United States v. Wayne Bellille

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 19-3544
________________
UNITED STATES OF AMERICA
v.
WAYNE BELLILLE a/k/a Wizo
ALEXANDER GOLUBITSKY,
Appellant
________________
Appeal from the
District of the Virgin Islands
(D.C. Criminal Action No. 3-18-cr-00030-011)
District Judge: Honorable Curtis V. Gomez
________________
Argued April 8, 2020
Before: AMBRO, GREENAWAY, JR.,
and BIBAS, Circuit Judges
(Opinion filed: June 16, 2020)
Alexander Golubitsky (Argued)
DiRuzzo & Company
6501 Red Hook Plaza, Suite 201
St. Thomas, VI 00802
Counsel for Appellant
Gretchen C.F. Shappert
United States Attorney
Meredith J. Edwards (Argued)
George A. Massucco-LaTaif
Alessandra P. Serano
Office of United States Attorney
5500 Veterans Drive
United States Courthouse, Suite 260
St. Thomas, VI 00802
Counsel for Appellee
________________
OPINION OF THE COURT
________________
AMBRO, Circuit Judge
Alexander Golubitsky, Esq., appeals the District
Court’s denial of his motion to withdraw as appointed criminal
counsel due to a conflict of interest. Though it is not a final
order, we nonetheless have appellate jurisdiction to hear this
interlocutory appeal and review the order denying the motion
to withdraw under the collateral order doctrine first announced
in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541
(1949). On the merits, we vacate the District Court’s order
2
denying the motion to withdraw and remand for further fact-
finding.
I. FACTUAL AND PROCEDURAL BACKGROUND
Golubitsky is a former panelist on the Criminal Justice
Act (“CJA”) panel in the District Court of the Virgin Islands.
He is currently admitted to practice before that Court. Per its
CJA plan, on March 25, 2019, Golubitsky was appointed
counsel for Wayne Bellille, an indigent defendant in a large
multi-defendant RICO prosecution.
Golubitsky moved to withdraw shortly after. He argued
that he was no longer a member of the CJA panel and that he
had moved to an in-house counsel role, was contractually
barred from taking on the representation, and lacked the ability
and resources to represent Bellille. Golubitsky thereafter
entered an appearance for Bellille and attended a hearing on
the motion to withdraw. The District Court denied his motion.
On September 11, 2019, Golubitsky and Joseph
DiRuzzo III purport to have started an of-counsel relationship
at the law firm of DiRuzzo & Company. On September 20,
Golubitsky filed an ex parte emergency motion to withdraw as
Bellille’s counsel. He stated that he had recently associated on
an “of counsel” basis with the DiRuzzo law firm and had
learned during a conflicts check that the firm’s principal,
DiRuzzo, represented a cooperating witness, Aracelis Ayala,
who was likely to testify against Bellille in his trial. Golubitsky
argued that, because he would have to cross-examine Ayala at
trial, this created a conflict of interest under local court rules
and the Virgin Islands Rules of Professional Conduct.
The District Court held a hearing to consider the motion
on October 30 and 31, 2019. DiRuzzo attended the second day.
During the hearing, the Court inquired as to the nature of the
3
association between Golubitsky and DiRuzzo’s firm.
Golubitsky explained that he was “on [the firm’s] system,”
could bill using the firm’s software, and was added to
DiRuzzo’s malpractice insurance. J.A. 108. DiRuzzo
confirmed the same. Golubitsky, however, continued to work
full-time as in-house counsel at a Virgin Islands-based
company, Brisa Max Holdings VI, LLC (“Brisa Max”), while
working part-time for DiRuzzo’s firm, which is located in
Florida. Aside from the Bellille prosecution, DiRuzzo and
Golubitsky were litigating four matters together. The Court
inquired whether they had any involvement in the other’s work
related to Bellille’s case or whether they had shared with each
other any information about the case obtained in the course of
their respective representations. Both responded they had not.
DiRuzzo testified that he was not sure he could implement
“screening” measures in the Bellille matter but would look into
it, and Golubitsky maintained that “I don’t think that I can be
walled off from this conflict,” J.A. 109, as the DiRuzzo firm
consisted of just two attorneys aside from Golubitsky.
Golubitsky would be forced, he believed, to violate his ethical
obligations, and his client’s Sixth Amendment right to conflict-
free counsel would be violated as well.
At the end of the hearing, the District Court orally
denied Golubitsky’s motion to withdraw and ordered DiRuzzo
and Golubitsky to wall off the latter’s representation of Bellille
from DiRuzzo’s representation of Ayala. The Court
emphasized that the relationship between DiRuzzo and
Golubitsky was “part-time” and “ad hoc,” and thus a wall could
effectively be put in place to separate the representations. J.A.
141. Golubitsky appealed to us.
On March 24, 2020, well after this appeal was filed, the
District Court issued a written opinion denying Bellille’s
motion to withdraw. It reasoned that attorney conflicts are not
imputed to a law firm if the relationship between the attorney
4
and the firm is not a sufficiently close one. See United States
v. Bellille, Cr. No. 2018-30, 2020 WL 1441648, at *6–7 (D.V.I.
