People v Piscitello

[*1] People v Piscitello 2011 NY Slip Op 51953(U) Decided on October 13, 2011 Just Ct Of Vil Of Westbury Of Nassau County Liotti, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 13, 2011
Just Ct of Vil of Westbury of Nassau County

People of the State of New York

against

Joseph Piscitello, President, All Seasons Taxi Corp., Defendant.



People of the State of New York, -against-

against

Ronald Kagen, Defendant.



People of the State of New York, -against-

against

Donald Cooper, Defendant.



People of the State of New York, -against-

against

Jean R. Leonard, Defendant.



8578

Thomas F. Liotti, J.

The Court notes that these are separate cases where one defense lawyer has filed Notices of Appearance for all defendants. The defendants are the President of a taxi company who allegedly allowed his drivers, the three individual defendants named here, to operate taxi cabs [*2]and collect fares within the Village without being licensed by it. The Court further notes that these cases have not been consolidated and joins them for purposes of this decision and order alone since the prosecutor has moved to disqualify defense counsel due to a conflict of interest.

Motions for the disqualification of counsel are raised by prosecutors, adversaries in civil litigation and in some instances, by Courts either sua sponte or after being prodded into action by one side or the other. The rationale for the motion may concern an alleged ethical breach, either real or potential, that theoretically or in actual practice, might undermine the integrity of the trial proceedings or even impeach a verdict. Unfortunately, aside from these legitimate concerns, disqualification motions are also used by some for far less noble purposes, including but not limited to, driving a wedge of distrust between counsel and her client; or, derailing an adversary's case by forcing counsel and their clients to spend time and money on tangential issues; or forcing competent or aggressive counsel from a case which may then compel litigants to either proceed pro se or retain new counsel perhaps far less familiar with the case and parties involved.

The issue of disqualification of counsel brings to this Court the companion issue of what legal threshold or standard that a movant must meet before a Court must seriously consider disqualification of counsel. The motion may be a warrantless attack or death blow to an adversary and her clients. It may also be a legitimate concern which nonetheless raises the issue of to what extent, if at all, an adversary or the Court should inveigle themselves into the camp of an attorney and her clients while also understanding that any interference may jeopardize a client's Sixth Amendment rights to effective legal representation or otherwise deprive them of due process of law [FN1]. Courts should also guard against allegations of a breach of the Code of [*3]Professional Responsibility recognizing that the principal policemen and women of that function are Grievance Committees entrusted with that role and with the statutory expertise to carry it out. While some Courts and attorneys may view themselves as the mantle of appropriate conduct and professional responsibility that is not part of the oaths that we take as attorneys or judges. The temptation to hold one's self out as a arbiter of professional etiquette and responsibility is one that should be resisted especially in the absence of knowing what it is to practice law not in ivory towers but in the wells of our courts with real people and everyday concerns. This is a Local Criminal Court with those people and concerns before it.

In this case our well respected Village Attorney and prosecutor has made an oral motion to disqualify an equally well respected defense counsel for his representation of a taxi company, its owner and drivers. Defense counsel has responded by indicating that he will respond orally at the next court date and both sides have otherwise answered ready for trial.

The pertinent Disciplinary Rules as amended in April, 2009 provide as follows:

Rule 1.7 Conflict of Interest: Current Clients.

(a)Except as provided in paragraph (b), a lawyer shall not represent a client if a reasonable lawyer would conclude that either:

(1) the representation will involve the lawyer in representing differing interests; or

Subsection (b) then states:

(b) Notwithstanding the existence of a current conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(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.

Disqualification due to alleged conflicts is thusly discretionary and is left to the decision making of reasonable lawyers. What then is the minimum threshold that a prosecutor must [*4]satisfy before he or she should be permitted to invade the defense function or to request that a court do so? Under what circumstances, if any, does a prosecutor have a duty to act in order to remedy a perceived conflict? Reasonable lawyers in "good standing" are presumed to know the Rules of Professional Conduct and to be in compliance with them. In essence, then in making a motion to disqualify, a prosecutor is stating: (1) that an unremediable conflict exists or simply that there is a conflict in his or her opinion and that he or she does not know the status of it.

