This is аn appeal by ten witnesses from the district court’s order disqualifying Sol Z. Rosen, Esquire, and Joseph M. Whitehead, Esquire, from representing them in a grand jury investigation concerning interstate prostitution, where each witness invoked the Fifth Amendment and where the government pointed to three witnesses and Mr. Whitehead as targets of the investigation.
In February 1977, a special grand jury for the Unitеd States District Court for the Western District of Virginia convened at Lynchburg to investigate possible violations of federal laws against interstate prostitution and racketeering.
When the witnesses represented by Messrs. Rosen and Whitehead came before the grand jury to testify, the government told at least three that they were also potential targets of the investigation. Each of the ten refused to testify on Fifth Amendment grounds.
Several motions were again before the court on March 30, including a request for reconsideration of the motions to quash and to suppress evidence. The matter of Mr. Whitehead’s possible conflict of interest apparently came up again at that time but no action was taken.
When the grand jury reconvened on April 6, 1977, the United States filed a motion to disqualify Mr. Whitehead, arguing that representation of these clients would put him in the рosition to suppress possible testimony against himself. The government also sought to disqualify Mr. Rosen, arguing that he represented witnesses with possible conflicts of interest, that he could not, for example, advise any one of the witnesses to seek immunity in return for testifying against his other clients, that he would be in a position to use information obtained in attorney-client relationships to the detriment of his other clients, and that his clients made legally unwarranted assertions of Fifth Amendment privilege to protect other persons.
The attorneys filed written statements of each witness purporting to waive any defects in their attorney’s representation due to possible conflicts of interest. All the waivers were dated February 14 and 15, except one, which was dated April 5.
In response to the government’s motion to disqualify the two attorneys, the court examined five of the witnesses on voir dire, in camera and ex parte, at appellants’ request. It sealed the record of the voir dire also at appellants’ request. Based on this voir dire hearing, the court concluded there was “not only a potential but an actual conflict of interest in Mr. Whitehead and Mr. Rosen’s representation of multiple witnesses before the Grand Jury,” further aggravated because Mr. Whitehead was himself a target of the investigation.
We are told that the grand jury has reconvened and that the witnesses have retained other counsel. Still seeking representation by Messrs. Rosen and Whitehead,
The government first argues that this is not an appealable order, noting that in United States v. Hankish,
“. . . which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review аnd too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.”
We agree with cases in other circuits considering the question since our decision in Hankish. That is, we think Cohen applies here because this order is final and conclusive as to Messrs. Whitehead’s and Rosen’s representation of these witnesses and because it concerns important rights which might be irretrievably lost if review were denied now. In re Grand Jury Empaneled January 21, 1975,
Appellants argue that the district court’s order unconstitutionally deprives them of an absolute right to counsel of their own choice under the Sixth Amendment. The question of whether or not there is any right to have an attorney represent a witness in grand jury proceedings apart from the Sixth Amendment is not before us, see Mandujano, 425 U.S. p. 581,
We think there may be doubt, after the Supreme Court’s plurаlity opinion in United States v. Mandujano,
The Supreme Court has noted the importance of the grand jury’s investigative function in United States v. Dionisio,
“The Fifth Amendment guarantees that no civilian may be brought to trial for an infamous crime ‘unless on a presentment or indictment of a Grand Jury.’ This constitutional guarantee presupposes an investigative body ‘acting independently of either prosecuting attorney or judge,’ whose mission is to clear the innocent, no less than to bring to trial those who may be guilty. . . . The grand jury may not always serve its historic role as a protective bulwark standing solidly between the ordinary citizen and an overzealous prosecutor, but if it is even to approach the proper performance of its constitutional mission, it must be free to pursue its investigations unhindered by external influence or supervision so long as it does not trench upon the legitimate*656 rights of any witness called before it.” (Citations and foоtnotes omitted).