Mar. 24, 2020) (citing United States v. Kilpatrick, 798 F.3d
365, 375–76 (6th Cir. 2015); Hempstead Video, Inc. v. Inc. Vill.
of Valley Stream, 409 F.3d 127, 135–36 (2d Cir. 2005)). The
Court did not mention the conflict wall it had ordered the
attorneys to put in place and did not explain why it would be
necessary if there is no conflict of interest or how it should be
implemented if a conflict does exist. It noted, however, that
the Federal Public Defender and most CJA panelists in the
Virgin Islands are conflicted in the underlying criminal case
and that “the existing CJA panel is inadequate to provide
representation as required to the defendants in this matter.” Id.
at *5.
II. JURISDICTION
The District Court of the Virgin Islands had subject
matter jurisdiction under 48 U.S.C. § 1612(a) and 18 U.S.C.
§ 3231. But was its order denying Golubitsky’s second motion
to withdraw appealable to us? The Government says no, as the
final judgment rule requires that “a party must ordinarily raise
all claims of error in a single appeal following final judgment
on the merits.” Firestone Tire & Rubber Co. v. Risjord, 449
U.S. 368, 374 (1981). Golubitsky responds that we have
jurisdiction under the collateral order doctrine.
That doctrine—first announced in Cohen, 337 U.S.
541—provides that there is a “small class” of rulings that,
although they do not terminate the litigation, are appropriately
deemed “final” under 28 U.S.C. § 1291. Firestone, 449 U.S.
at 374; Cohen, 337 U.S. at 546. That small class is comprised
of decisions that (1) conclusively determine the disputed
issues, (2) resolve important issues separate from the merits,
and (3) are effectively unreviewable on appeal from the final
5
judgment in the underlying action. See, e.g., Bacher v. Allstate
Ins. Co., 211 F.3d 52, 53 (3d Cir. 2000).
The Government cites Supreme Court precedent that the
collateral order doctrine does not apply to orders granting
motions for disqualification of defense counsel. See Flanagan
v. United States, 465 U.S. 259 (1984). No doubt Flanagan
concluded that “[n]othing about a disqualification order
distinguishes it from the run of pretrial judicial decisions that
affect the rights of criminal defendants yet must await
completion of trial-court proceedings for review.” Id. at 270.
And the Government correctly points out that other circuits to
address the issue have also held orders granting or denying
motions to disqualify are not subject to the collateral order
doctrine. See, e.g., United States v. Sueiro, 946 F.3d 637, 642–
43 (4th Cir. 2020); United States v. Camisa, 969 F.2d 1428,
1429 (2d Cir. 1992); United States v. Caggiano, 660 F.2d 184,
191 & n.7 (6th Cir. 1981).
However, courts have distinguished motions to
disqualify from motions to withdraw. Neither the Supreme
Court, nor any court of appeals to consider the issue, has held
that the denial of a motion to withdraw fails interlocutory
review under the collateral order doctrine in civil cases. See,
e.g., Sanford v. Maid-Rite Corp., 816 F.3d 546, 549 (8th Cir.
2016) (per curiam) (holding that denying a motion to withdraw
satisfied each of the three requirements of the doctrine because,
“[f]irst, it conclusively determined whether the firm must
continue to represent its client. . . . Second, the withdrawal
issue was ‘completely separate from the merits . . . .’ Finally,
the order would have been unreviewable on appeal from a final
judgment because ‘having to go through trial is itself a loss of
the right involved.’” (citations omitted)); Brandon v. Blech,
560 F.3d 536, 537 (6th Cir. 2009) (“An order compelling an
attorney to continue work without compensation is just the sort
of order the doctrine contemplates: it conclusively determined
6
the withdrawal question, is unrelated to the merits, cannot be
rectified after a final judgment, and may impose significant
hardship.”); Rivera-Domenech v. Calvesbert Law Offices PSC,
402 F.3d 246, 249 (1st Cir. 2005); Fid. Nat’l Title Ins. Co. of
N.Y. v. Intercty. Nat’l Title Ins. Co., 310 F.3d 537, 539–40 (7th
Cir. 2002); Whiting v. Lacara, 187 F.3d 317, 319–20 (2d Cir.
1999) (per curiam). This distinction exists because, “[u]nlike
an order granting or denying a motion to disqualify an attorney,
which primarily affects the interests of the underlying litigants
. . . , an order denying counsel’s motion to withdraw primarily
affects the counsel forced to continue representing a client
against his or her wishes.” Whiting, 187 F.3d at 320 (per
curiam) (citation omitted). “[O]nce a final judgment has been
entered, the harm to [the attorney] will be complete, and no
relief can be obtained on appeal.” Id.
We have not squarely addressed whether the collateral
order doctrine applies to orders denying motions to withdraw
due to a conflict of interest. In Ohntrup v. Firearms Center,
Inc., 802 F.2d 676 (3d Cir. 1986), we held that an order
denying a law firm’s motion to withdraw after entry of
judgment, but before the conclusion of post-judgment
discovery, was immediately appealable although there were
still proceedings ongoing in the district court. We relied on the
doctrine of “practical finality” and did not address the
collateral order doctrine, but the reasoning was much the same
as above: the attorney would “be effectively denied meaningful
review of the order” if not permitted to appeal immediately. Id.
at 678.