Rule 1.0 of the Code of Professional Responsibility provides operational definitions or terminology for terms used elsewhere in the Code. Subsection (g) thereof states in relevant part:

When used in the context of conflict of interest determinations, reasonable lawyer' denotes a lawyer acting from the perspective of a reasonably prudent and competent lawyer who is personally disinterested in commencing or continuing the representation.

The Code of Professional Responsibility, Rule 3.8 governs the conduct of prosecutors to a much lesser degree [FN2]. Subsection (a) concerns the requirement that charges be instituted or maintained only on the basis of probable cause. Subsection (b) concerns the codified responsibility of prosecutors to turn over discovery pursuant to Brady v. Maryland, 373 U.S. 83 (1963); Kyles v. Whitley, 514 U.S. 419 (1995); U.S. v. Gil, 297 F.3d 93 (2002) and People v. John Daly, 57 AD3d 914 (2d Dept., 2008).

The Code does not tell us what criteria a prosecutor must meet, if any, before moving to disqualify a defense lawyer. Is it enough for the prosecutor to baldly or unwittingly state that he believes that there is a conflict? A prosecutor may believe that it is her responsibility or part of her oath to report an alleged ethical breach to the court. It can also be that a prosecutor may feel compelled to report the conflict or to make the motion to disqualify not because of an ethical breach but simply to thwart a problem from arising during the trial or post verdict with regard to defendants represented by the same lawyer, belatedly making a claim of a conflict or ineffective assistance. At the same time prosecutors, not this one, may use a disqualification motion for nefarious, legally unjustified purposes [FN3]. It is not for this Court to guess at what the motives of the prosecution may be or to place unfair inferences upon them. It is, however, the responsibility [*5]of this Court to determine the criteria for the disqualification of this defense lawyer and whether the prosecutor has met the burden.

Preliminarily this Court notes that Mr. Mastroianni has always conducted himself in a highly professional and competent manner whenever he has appeared before it. In fact, as a resident of the Village and a busy practitioner in this and many other courts for more than thirty years, in this Court's opinion, Mr. Mastroianni is among the very few legal practitioners with an intimate knowledge of our Village's Local laws. Thus, I must find under the Code that he is a "reasonable lawyer".

At the same time, Mr. Kraemer, his late father, David Kraemer and the law firm of Kraemer and Mulligan are legends in this Village, well known for their high standards of professional ethics and competence. The Court therefore ascribes no illicit motives to Mr. Kraemer and only the best of intentions. However, the critical legal question here is what must the Court do when a prosecutor makes a bald assertion of a conflict of this genre?

Traditionally when such an application is made courts will protect their records by conducting a Gomberg or Curcio hearing. See, People v. Gomberg, 38 NY2d 307 (1975) and U.S. v. Curcio, 680 F.2d 881 (1982). In some instances the Court may voir dire defense counsel or defendants regarding the potential pitfalls of a joint defense. In the most extreme situations, the Court may appoint a "shadow" or Curcio counsel to interview defendants and report to the Court as to any conflicts. To the best of this Court's knowledge, no Court in this nation has ever appointed a Special Prosecutor to carry on a prosecution if a prosecutor has made the disqualification motion for an improper purpose. Similarly, this Court is not aware of a reference to a Grievance Committee by a court for a prosecutor improperly making a motion to disqualify. See, U.S. v. Frank Locasio and John Gotti, 6 F.3d 924 (1993).

Therefore, having the motion before me I must decide what to do with it. This Court determines that in light of the facts that the disqualification motion is a bald assertion of a potential conflict and that Mr. Mastroianni is an attorney in "good standing" and therefore a "reasonable lawyer" under the Code, that I need go no further and decline to question Mr. Mastroianni or his clients about this matter. That would be an unwarranted invasion of the defense camp and involve time and expenses that should not be depleted by the defense and this Court. What Mr. Mastroianni elects to do internally with respect to his practice such as the preparation of a joint defense agreement is up to him.

In the event that defendants turn on their lawyers during a trial or post-verdict, that is the defense lawyer's problem and not this Court's. It is not for this Court to look into a crystal ball to envision possible defenses and whether they may be inconsistent or antagonistic in the absence of more information which this Court does not presently have at its disposal.

