United States v. Crowder
313 F. Supp. 3d 135
D.C. Cir.2018Background
- Crowder and Brumfield are charged in an alleged scheme to defraud DC Public Schools; government moved to disqualify Crowder’s counsel Gregory Lattimer.
- Government alleged Lattimer had formed a "web of representations": Crowder, two companies (A Simple Solution, LLC and Education Connection, LLC), and at one time Brumfield.
- Key facts: Lattimer made limited, early (2011–2013) phone inquiries for the companies about regulatory filing; he provided documents to the government after grand jury subpoenas but insisted the companies were defunct; he never received fees or signed retainer agreements for the companies.
- Lattimer stated he never had a one-on-one attorney-client relationship with Brumfield, never filed for the companies, and had no substantive knowledge about the companies’ operations beyond what he learned representing Crowder. Government did not dispute these factual representations at the hearing.
- Government also sought DOJ permission to subpoena Lattimer as a trial witness; argued his testimony might be necessary about subpoena responses and about who sought his help years earlier.
- Court denied disqualification: found no substantial prior representation of the companies or of Brumfield that would create a disqualifying conflict, and held it was unlikely Lattimer would be a necessary trial witness under Rule 3.7.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lattimer’s prior contacts with the companies create a disqualifying conflict (Rule 1.7/1.9) | Lattimer represented A Simple Solution and Education Connection (including statements in emails), so he may have concurrent or materially adverse interests and undisclosed/confidential info. | Lattimer’s work for the companies was limited, pro bono, consisted of a few regulatory phone calls in 2011–2012, no retainer, no remuneration, and no substantive confidential info; he did not represent the companies at time subpoenas issued. | Court: No disqualification — prior contacts were not "substantially related" to this criminal matter and did not create a Rule 1.9 or 1.7 conflict. |
| Whether Lattimer ever formed an attorney-client relationship with Brumfield (Rule 1.9) | Government suggested he instructed Brumfield to produce documents and thus may have represented her in responding to subpoenas. | Lattimer denied one-on-one counsel to Brumfield, never spoke with her outside counsel, no fee, no agreement, and Brumfield did not rely on him; no attorney-client relationship formed. | Court: No attorney-client relationship with Brumfield found; no disqualification on that basis. |
| Whether Lattimer is likely to be a necessary witness such that he must be disqualified (Rule 3.7) | Government may need Lattimer to testify about who approached him and about the subpoena responses; if subpoena responses become contested, his testimony could be necessary. | Any need to call Lattimer is remote; he already made uncontested factual statements; DOJ must approve trial subpoena and has deferred pending the disqualification decision; forcing testimony risks unfairly impairing defense counsel. | Court: Unlikely he will be a necessary witness; Rule 3.7 does not require disqualification. |
Key Cases Cited
- Wheat v. United States, 486 U.S. 153 (1988) (courts must balance defendant’s Sixth Amendment right to counsel of choice against need to avoid conflicts and preserve fair proceedings)
- United States v. Lopesierra-Gutierrez, 708 F.3d 193 (D.C. Cir. 2013) (conflict-analysis requires balancing Sixth Amendment rights and the court’s independent interest in ethical proceedings)
- Paul v. Judicial Watch, Inc., 571 F. Supp. 2d 17 (D.D.C. 2008) (motions to disqualify are disfavored and may be used as tactical weapons)
- Konarski v. Donovan, 763 F. Supp. 2d 128 (D.D.C. 2011) (disqualification available for conflicts or ethical violations but examined skeptically)
- Koller ex rel. Koller v. Richardson-Merrell Inc., 737 F.2d 1038 (D.C. Cir. 1984) (courts should be hesitant to disqualify counsel absent tainting of the underlying trial)
- Headfirst Baseball LLC v. Elwood, 999 F. Supp. 2d 199 (D.D.C. 2013) (factors for determining existence of attorney-client relationship and standards for disqualification)
- United States v. Bikundi, 80 F. Supp. 3d 9 (D.D.C. 2015) (representing one co-defendant and then another can create disqualifying conflicts)
- United States v. Locascio, 6 F.3d 924 (2d Cir. 1993) (discussing risk that counsel called as witness might impart unsworn testimony to jury)