Years later, United States v. Bertoli, 994 F.2d 1002 (3d
Cir. 1993), held that the collateral order doctrine did not apply
to an order appointing a firm as standby counsel for its former
client. The district court required the firm to serve without
compensation, that a firm attorney be present at all pretrial
proceedings, and that two named partners be present
7
throughout the months-long trial. Id. at 1007–10. We reasoned
that although the order met the first two collateral-order
prongs—it conclusively determined the disputed question and
resolved an important issue completely separate from the
merits—it failed the third, which requires the order to be
effectively unreviewable on appeal from a final judgment. Id.
at 1014. But because the order raised “fundamental, unsettled
issues concerning a district court’s inherent power over the
attorneys who practice before it,” id. at 1005, we treated the
appeal as a petition for a writ of mandamus and exercised
jurisdiction, see id. at 1014–15. We ultimately held that the
district court had abused its discretion in ordering the firm to
serve under the circumstances. Id. at 1006. 1
The Government asserts Bertoli held that orders
denying motions to withdraw are categorically exempt from
the collateral order doctrine. 2 We disagree. In Bertoli we did
1
Golubitsky mentions two unreported decisions of our
Court holding that the collateral order doctrine applies to
orders denying motions to withdraw. Erie Molded Plastics,
Inc. v. Nogah, LLC, 520 F. App’x 82, 84 (3d Cir. 2013); United
States ex rel. Magid v. Barry Wilderman M.D., P.C., 305 F.
App’x 41, 42 (3d Cir. 2008). We, however, do not rely on
either, as by tradition we do not cite as authority our not
precedential opinions. 3d Cir. I.O.P. 5.7.
2
The Government alternatively relies on our statement
in Bertoli that we prefer “to postpone review of an order
directed against a non-party until the case is concluded in the
district court or until the non-party has been held in contempt,”
994 F.2d at 1013, to argue that non-parties such as Golubitsky
must suffer contempt before they can appeal. However, we
also made clear that contempt may be unnecessary “if there is
8
not consider a motion to withdraw as counsel based on a
conflict of interest, but rather to withdraw as stand-by counsel
based on the onerous conditions imposed by the district court.
Whether Golubitsky will be forced to violate his ethical
obligations and whether he will be denied meaningful review
after trial are before us here. And as noted, we ultimately
decided Bertoli on principles applicable to the rarely invoked
writ of mandamus, not something we even consider here.
Given the interests Golubitsky claims are violated, our analysis
of the third prong of the collateral order doctrine is different
than in Bertoli. It thus does not foreclose the possibility that
the collateral order doctrine applies to orders denying motions
to withdraw. 3
no real possibility of [an appeal] disrupting an underlying
action,” see id. (quoting United States v. Sciarra, 851 F.2d 621,
629 (3d Cir. 1988)), and the Government has made no
allegation of disruption flowing from Golubitsky’s appeal. In
fact, at oral argument it noted that if Golubitsky were removed
as counsel, the District Court would likely appoint replacement
counsel “in short order.” Tr. 24. Moreover, we have never
read Bertoli for the broad proposition that non-parties must
suffer contempt before securing appellate review.
3
Golubitsky argues in the alternative that the All Writs
Act, 28 U.S.C. § 1651, gives us jurisdiction because we
disposed of Bertoli, 994 F.2d 1002, by treating the petition as
one seeking a writ of mandamus, id. at 1014. We need not
decide this contention because here the collateral order
doctrine applies. Moreover, mandamus is not warranted if the
relief sought can be obtained through another means. See
Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam)
(explaining that to obtain mandamus relief a petitioner must
9
If there is tension between the conclusion in Ohntrup
that the attorney would “be effectively denied meaningful
review of the order” denying his motion to withdraw if not
permitted to appeal until after the conclusion of post-judgment
discovery, 802 F.2d at 678, and the conclusion in Bertoli that
the attorneys did not show that the order would be effectively
unreviewable after trial, 994 F.2d at 1014, we hold that a
motion to withdraw were there a conflict of interest would be
effectively unreviewable because the harm of violating one’s
ethical obligations would be complete and could not be undone
after trial. We need not rely on either the doctrine of practical
finality or the dramatic remedy of mandamus because all three
prongs of the collateral order doctrine are satisfied.
Although the weight of the authority holding that orders
denying motions to withdraw are collaterally appealable is
civil in nature, the reasons for applying the collateral order
doctrine are equally compelling in the criminal context. The
Second Circuit has so held. See United States v. Barton, 712
F.3d 111, 116 (2d Cir. 2013) (citing Whiting, 187 F.3d at 320
(per curiam)); United States v. Oberoi, 331 F.3d 44, 47 (2d Cir.
2003). It analogized the denial of a motion to withdraw to the
“denial of immunity or of a double jeopardy claim, which are
reviewable under the collateral order doctrine on the ground
that having to go through a trial is itself a loss of the right
involved.” Whiting, 187 F.3d at 320 (per curiam). The ethical
violations counsel would be forced to commit for conflicts of
interest are the same in the civil and criminal context. Once a
show, inter alia, that “no other adequate means [exist] to attain
the relief he desires” (alteration in original) (quoting Cheney v.
U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004))). In our
case, appellate jurisdiction to decide is not only adequate, but
it is more so than the last resort of mandamus.
10
court compels an attorney to violate ethical obligations, the
harm is done, whether the matter be a civil or a criminal trial.