In our system of justice, each of the players has a role to play. Each player must respect the roles and functions of the others. This is simply common sense but too often judges believe that defense lawyers are up to no good and that prosecutors are white knights riding horses of the same color. This Court does not reach those conclusions and has equal respect for both defense lawyers and prosecutors. Given that level of respect I must presume on the basis of this limited record that both Mr. Kraemer and Mr. Mastroianni are doing their jobs to the very best of their abilities. Indeed, this Court expects nothing less from the fine attorneys who come before it.

If Mr. Kraemer has more to go on then he is free to raise it. Mr. Mastroianni is, of course, [*6]free to respond. But for now, this Court declines to become more involved, on the face of this record.

In reaching this conclusion, the Court has carefully reviewed its duties and obligations under People v. Gomberg, 38 NY2d 307 (1975). The Court of Appeals noted in Gomberg:

In reaching a resolution of the issue of effective assistance of counsel, it is necessary to carefully balance two considerations flowing from the same constitutional protection. The right of an accused in a criminal proceeding to the assistance of counsel is guaranteed by the Federal and State Constitutions, as well as by State statute. (U.S. Const. 6th Amdt; NY Const. Art.1, §6; CPL 210.15, subd.2.) This constitutional right may be substantially impaired if one lawyer simultaneously represents the conflicting interests of a number of defendants. (Glasser v. United States, 315 US 60, 70.) However, the joint representation of defendants is not per se a denial of the effective assistance of counsel. (People v. Gonzalez, 30 NY2d 28, 34, cert den 409 US 859.) A conflict exists only when the individual defenses "run afoul of each other". (People v. Gonzalez, supra, at p. 34.) Yet, once a conflict is clearly established, the courts will not enter into "nice calculations" as to the amount of prejudice resulting from the conflict. (Glasser v. United States, supra at p. 76.)

On the other hand, an important concomitant of the right to counsel is the obligation of the courts to respect a selection of counsel made by the defendant and such choice should not be lightly interfered with. (See United States v. Sheiner, 410 F.2d 337, cert den. 396 US 825,) Once counsel is selected, the evolving relationship of attorney and client becomes increasingly close and intimate. In order to give proper professional guidance to his client, the attorney should be made fully cognizant of the relevant facts. (ABA Standards Relating to the Defense Function, §§3.1, 3.2; see Whiting v. Barney, 30 NY 330, 332-333.) Trial strategy and tactics must be carefully planned and discussed. In order to insure that the attorney and client have the privacy necessary for effective representation, we have in our State, as a matter of public policy, given confidential attorney-client communications a privileged status. (CPLR 4503; Richardson on Evidence [10th ed.] §411, pp. 404-405.) It has even been suggested that the freedom of confidential communication between lawyer and client is as valuable as the privilege against self incrimination. (See People v. Lynch, 23 NY2d 262, 271.)

Since the right to effective assistance of counsel and the right to retain counsel of one's choice may clash when a retained attorney is involved in an apparent conflict of interest, a Trial Judge has a duty to protect the right of an accused to effective assistance of counsel. At the same time, a court should not arbitrarily interfere with the attorney-client relationship.

The court should also recognize that a defendant may not always perceive the existence of a conflict of interest in the joint representation by an attorney. Consequently, the court should be satisfied, where there is joint representation, that the defendant's decision to proceed with his attorney is an informed decision. (United States v. Truglio, 493 F.2d 574, 579; United States v. Williams, 429 F.2d 158, 161 cert den. 400 US 947; United States v. Lovano, 420 F.2d 769, 772-773, cert den. 397 US 1071; Campbell v. United States, 352 F.2d 359, 360; ABA Standards Relating to the Function of the Trial Judge, §3,4; see People v. Chacon, 69 Cal 2d 765.) The [*7]court may even inquire as to whether counsel himself has perceived the conflict and apprised his client of the risks involved. (See Lord v. District of Columbia, 235 A2d 322, 323 [DC].) However, a court must be careful not to pursue its inquiry too far as it may infringe upon the defendant's right to retain and confer with counsel of his own choice. (See People v. Gonzalez, 30 NY2d 28, 34, supra.) Of course, the court ordinarily should not probe, as part of its inquiry, into confidential attorney-client communications, including discussions of possible defenses of both the accused and his codefendants. Moreover, to permit an extensive judicial inquiry into privileged matter would "virtually * * * outlaw joint representation". (United States v. Wisniewski, 478 F.2d 274, 285.) What is required is that when two or more defendants are represented by the same attorney, the trial court ascertain, on the record, whether each defendant has an awareness of the potential risks involved in that course and has knowingly chosen it. (See United States v. Wisniewski, 478 F.2d 274, 285, supra; Glasser v. United States, 315 US 60, 71, supra.)

