805 F.3d 200
5th Cir.2015Background
- Timothy Dale Jackson participated in a Church-promoted tax-avoidance scheme: became a minister, purportedly took a vow of poverty, assigned assets and income to the Church, but continued to receive ~90% of his income for personal expenses.
- The Church’s senior minister, Kevin Hartshorn, and other ministers engaged in the same scheme and were targets of IRS investigations and civil proceedings.
- Jackson retained John J.E. Markham, II, who then represented Jackson through investigation and was admitted pro hac vice for trial; Markham had represented Hartshorn, the Church, and other ministers in related matters.
- Government moved to disqualify Markham because Markham had (1) represented potential government witnesses (creating cross-examination and loyalty conflicts) and (2) borrowed from and expected fees controlled or repaid by the Church/Hartshorn (third-party payment concern).
- The district court assumed waivers were offered but found the conflicts non-waivable and disqualified Markham; Jackson was tried, convicted on tax-evasion and corrupt-interference counts, and appealed claiming deprivation of his Sixth Amendment right to counsel of choice.
Issues
| Issue | Plaintiff's Argument (Jackson) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether disqualification of counsel violated the Sixth Amendment right to counsel of choice | Markham was Jackson’s counsel of choice; Jackson and Hartshorn knowingly waived conflicts; separate counsel reviewed conflict issues | Markham’s concurrent/previous representation of witnesses and third‑party fee arrangements created actual and serious potential conflicts that are non-waivable | Court affirmed: disqualification did not violate Sixth Amendment because actual and serious potential conflicts existed |
| Whether attorney’s representation of potential government witnesses requires disqualification | Jackson: interests aligned; Hartshorn’s testimony would support Jackson’s defense so no real adversity | Gov: cross‑examining current/former clients creates divided loyalty and could impair zealousness | Court: representation of potential witnesses posed real conflict and justified disqualification |
| Whether a client’s waiver cures conflicts when counsel previously represented witnesses | Jackson: valid waivers were given and reviewed by separate counsel | Gov: waivers insufficient where conflict is non‑waivable or severely risks fairness of trial | Court: waivers did not cure conflicts that gravely imperiled fair proceedings; court may refuse waivers |
| Whether third‑party payment of attorney’s fees creates a non‑waivable conflict | Jackson: fee arrangement disclosed and accepted | Gov: third‑party control over fees risks divided loyalty and is inherently dangerous | Court: fee control by Hartshorn supported disqualification as an additional conflict factor |
Key Cases Cited
- Wheat v. United States, 486 U.S. 153 (1988) (right to counsel of choice limited by conflicts; courts may refuse waivers to protect fairness and ethics)
- Gharbi v. United States, 510 F.3d 550 (5th Cir. 2007) (presumption of counsel of choice can be rebutted by conflicts; waivers may not cure constitutional infirmity)
- United States v. Millsaps, 157 F.3d 989 (5th Cir. 1998) (affirming disqualification where defense counsel also represented a proposed government witness)
- Perillo v. Johnson, 205 F.3d 775 (5th Cir. 2000) (cross‑examination of current/former clients can create a conflict of interest)
- Wood v. Georgia, 450 U.S. 261 (1981) (noting inherent dangers when counsel is paid by a third party)
- United States v. Sanchez Guerrero, 546 F.3d 328 (5th Cir. 2008) (standard of review: disqualification reviewed for abuse of discretion)
- United States v. Anderson, 755 F.3d 782 (5th Cir. 2014) (abuse of discretion review is deferential)
- Love v. Tyson Foods, Inc., 677 F.3d 258 (5th Cir. 2012) (abuse of discretion defined: reliance on clearly erroneous facts, erroneous law, or misapplication)