In sum, Golubitsky’s interlocutory appeal satisfies all
three requirements of the collateral order doctrine. First, the
District Court’s denial of his motion conclusively determined
its outcome. The Court denied his motion to withdraw and
ordered Golubitsky and DiRuzzo to erect a wall separating
their representations of Bellille and Ayala. Second, whether
Golubitsky has a conflict of interest is separate from the merits
of the underlying criminal matter involving a vast RICO
conspiracy. Likewise, any order directing him and DiRuzzo
on how to arrange their purported law practice is separate from
the trial’s merits. And the order will effectively be
unreviewable after trial, as Golubitsky will already have
suffered the harm of being forced to violate his ethical
obligations. See Sanford, 816 F.3d at 549 (per curiam)
(holding that order denying motion to withdraw was
effectively unreviewable after case conclusion); Whiting, 187
F.3d at 319–20 (per curiam) (same).
Accordingly, we have appellate jurisdiction to review
the District Court’s order.
III. MERITS
We review the District Court’s denial of a motion to
withdraw from representation for an abuse of discretion.
Ohntrup, 802 F.2d at 679; see also Whiting, 187 F.3d at 320.
Questions regarding attorney appointment and withdrawal are
committed to the District Court’s sound discretion, and its
determination is guided by the professional rules of conduct.
See Brandon, 560 F.3d at 537. Golubitsky moved to withdraw
11
due to a conflict of interest, and thus we begin our analysis with
the professional rules. 4
A. The Model Rules –– Identifying a Conflict of
Interest
The Virgin Islands Supreme Court adopts the American
Bar Association’s Model Rules of Professional Conduct
(“Model Rules”) and the commentary thereto as the Territory’s
official set of ethics rules. See In re Joseph, 56 V.I. 490, 496
n.1 (2012) (per curiam) (citing V.I. Sup. Ct. R. 203(a)). The
District Court of the Virgin Islands follows suit. D.V.I. Loc.
R. Civ. P. 83.2(a)(1). When faced with motions to disqualify
or withdraw, “courts look to the provisions of the [Model
Rules] for guidance.” Crudele v. N.Y.C. Police Dep’t, Nos. 97-
4
Golubitsky also argues that although the CJA applies
to the District Court of the Virgin Islands, see 18 U.S.C.
§ 3006A(j), and it had the authority to implement a CJA plan
and conscript attorneys who are not members of the CJA panel
to represent indigent defendants, it is not an Article III court
but rather a court of limited jurisdiction, see 48 U.S.C. § 1612,
and thus did not have the authority to order the parties to
implement screening mechanisms. He does not cite any
authority to support this proposition, and we are not aware of
any. Given district courts’ discretion in managing attorney
appointment and withdrawal, and given the Model Rules’
instructions about screening mechanisms, we do not at this
time determine whether and to what extent district courts can
require parties to adopt them.
12
CV-6687 et al., 2001 WL 1033539, at *3 (S.D.N.Y. Sept. 7,
2001).
1. Model Rule 1.7: Conflicts of Interest and
Current Clients
Model Rule 1.7 applies where attorneys at the same firm
have ethical obligations to different clients whose interests
may conflict. The Rule provides that a concurrent conflict of
interest exists, so as to preclude representation as a general
rule, if “(1) the representation of one client will be directly
adverse to another client” or “(2) there is a significant risk that
the representation of one or more clients will be materially
limited by the lawyer’s responsibilities to another client, a
former client or a third person or by a personal interest of the
lawyer.” Model Rules of Prof’l Conduct r. 1.7(a); V.I. Sup. Ct.
R. 211.1.7(a).5
However, the existence of a concurrent conflict of
interest will not preclude representation if four requirements
are met:
(1) the lawyer reasonably believes that the lawyer
will be able to provide competent and diligent
representation to each affected client;
5
One example of a concurrent conflict of interest is
outlined in the Comments to Model Rule 1.7: when, as a result
of undertaking a representation, the lawyer may be required to
cross-examine his own client in another matter. Model Rules
of Prof’l Conduct r. 1.7 cmt. 6 (stating “a directly adverse
conflict may arise when a lawyer is required to cross-examine
a client who appears as a witness in a lawsuit involving another
client”); In re Maynard, 60 V.I. 444, 449–50 (2014) (same).
13
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion
of a claim by one client against another client
represented by the lawyer in the same litigation
or other proceeding before a tribunal; and
(4) each affected client gives informed consent,
confirmed in writing.
Model Rules of Prof’l Conduct r. 1.7(b); V.I. Sup. Ct. R.
211.1.7(b).
If any of those requirements is not met—if, for example,
the representation is prohibited by law, or the client has not
given consent in writing—then the conflicted counsel must
withdraw or be disqualified. And, to add another layer, the
Comments to Model Rule 1.7 explain that the three categories
outlined in Rule 1.7(b)(1)–(3) are “[p]rohibited
[r]epresentations”:
Ordinarily, clients may consent to representation
notwithstanding a conflict. However, as
indicated in paragraph (b), some conflicts are
nonconsentable, meaning that the lawyer
involved cannot properly ask for such agreement
or provide representation on the basis of the
client’s consent.
Model Rules of Prof’l Conduct r. 1.7 cmt. 14. So, for example,
“Paragraph (b)(3) describes conflicts that are nonconsentable
. . . when the clients are aligned directly against each other in
the same litigation or other proceeding before a tribunal.”
