United States v. Sutton ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
UNITED STATES OF AMERICA )
)
v. ) Criminal No. 21-0598 (PLF)
)
TERENCE SUTTON, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION AND ORDER
The United States has filed a Motion to Disqualify Counsel [Dkt. No. 34], arguing
that “an unwaivable conflict of interest is presented under D.C. Rule of Professional
Conduct 1.7(a) that requires [defense counsel’s] disqualification from this case,” because counsel
for Officer Sutton – attorneys affiliated with Hannon Law Group – also represent
Id. at 1. Although the United States contends that the alleged conflict
may not be waived, it also urges the Court not to accept any waiver if the Court concludes that
there is a waivable conflict because “the extensive nature of this conflict risks compromising the
integrity of these proceedings.” Government’s Reply in Support of Motion to Disqualify
Counsel [Dkt. No. 45] at 14. Officer Sutton, through counsel, opposes the motion and asserts
that “[t]here is no conflict, because the interests of and Officer Sutton remain aligned.”
Opposition to Government’s Motion to Disqualify Counsel (“Def. Opp.”) [Dkt. No. 43] at 11.
A hearing on the motion is scheduled to take place on November 18, 2021. Both
sides informed Chambers by email that they do not expect to call witnesses at that hearing.
Defense counsel subsequently made the following representations in their opposition brief:
[J]ust as we facilitated “conflict counsel” when the
so too have we prepared for the Court’s
inquiry if necessary in this case. Once again, agrees with the
assessment of HANNON LAW GROUP; yet, is consulting with
Stuart Fisk Johnson on this newly raised conflict issue. Similarly,
Officer Sutton agrees with our assessment; yet, he too has consulted
with attorney Carmen D. Hernandez. Should the Court believe a
personal inquiry of Officer Sutton and is required, they shall
be available to participate in that process with the advice of conflict
counsel.
Def. Opp. at 12. In a subsequent filing concerning a different motion, defense counsel further
represented:
[B]oth Officer Sutton and have consulted with independent
counsel regarding the issues raised by the Government. If required
by the Court, both are prepared to confirm to the Court their
knowing and voluntary belief informed by consultation with
independent counsel that no conflict exists between them in
connection with ; that they have both
waived their rights of confidentiality vis a vis one another, to the
extent that either has communicated confidential information to
attorneys with HANNON LAW GROUP; and, they wish to proceed
with HANNON LAW GROUP as their chosen counsel.
Officer Sutton’s Reply to Government’s Opposition to his Motion to Modify the Pleading
Schedule [Dkt. No. 49] at 2. The implication of these representations is that defense counsel
believe that Rule 1.7(c) of the D.C. Rules of Professional conduct controls, rather than
Rule 1.7(a), as the United States contends.
The Court solicits the views of the United States concerning these representations,
their relevance to the issues raised in the motion to disqualify, and any implications they have for
the hearing currently scheduled to take place on November 18, 2021. The Court is considering
whether it should convert the motions hearing scheduled for November 18 into an evidentiary
hearing to explore the possibility of waiver by Officer Sutton and Alternatively, the Court
would address the existence and nature of any conflict at the hearing on November 18 but would
2
not hear from any witnesses. Then, if appropriate in view of the information and arguments
presented at the November 18 hearing, the Court would schedule an evidentiary hearing
thereafter, at which Mr. Sutton, , and conflicts counsel could be present to address the issues
related to any possible waiver and respond to inquiries from the Court.
In light of the foregoing, it is hereby
ORDERED that on or before November 9, 2021, the United States shall file a
surreply to its Motion to Disqualify Counsel [Dkt. No. 34], informing the Court of its position as
to the relevance of defense counsel’s representations concerning Officer Sutton and ’s
consultations with conflict counsel and any possible waiver; and it is
FURTHER ORDERED that in its surreply, the United States is directed to opine
on whether the Court should alter the format of the motions hearing currently scheduled for
November 18, 2021 as described in this order, or in some other manner that the United States
may propose.
SO ORDERED.
____/s/____________________
PAUL L. FRIEDMAN
United States District Judge
DATE: November 4, 2021
3