It is important to note that the preliminary inquiry takes place before the formal commencement of the trial. As a result, the court may not be fully cognizant of the evidence to be adduced, the strategies to be followed and all defenses that may be plausibly asserted. Consequently, the court, at the outset, may not be aware of the details or ramifications of any conflict that it might later perceive. Nevertheless, this does not relieve the court from its responsibility to assure that codefendants' decision to proceed with one attorney is an informed decision. In carrying out this Responsibility, the court places reliance upon the willingness and ability of defense counsel to perform their duties in a forthright and professional manner. Attorneys are under an ethical obligation to disclose to their clients, at the earliest possible time, any conflicting interests that might cloud their representation.

Disclosure alone is not enough. The lawyer may not act for the client unless the client has given his informed consent to further representation. (Code of Professional Responsibility, EC 5-16, DR 5-101 [A], DR 5-105 [B], [C], ABA Standards Relating to the Defense Function, §3.5[a], [b].) It is appropriate, under such circumstances, for the court to place great weight upon counsel's representation that there is no conflict in his joint representation. Similarly, the court may rely upon counsel's assurances that he had fully discussed the potentiality of conflict with his clients and received their continued approbation. (United States v. Armone, 363 F.2d 385, 406 cert den. sub nom Viscardi v. United States, 385 US 957; Hill v. State, 316 A2d 557, 558 [Del].) It may properly be assumed that an attorney will not perjure himself, nor deliberately act in violation of the Code of Professional Responsibility. (United States v. Wisniewski, 478 F.2d 274, 284-285, supra.)

This Court is satisfied on the basis of Mr. Mastroianni's statements to this Court in the presence of his client that an impermissible conflict does not exist.

The Court also notes that the defendants here are not charged with crimes but mere violations of our Local Laws. The rigors that might apply in the case of a motion to disqualify defense counsel in a multi-defendant, protracted, state or federal criminal case, do not fit this situation. [*8]

In United States v. Francis Curcio, 680 F.2d 881 (1982) the Second Circuit examined the issues of a defendant's right to effective, conflict free representation and his concomitant right to counsel of his choice. The Court found that the right to counsel of one's own choosing is more compelling than the right to conflict free representation where the conflict is waived and knowingly, voluntarily and intelligently made. In citing to United States v. Cunningham, 672 F.2d 1064 (2nd Cir. 1982) the Court held:

We observed that a criminal defendant has not only a constitutional right to an attorney who has no conflict of interest but also a right of constitutional dimension, although not absolute to counsel of his own choosing, e.g., United States v. Wisniewski, 478 F2d 274, 285 (2d Cir. 1973); United States v. Sheiner, 410 F.2d 337, 342 (2d Cir.), cert. denied, 396 U.S. 825, 90 S. Ct. 68, 24 L. Ed. 2d 76 (1969), and that the latter right should not be obstructed unnecessarily, id.; United States v. Bernstein, 533 F.2d 775, 788 (2d Cir. 1976). We noted further that the government's interest in disqualifying Tigar, since the government had no attorney-client privilege of its own to protect, was "relatively weak." Compare Cunningham with United States v. Ostrer, 597 F.2d 337 (2d Cir. 1979) (upholding disqualification of defense counsel who was former government attorney in related matters). We held that in such circumstances, when the defendant's two rights conflict, the decision as to which is to take precedence should be left to the defendant. Cunningham thus established that where the former client does not seek disqualification and his rights can be adequately safeguarded, the interests of the former client, the interest of the public in the integrity of the judicial system, and the interests of the defendant are best protected by honoring the defendant's knowing and intelligent decision to waive his right to an attorney of undivided loyalty in order to retain the attorney of his choice.