Model Rules of Prof’l Conduct r. 1.7 cmt. 17. Whether the
clients are aligned against each other, and whether the
representation involves the same litigation, “require[]
14
examination of the context of the proceeding.” Id. But, once
the Court determines that the parties are on opposing sides,
“[t]here is no exception to Rule 1.7(a) where the lawyer’s
representation ‘involve[s] the assertion of a claim by one client
against another client . . . in the same litigation.’” Nunez v.
Lovell, 50 V.I. 707, 715 (D.V.I. 2008) (Gomez, J.) (second and
third alterations in original) (emphasis omitted) (quoting
Model Rules of Prof’l Conduct r. 1.7(b)(3)); see also Cinema
5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1387 (2d Cir. 1976)
(disqualifying an attorney who was a partner at two firms that
represented clients on opposing sides of the same litigation).
2. Model Rule 1.10: Imputation of Conflicts
of Interest
Model Rule 1.10 requires imputing a conflict of interest
from one attorney to other attorneys “[w]hile [they] are
associated in a firm.” Model Rules of Prof’l Conduct r.
1.10(a); V.I. Sup. Ct. R. 211.1.10. If they are, then the conflict
of one becomes the conflict of the other, and we must assess
whether that presents a prohibited conflict under Model Rule
1.7.
Comment 1 to Model Rule 1.10 states that “the term
‘firm’ denotes lawyers in a law partnership, professional
corporation, sole proprietorship or other association authorized
to practice law,” and clarifies that “[w]hether two or more
lawyers constitute a firm within this definition can depend
upon the specific facts.” Model Rules of Prof’l Conduct r. 1.10
cmt. 1. Courts have taken differing views regarding how of-
counsel relationships should be treated for purposes of
imputing conflicts of interest. Some have adopted a per se rule
of imputation in those cases while others have taken a case-by-
case approach of “examin[ing] the substance of the
relationship under review and the procedures in place.”
Hempstead Video, Inc., 409 F.3d at 135–36 (collecting cases).
15
Screening mechanisms at times come into play in
assessing whether attorneys are associated in a firm for conflict
purposes. The Second Circuit has held that “[w]hether an
attorney is associated with a firm for purposes of conflict
imputation depends in part on the existence and extent of
screening between the attorney and the firm.” Hempstead
Video, Inc., 409 F.3d at 134. The Court reasoned that
[an] ‘of counsel’ attorney, who handles matters
independent of his firm and scrupulously
maintains files for his private clients separate
from the files of the firm, is less likely to be
considered associated with the firm with respect
to those clients than another attorney in the same
position whose client files are not effectively
segregated from those of the firm.
Id.; see also N.Y. State Bar Ass’n Comm. on Prof’l Ethics, Op.
715 (1999) (“[W]e believe screens should be accepted as a
means of ensuring that part time lawyers are not deemed to be
‘associated’ with a law firm.”).
Screening may also be relevant in assessing whether the
four requirements of Model Rule 1.7(b) are met, specifically
whether an attorney will be able to provide competent and
diligent services in non-prohibited representations. See In re
Fisker Auto. Holdings, Inc. S’holder Litig., No. 13-cv-2100,
2018 WL 3991470, at *2–5 (D. Del. Aug. 20, 2018) (denying
a motion to disqualify because the four requirements of Model
Rule 1.7(b) were satisfied, and noting that the law firm had put
in place effective screening mechanisms).
But a screening mechanism cannot cure a prohibited
representation under Model Rule 1.7. See, e.g., In re Cendant
Corp. Sec. Litig., 124 F. Supp. 2d 235, 248–49 (D.N.J. 2000)
16
(holding that a proposed screen could not cure a prohibited
concurrent conflict of interest).
Golubitsky argues that if he continues as Bellille’s
counsel, he will experience a conflict of interest and be forced
to violate his professional responsibilities under Model Rule
1.7(a). He contends he has associated with the DiRuzzo firm
by serving as of counsel, and so any conflicts that arise in that
firm—here, its representation of Ayala—are imputed to him.
Ayala is expected to testify for the Government in Bellille’s
trial. Golubitsky would, we presume, be required to cross-
examine Ayala. He argues that this presents an unwaivable and
nonconsentable conflict.
The Government counters, and the District Court
ultimately agreed, that there is no conflict of interest because
DiRuzzo’s conflict is not imputed to Golubitsky by virtue of
their of-counsel relationship. Model Rule 1.10(a) only requires
imputing a conflict of interest from one attorney to other
attorneys if they are associated in a “firm,” Model Rules of
Prof’l Conduct r. 1.10(a), and the District Court believed the
relationship between Golubitsky and DiRuzzo was too
attenuated.
B. Factual Gaps and Legal Considerations to
Address on Remand
There are too many factual gaps in the record for us to
apply the Model Rules and decide whether there was a true
firm relationship between Golubitsky and DiRuzzo, and
accordingly whether there was a concurrent conflict of interest
that requires withdrawal. If there were, the District Court
would need to assess further the four requirements of Model
Rule 1.7(b).
17
Possibly outcome-determinative information came to
light at oral argument. The District Court did not make
findings on that information (nor can we), and it should create
a record on remand in determining whether there is an imputed
conflict of interest between Golubitsky and DiRuzzo.
