United States v. Wayne Bellille
962 F.3d 731
| 3rd Cir. | 2020Background
- Alexander Golubitsky, formerly a CJA panelist, was appointed to represent Wayne Bellille in a multi-defendant RICO prosecution and soon moved to withdraw citing a conflict.
- Golubitsky then associated "of counsel" with DiRuzzo & Company; a conflicts check revealed the firm’s principal, Joseph DiRuzzo, represented cooperating witness Aracelis Ayala, expected to testify for the government.
- Golubitsky argued the association imputed DiRuzzo’s conflict to him under the Model Rules and created a nonconsentable Sixth Amendment/ethical conflict; the District Court denied withdrawal but ordered a conflict wall.
- Golubitsky appealed; the Court of Appeals held the denial is immediately appealable under the collateral order doctrine and reviewed for abuse of discretion.
- The Third Circuit vacated the denial and remanded for further fact-finding because the record lacked necessary facts to decide: whether a genuine of-counsel/firm relationship existed, whether conflicts were imputed under Model Rule 1.10, and whether Model Rule 1.7(b) or the Sixth Amendment prohibited the representation.
Issues
| Issue | Golubitsky's Argument | Government/District Court's Argument | Held |
|---|---|---|---|
| Appellate jurisdiction: is denial of motion to withdraw immediately appealable? | Collateral-order review required because forcing counsel to continue causes irreparable, unreviewable harm. | Denial is interlocutory; final- judgment rule bars immediate appeal (citing Flanagan). | Collateral order doctrine applies; appealable. |
| Does an of-counsel association impute DiRuzzo’s conflict to Golubitsky under Model Rule 1.10? | Yes — his of-counsel status, billing access, malpractice coverage, shared work and communications show association. | No — relationship was part-time/attenuated; not a firm for imputation purposes. | Record is insufficient; remand for fact-finding on the nature/substance of the association. |
| Can screening cure the conflict if imputed? | Screening may be ineffective given small size and shared systems; can't prevent ethical violation. | A wall/screen can be effective because relationship is ad hoc/part-time. | Court must develop factual record; suggested screening likely inadequate in small, closely-associated practice. |
| Does the representation create a nonconsentable conflict under Model Rule 1.7 or the Sixth Amendment? | Representation would be nonconsentable because counsel would have divided loyalties and be forced to cross-examine a witness represented by his firm. | No conclusive proof yet; possible waiver or limited adversity depending on Ayala’s testimony. | Undecided on current record; remand to determine adversity, consent, and whether representation is prohibited. |
| Remedy and ancillary issues (manufactured conflicts/sanctions) | If association was contrived to create conflict, disciplinary action and disqualification may be warranted. | No clear evidence of manufactured conflict. | Remand to investigate whether association was designed to create conflict; if so, sanctions/disqualification possible. |
Key Cases Cited
- Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (establishes collateral order doctrine)
- Flanagan v. United States, 465 U.S. 259 (orders disqualifying counsel are normally not collaterally appealable)
- Cuyler v. Sullivan, 446 U.S. 335 (Sixth Amendment actual-conflict standard)
- Ohntrup v. Firearms Center, Inc., 802 F.2d 676 (3d Cir.) (practical-finality approach to immediate appeals by counsel)
- United States v. Bertoli, 994 F.2d 1002 (3d Cir.) (addressed non-party appointment and mandamus; distinguishes issues)
- Whiting v. Lacara, 187 F.3d 317 (2d Cir.) (orders denying counsel’s withdrawal are appealable under collateral order doctrine)
- Hempstead Video, Inc. v. Inc. Vill. of Valley Stream, 409 F.3d 127 (2d Cir.) (case-by-case treatment of of-counsel relationships and role of screening)
- United States v. Kilpatrick, 798 F.3d 365 (6th Cir.) (attenuated of-counsel relationships and effectiveness of ethical wall)
- Cheng v. GAF Corp., 631 F.2d 1052 (2d Cir.) (screening ineffective in smaller firms; risk of inadvertent disclosure)
- Moscony, 927 F.2d 742 (3d Cir.) (counsel disqualification where divided loyalties impair cross-examination)
- Stewart, 185 F.3d 112 (3d Cir.) (simultaneous representation creating actual conflict in RICO context)