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United States v. Beach

United States District Court, S.D. Mississippi, Eastern Division

September 11, 2019

UNITED STATES OF AMERICA
v.
GLENN DOYLE BEACH, JR.

          ORDER

          KEITH STARRETT UNITED STATES DISTRICT JUDGE

         On July 24, 2019, the Government filed a Motion to Disqualify [28] Defendant's counsel, Brian E. Dickerson and his law firm, FisherBroyles, LLP. The Government argued that Dickerson has a conflict of interest because he also represents current and former associates of Beach currently under investigation by the grand jury in the Southern District of Mississippi. Beach opposes the motion [32].

         The Court scheduled a hearing on the motion for September 10, 2019. Out of concern for the integrity of the grand jury proceedings, the Court held the hearing in chambers. After the Court heard brief opening arguments from the parties, it noted the inherent difficulty in addressing the Government's motion in a procedurally fair manner while also protecting the integrity of the grand jury proceedings, as the Court had permitted the Government to redact and/or seal portions of their filings on this issue. The parties agreed on the following procedure.

         First, the Court met with the Government's attorneys ex parte, and they provided the Court with a brief overview of the facts underlying the Government's motion. Then, the Court met jointly with the Government's attorneys, Defendant, and one of Defendant's attorneys, Arthur F. Jernigan, Jr. The Government provided substantially the same recitation of facts to Defendant and his counsel, Mr. Jernigan. Finally, the Court met with Defendant and Mr. Jernigan ex parte and allowed them to respond to the Government's argument. Having heard from both parties, the Court is prepared to rule on the pending motion.

         The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const. amend. VI. The Sixth Amendment right to counsel doesn't just apply at trial, but also to plea negotiation and sentencing. United States v. Scribner, 832 F.3d 257-58 (5th Cir. 2016). “Part of this guarantee is a criminal defendant's right to retain the attorney of his choice, ” but the right is not absolute. United States v. Gharbi, 510 F.3d 550, 553 (5th Cir. 2007). Rather, “the essential aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.” Id. (quoting Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988)). Therefore, although there is a “presumption in favor of a defendant's counsel of choice, ” the “presumption may be overcome by an actual conflict of interest, or by a showing of a serious potential for conflict.” Id.

         Although, a defendant “may waive conflicts of interest in some situations, ” United States v. De Nieto, 922 F.3d 669, 679 (5th Cir. 2019), a “valid waiver does not end the inquiry . . . .” Gharbi, 510 F.3d at 553. “[T]he district court has an ‘independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.'” Id. (quoting Wheat, 486 U.S. at 160). The Court must “be ever wary of the subtle problems implicating the defendant's comprehension of the waiver to protect the integrity of the court and defendant against future attacks over the adequacy of the waiver or the fairness of the proceedings.” De Nieto, 922 F.3d at 679 (punctuation omitted). Therefore, the Court has “substantial latitude in refusing waivers of conflicts of interest . . . where an actual conflict may be demonstrated before trial [and] where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses.” Id.

         Generally, “[d]isqualification cases are governed by state and national ethical standards adopted by the court.” FDIC v. United States Fire Ins. Co., 50 F.3d 1304, 1311 (5th Cir. 1995). This Court has adopted the Mississippi Rules of Professional Conduct. L.U.Civ.R. 83.5. However, in some cases, where the conflict is apparent from the record, “a court may find a potential or actual conflict of interest without reference to a rule of professional conduct.” United States v. Avant, 2016 WL 6440608, at *5 (N.D. Miss. Oct. 28, 2016) (citing United States v. Jena, 478 Fed.Appx. 99, 103 (5th Cir. 2012)).

         Mississippi's Rules of Professional Conduct provide:

         (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless the lawyer reasonably believes:

(1) the representation will not adversely affect the relationship with the other client; and
(2) each client has given knowing and informed consent after consultation. The consultation shall include explanation of the implications of the adverse representation and the advantages and risks involved.

         (b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless the lawyer reasonably believes:

(1) the representation will not be adversely affected; and
(2) the client has given knowing and informed consent after consultation. The consultation shall include explanation of the implications of the representation and ...

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