For example, Golubitsky stated at oral argument that he
has access to the DiRuzzo firm’s files and that he and DiRuzzo
speak almost every day. Golubitsky has known and worked
with DiRuzzo in different capacities since 2013, as both
focused on federal tax litigation. Golubitsky was previously of
counsel at the DiRuzzo firm from October 2017 to June 2018.
During that time he received remuneration from the firm and
worked on cases with DiRuzzo. These statements suggest a
working relationship.
Yet other evidence emerged that would further support
the District Court’s conclusion that the relationship between
Golubitsky and the DiRuzzo firm indeed is too attenuated. For
example, Golubitsky does not have an office or desk at, or a
key to, the DiRuzzo firm. Nor is there any other evidence that
DiRuzzo and Golubitsky hold out that they are associated in a
firm or make any public representations about Golubitsky’s
role, such as on the firm’s website or on its letterhead. We
suggest further development of the record. 6
Especially puzzling are the factual gaps surrounding the
circumstances of Golubitsky entering into an of-counsel
6
The Court may also want to inquire as to the nature of
the relationship between DiRuzzo and Golubitsky in
connection with Brisa Max. For example, Golubitsky stated at
oral argument that DiRuzzo is compensated by Brisa Max for
his work on Brisa Max cases. We make no conjecture whether
any such relationship is relevant.
18
relationship with the DiRuzzo firm. He stated that he primarily
rejoined the firm in 2019 in order to represent Bellille, but he
did not learn of the client conflict until sometime between
September 11 and 20 of that year. Golubitsky could not
explain, however, why his representation of Bellille did not
come up before he joined the firm and before the conflict check
if he was re-joining in part to represent Bellille. Equally
puzzling is why DiRuzzo’s representation of Ayala was not
discussed before the conflict check. 7 The District Court should
inquire further into why this purportedly did not occur.
The Court may also wish to determine whether
Golubitsky and DiRuzzo attempted to associate to create a
conflict. If the answer is yes, it may want to take disciplinary
action against one or both of the attorneys. Golubitsky would
probably be disqualified from representing Bellille based on
the manufactured conflict and sanctionable conduct.
To recap, as the record currently stands, it is unclear
whether there is an actual of-counsel relationship between
Golubitsky and the DiRuzzo firm, whether the label misstates
the nature of the relationship, and whether the relationship was
possibly entered to create a conflict of interest. So the Court
must first inquire whether the baseline facts are as Golubitsky
and DiRuzzo allege. If it concludes that there is no actual of-
7
It also emerged that Golubitsky had been appointed to
represent Ayala in 2016. However, he never met or spoke with
Ayala and withdrew from representing her within two days of
his appointment because of an imputed conflict with an
attorney at the firm where Golubitsky was an associate at the
time. It is unlikely that an attorney-client relationship was ever
formed between them, but the District Court should also
consider supplementing the record on this to determine
whether there is a conflict of interest regarding a former client.
19
counsel relationship, that ends the analysis; there is then no
relationship to analyze for sufficient “association” under
Model Rule 1.10.
If the facts are as Golubitsky and DiRuzzo allege,
however, so that there is an of-counsel relationship, then the
Court must still inquire whether they were associated in a
“firm” under Model Rule 1.10(a). 8 We doubt that, if the
8
The District Court relied on Kilpatrick, 798 F.3d 365,
to conclude that the relationship between Golubitsky and the
DiRuzzo firm was too attenuated. In Kilpatrick, a former
mayor was charged with, among other things, bribery,
extortion, RICO conspiracy, and tax evasion. Id. at 372–73.
Prior to his indictment, Kilpatrick retained James Thomas to
represent him in unrelated matters. Id. at 373. After Kilpatrick
was indicted, the district court appointed Thomas and Michael
Naughton as Kilpatrick’s CJA counsel. Id. After indictment
but before trial, a third party filed a civil complaint against
Kilpatrick. Id. The third party was represented by the firm of
O’Reilly Rancilio P.C. Id. Thereafter, Thomas and Naughton
became “of counsel” attorneys with that firm. Id. At a conflict
hearing, Thomas explained that he and Naughton maintained a
separate office, had separate electronic filings systems, and had
no financial ties to the third-party litigation. Id. at 374. The
district court declined to disqualify them. Id. After he was
convicted, Kilpatrick appealed. The Sixth Circuit held that
Kilpatrick’s ineffective-assistance claim failed because he
could not show a conflict of interest. Id. at 375. It concluded
that Kilpatrick’s attorneys’ conflicts were not imputed. Id. It
emphasized “the ‘thick ethical wall’ between Kilpatrick’s
counsel and the firm; . . . and . . . the court’s decision to appoint
20
allegations are true, the Court can conclude that they are not so
associated, as it is unlikely that two attorneys who are
genuinely part of or associated with a three-person firm could
effectively put in place screening measures to avoid the danger
of inadvertent disclosure and the appearance of impropriety. 9
a fourth defense attorney to cross-examine the [third-party]
witnesses.” Id. at 375–76.
Kilpatrick is readily distinguishable, however, because
here there is no evidence of a “thick ethical wall” in the record.
Here there was no additional counsel appointed, and
Golubitsky and DiRuzzo had access to the same electronic
filing system. Moreover, in Kilpatrick the court did not allow
two lawyers with an of-counsel relationship to be on both sides
of the same case concurrently, even with screening.
