufacture' a conflict to prevent a defendant from obtaining particularly able counsel.” Wheat v. United States, 486 U.S. 153, 153 (1988); see also Gonzalez-Lopez, 548 U.S. at 152.

         When evaluating claims for disqualification, the court should place a presumption in favor of Defendant'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, ” even if the Defendant wishes to waive the conflict. United States v. Hall, 200 F.3d 962, 965 (6th Cir. 2000); see also United States v. Matsa, 540 F.Appx. 520, 523 (6th Cir. 2013), Wheat, 486 U.S. at 153. Even where a party waives a potential conflict of interest, this “does not bind the courts.” Hall, 200 F.3d at 965. When a motion for disqualification comes before the Court, the Court must be mindful of the ability of parties to use this as a “potent weapon;” and should carefully balance “competing public policy interests of preserving client confidences and of permitting a party to retain counsel of his choice.” Manning v. Waring, Cox, James, Sklar & Allen, 849 F.2d 222, 224 (6th Cir. 1988); see also Serra, 4 F.3d at 1352 (6th Cir. 1993).

         Both parties agree that Rule 1.10(d) of the Kentucky Rules of Professional Conduct govern in this case of imputed conflict, which holds:

(d) A firm is not disqualified from representation of a client if the only basis for disqualification is representation of a former client by a lawyer presently associated with the firm, sufficient to cause that ...

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