Here this Court is satisfied that either no conflict exists or if it does, that it is waivable and that Mr. Mastroianni has thoroughly discussed these issues with his clients and that they understand those rights because Mr. Mastroianni is an Officer of the Court and as such, has assured me that they do by his Notice of Appearance. I am also convinced that as a careful, caring counsel, that Mr. Mastroianni is well aware of his obligations under the Code and pursuant to both Gomberg and Curcio. This Court trusts in the conduct of the attorneys before it and therefore it finds that the broad inquiries by the Court as set forth in Gomberg and Curcio need not be applied here.

Therefore, it is respectfully ordered that the motion by the prosecutor for disqualification is denied without prejudice.

DATED:Westbury, New York

October 13, 2011

SO ORDERED:

_______________________________________

THOMAS F. LIOTTI Footnotes

Footnote 1: People v. Rafael Quiroz, 15 Misc 3d 1128(A), 2007 W.L. 1247257 (TABLE) (N.Y.Dist. Ct.), 2007 NY Slip Op. 50895(U). Judge Susan T. Kleuwer, decided April 18, 2007. See Rosamaria Mancini, Bid to Oust Lawyer in Criminal Case Fails Despite Family Court Conduct, New York Law Journal, May 3, 2007 at 1 and 2. Also Decided 04/18/07, District Court, Judge Kleuwer. New York Law Journal, May 8, 2007 at 1, 21, and 23. Defense Counsel's Conduct in Family Court Matter Did Not Warrant Disqualification in Instant Case - Prosecutors moved to disqualify defense counsel and preclude use at trial of statements by prosecution witnesses arguing counsel took the statements without the permission of presence of their attorneys during a pending Family Court matter. Prosecutors contended counsel's conduct was such an egregious violation that he must be disqualified especially as he was attempting to use the product of these improper communications in seeking dismissal of the criminal action. The court stated while the alleged victim whose rights counsel violated was the very focus of the Family Court proceeding, the considerations that were the underpinning of that ruling on the instant disqualification motion simply did not pertain here. It noted neither the alleged victim nor her mother were a "party" to the criminal action, noting the court was aware of no public policy or other consideration pertinent to this action warranting interfering with defendant's fundamental, albeit not absolute, right to counsel of his own choosing. Thus, it declined to disqualify defense counsel or preclude use at trial of the statements obtained from prosecution witnesses. See Vesselin Mitev, Panel Says Interview Violated Girl's Rights, Backs Disqualification, New York Law Journal, December 4, 2007, Long Island This Week at 24. Appellate Division affirmed the Family Court disqualification of Mr. Liotti for taking two statements from a young woman wherein she recanted sexual allegations against her uncle. The uncle was also charged in District Court whereupon conviction, he could have been subject to a deportable, Megan's Law offense. Instead, he pled guilty to a reduced charge and received a Conditional Discharge which was not a Megan's Law violation and was not a deportable offense. See also, Scott H. Greenfield, Esq., The Overzealous Lawyer? Simple Justice, a New York Criminal Defense Blog, 5/8/07.

Footnote 2: Liotti, Thomas F. and Zeh, Christopher, The Uneven Playing Field: Part I, Ethical Disparities Affect Criminal Cases, The Attorney of Nassau County, March, 2000 at 5, 14, 15 & 16 and the New York State Bar Association, Criminal Justice Section Journal, Winter, 1999, Vol. 7, No. 2 at 75. The Uneven Playing Field: Part II, Ethical Disparities Cloud Cases, the Attorney of Nassau County, April, 2000 at 5. Reprinted in its entirety, New York State Bar Association One on One, a publication of the General Practice Section, Summer 2000, Vol. 2, No. 2 at 21. See also, Verdict, a publication of the National Coalition of Concerned Legal Professionals, April, 2002, Vol. 8, No. 2 at 3-23. See also, Uneven Playing Field: Ethical Disparities Between The Prosecution And Defense Functions In Criminal Cases, Touro Law Review, Vol. 17, No. 2, Winter 2001.

Footnote 3: Liotti, Thomas F. and Smith, Drummond C., Government Dirty Tricks And The War On Drugs, Verdict, a magazine published by the National Coalition of Concerned Legal Professionals, July, 2009 at cover, 1, 26-44.