9
By analogy in cases involving former-client conflicts,
courts have held that in small firms the existence of even the
most effective screening mechanism could not avoid imputing
conflicts of interest. For example, in Cheng v. GAF Corp., 631
F.2d 1052 (2d Cir. 1980), judgment vacated on other grounds,
450 U.S. 903 (1981), the Second Circuit reversed a district
court’s failure to disqualify a law firm. The disqualified
attorney was a member of a firm of thirty-five attorneys, he
worked in the health law division when the case was being
handled by the labor division, and the firm submitted affidavits
stating that the attorney had not worked on the case. Id. at
1054, 1057–58 & n.6. Cheng nonetheless concluded that there
was “a continuing danger that [the conflicted attorney] may
unintentionally transmit information he gained through his
prior association [] during his . . . contact with defense
counsel.” Id. at 1058; see also Baird v. Hilton Hotel Corp.,
21
If the District Court again concludes that Golubitsky
and DiRuzzo were not associated in a firm under Model Rule
1.10(a), that too ends the analysis. If so, then there is no
concurrent conflict of interest under Model Rule 1.7 that
presents a problem for Golubitsky’s representation of Bellille.
As noted, the Court concluded that the relationship between
Golubitsky and DiRuzzo was too attenuated, but nonetheless
ordered that they implement a wall, suggesting that there is
indeed a relationship between them that needed to be walled
off. But it cannot be both ways. Either the of-counsel
relationship was not genuine and there was no basis for
imposing a screen. Or there was a true of-counsel relationship
between Golubitsky and DiRuzzo, and a screen alone could not
cure the conflict. See, e.g., In re Cendant Corp. Sec. Litig., 124
F. Supp. 2d at 248–49.10
771 F. Supp. 24, 27 (E.D.N.Y. 1991) (holding that screening
mechanism could not be effective in a firm consisting of nine
attorneys and that counsel continuing would create an “obvious
appearance of impropriety”).
10
The Government cites Renz v. Beeman, No. 87-cv-
487, 1989 WL 16062 (N.D.N.Y. Feb. 21, 1989), to argue that
the relationship between Golubitsky and the DiRuzzo firm is
too attenuated. In Renz, a magistrate judge declined to impute
an of counsel attorney’s conflict to his firm where the attorney:
(i) worked full-time outside the firm as in-house counsel; (ii)
became “of counsel” for the sole purpose of obtaining the
firm’s assistance in representing his own clients; (iii) accepted
no assignments from the firm; (iv) had only a single contact at
the firm; (v) shared a secretary; and (vi) only visited the firm
once every few weeks. Id. at *7–8. Similarly, in our case,
Golubitsky asserts he retains his full-time job as in-house
22
If the Court concludes that Golubitsky and DiRuzzo are
associated in a firm under Model Rule 1.10, then there is an
imputed concurrent conflict of interest, and it must assess
whether the four requirements of Model Rule 1.7(b) are met to
allow the representation to continue. To repeat, if even one is
not met, the Court must grant the motion to withdraw. With
respect to Model Rule 1.7(b)(3), the Court will need to engage
in further fact-finding to determine whether Ayala and
Bellille’s interests are truly adverse in the criminal trial. In
essence, will there be asserted “a claim by one client against
another client represented by the lawyer in the same litigation
or other proceeding before a tribunal[?]” Model Rules of Prof’l
Conduct r. 1.7(b)(3). Or will Ayala testify only against some
or all of Bellille’s co-defendants but expressly not him? If so,
they may not be adverse. We emphasize, however, that, if the
Court concludes that Golubitsky is genuinely of-counsel at the
DiRuzzo firm, and that Ayala and Bellille’s interests are
adverse, then it may be a Model Rule 1.7(b)(3) violation for
Golubitsky and DiRuzzo, two attorneys in an of-counsel
counsel, only works part-time with the DiRuzzo firm, and then
only works on a few select cases. Golubitsky and DiRuzzo
both testified that they have not had any involvement in the
other’s work related to this case.
However, there are critical distinctions between these
cases that the Government overlooks. In Renz the litigants had
given their informed consent to be represented by possibly
conflicted counsel. Id. at *9. And Renz involved a motion to
disqualify an attorney representing a civil litigant, whereas our
case involves a motion to withdraw claiming conflict of
interest in a criminal matter where there is a possible Sixth
Amendment bar to the representation. Hence Renz is not
persuasive.
23
relationship, to represent Bellille, a defendant, and Ayala, a
cooperating prosecution witness, in the same criminal trial.
Another hurdle may be Rule 1.7(b)(2)’s bar on
representations prohibited by law. In a criminal trial, the
interests of a defendant and a cooperating government witness
are almost always adverse. The Sixth Amendment confers a
right to conflict-free counsel and bars representations that
involve an actual conflict of interest. See Cuyler v. Sullivan,
446 U.S. 335, 349–50 (1980). We have previously held that
such a conflict of interest prohibits a representation, despite
waiver by all parties, where counsel has “divided loyalties due
to concurrent or prior representation of another client who is a
co-defendant, a co-conspirator, or a government witness.”
United States v. Moscony, 927 F.2d 742, 749 (3d Cir. 1991)
(emphasis added) (holding that counsel should be disqualified
from representing a criminal defendant if he cannot ethically
cross-examine a witness in that case); see United States v.
Daugerdas, 735 F. Supp. 2d 113, 118 (S.D.N.Y. 2010)
(holding that a law firm’s simultaneous representation of a
defendant and a cooperating witness presented an actual
conflict of interest and warranted disqualification, and stating
that the court was not aware of “a single case in which a court
permitted a law firm to simultaneously represent a defendant
and a cooperating witness with adverse interests in the same
criminal proceeding” (emphasis omitted)). 11 Even concurrent
11
To be sure, a criminal defendant can waive his Sixth
Amendment rights in some circumstances, but it is not
absolute. As the Supreme Court has noted:
[W]hen a trial court finds an actual conflict of
interest which impairs the ability of a criminal
defendant’s chosen counsel to conform with the
[Model Rules], the court should not be required
24
representations of adverse clients in unrelated matters have
been barred. 12 Cf. United States v. Arias, 351 F. Supp. 3d 198,
200–01 (D. Mass. 2019) (disqualifying defense counsel in a
federal drug prosecution because he had an actual conflict of
interest based on his concurrent representation of a cooperating
witness in an unrelated matter so that the representation was
to tolerate an inadequate representation of a
defendant. Such representation not only
constitutes a breach of professional ethics and
invites disrespect for the integrity of the court,
but it is also detrimental to the independent
interest of the trial judge to be free from future
attacks over the adequacy of the waiver or the
fairness of the proceedings . . . .
Wheat v. United States, 486 U.S. 153, 162 (1988) (quoting
United States v. Dolan, 570 F.2d 1177, 1184 (3d Cir. 1978)).
To be clear, not every Sixth Amendment conflicted-
counsel issue makes for a prohibited representation, but on the
record before us we cannot determine whether the
representation here is prohibited. Sixth Amendment rights
ordinarily are the defendant’s to waive and are tied to the effect
on the outcome for the defendant. See Cuyler, 446 U.S. at 348-
49. Ethics rules, by contrast, target the mere presence of
conflicting interests, regardless of any effect on counsel’s
performance. See Model R. Prof’l Conduct 1.7(a), 1.16(a)(1).
12
Even if the District Court concludes that Golubitsky’s
representation of Bellille is not prohibited by law, it must still
consider whether Bellille and Ayala consented in writing to
potentially conflicted representation. See In re Congoleum
Corp., 426 F.3d 675, 691 (3d Cir. 2005).
25
barred by the Sixth Amendment and put him in violation of
Model Rule 1.7); see also United States v. Stewart, 185 F.3d
112, 120–21 (3d Cir. 1999) (holding that an actual conflict of
interest prohibited a representation, despite waiver by all
parties, where a law firm represented a defendant in a criminal
RICO prosecution, and separately a defendant in a parallel civil
RICO action who had agreed to testify against the defendant in
the criminal case). 13
13
Note that our opinion does not resolve any questions
about the scope of Model Rules 1.7(b)(2) and (b)(3).
Questions relating to those provisions were neither briefed nor
argued by the parties and are not necessary to our disposition.
And because it appears highly unlikely that either Bellille or
Ayala will consent to any conflict, Rule 1.7(b)(4) probably
suffices to resolve this case if the District Court concludes that
there is a conflict. See App. 131 (Tr. Oct. 31, 2019 hearing, at
8:22); C.A. Dkt. No. 50, at 2 (Bellille letter). So the Court need
not resolve the application of subsections (b)(2) and (b)(3)
here.
If it were necessary to reach those subsections, Judge
Bibas would doubt whether Rule 1.7(b)(3) applied. While a
fact witness may claim that a defendant did certain things, she
is not “asserti[ng] a claim,” meaning a legal right, against that
defendant. Model R. Prof’l Conduct r. 1.7(b)(3); Assert,
Black’s Law Dictionary (11th ed. 2019) (definition 2); Claim,
in id. Given the difficult questions involved in interpreting
Rule 1.7(b)(2) and (b)(3), we avoid resolving them, preferring
to await briefing and argument in a future case that squarely
presents these issues.
26
* * * * *
Accordingly, we remand for the District Court to
develop further the factual record and decide Golubitsky’s
motion based on that supplemented record. It must first
determine whether there is an actual of-counsel relationship
between Golubitsky and DiRuzzo (in other words, whether the
facts on the ground are as the parties allege).
If there is no actual of-counsel relationship,
Golubitsky’s representation of Bellille in theory could
continue. But the Court should also determine whether
Golubitsky and DiRuzzo associated to create a conflict. If the
answer is yes, it may want to take disciplinary action. In that
scenario, Golubitsky would probably be disqualified from
representing Bellille based on the manufactured conflict and
sanctionable conduct.
If there is a real relationship, then the Court must inquire
whether Golubitsky and DiRuzzo were associated in a “firm”
under Model Rule 1.10(a) based on the supplemented record.
Were they not associated in a “firm,” the representation may
continue and there is no need for screening mechanisms.
If there is an actual relationship, and Golubitsky and
DiRuzzo were associated under Model Rule 1.10, the Court
must assess whether the four requirements of Model Rule
1.7(b) are met. If even one is not met—for example, if the
Court concludes that the representation involves the assertion
of a claim by one client against another client in the same
litigation, or Bellille and Ayala did not consent in writing to
the representations—the Court must grant the motion to
withdraw.
27