Pertinent here also is the discussion in United States v. Calandra,
“The power of a federal court to compel persons to appear and testify before a grand jury is also firmly established. The duty to testify has long been recognized as a basic obligation that every citizen owes his Government. In Branz-burg v. Hayes [408 U.S. 665 ,92 S.Ct. 2646 ,33 L.Ed.2d 626 ], at 682 and 688 [92 S.Ct., at 2657 and 2660], the Court noted that ‘[c]itizens generally are not constitutionally immune from grand jury subpoenas . . and that ‘the longstanding principle that “the public . has a right to every man’s evidence” . is particularly applicable to grand jury proceedings.’ The duty to testify may on occasion be burdensome and even embarrassing. It may cause injury to a witness’ social and economic status. Yet the duty to testify has bеen regarded as ‘so necessary to the administration of justice’ that the witness’ personal interest in privacy must yield to the public’s overriding interest in full disclosure. Furthermore, a witness may not interfere with the course of the grand jury’s inquiry . Nor is he entitled ... ‘to set limits to the investigation that the grand jury may conduct.’ ” (Citations and footnotes omitted).
Of the five witnesses examined on voir dire, threе indicate they apparently disregard that duty, choosing instead a course of noncooperation by improperly invoking the Fifth Amendment privilege to protect from incrimination, not themselves, but their lawyer and other witnesses. Rogers v. United States,
Whethеr or not there is a Sixth Amendment right to counsel here, a lawyer has certain professional obligations when he undertakes to represent a client. Our canons of ethics require a lawyer’s “entire devotion to the interest of the client” in the discharge of his duty as an officer of the Court. Braxton v. Peyton,
We do not assume Mr. Whitehead is involved in the wrongdoing under investigation. It is for the grand jury to decide whether the evidence warrants indictment against him. But we also cannot say with any assurance that Mr. Whitehead is not in a position to frustrate the grand jury’s inquiry into his own participation, if any there be, in the crimes under investigаtion. Moreover, three of the witnesses told the district court at the in camera hearing they would not testify against Mr. Whitehead, a resolve we think can only be strengthene4 by the fact that he is their attorney. To avoid the appearance of impropriety on the part of its officers; to avoid a possible frustration of the grand jury proceeding; and because оf the actual as well as potential conflict of interest; we think the court properly exercised its discretion in disqualifying Mr. Whitehead.
Mr. Rosen’s problem is similar, although not as pronounced. Although he is not a target of the investigation, seven of the clients he represents have conflicts of interest with the three who are targets, as well as with Mr. Whitehead, his co-counsel, who is associated with him in the case. Professional ethics prevent Mr. Rosen from advising a witness to seek immunity or leniency when the quid pro quo is testimony damning to his other clients, to whom he also owes a duty of undivided fidelity, not to mention co-counsel. But a lawyer’s duty to his witness-client who can benefit from immunity or leniency is to so advise him and, in many circumstances, to request permission to approach the prosecutor on his behalf. The conflicting interests of Mr. Rosen’s clients as well as co-counsel prevent him from the discharge of this duty.
Mr. Rosen offers us no viable solution to this dilemma. Instead, he offers us written statements from each witness purporting to waive any conflicts of interest arising out of the multiple representation. We find the waivers ineffective under the particular circumstances of this case. So far as they purport to waive “later” “conflict[s] of interest which could develop” in the future, we think they are ineffective on their face.
Aside from any Sixth Amendment right to the effective assistance of counsel which may or may not exist here, the witnesses apparently hired Mr. Rosen because they thought him a competent lawyer who would protect their best interest. That is obviously why they agreed to pay for his services.
But Mr. Rosen’s effectiveness as attorney to each is shackled by the conflict of interest among the witnesses. Nothing in the record indicates that Mr. Rosen ever explained to each client precisely how, in the context of the client’s individual situation, the conflict might require Mr. Rosen to use confidential facts learned in their attorney-client relationship to the detriment of that client or to sacrifice that client’s best interest in order to faithfully perform his duty to the others. And more importantly, nothing indicates that Mr. Rosen discussed with any of his clients the effect of the actual, rather than potential, conflict of interest between them. Indeed, the conflict in fact arose at the grand jury session on February 16 and 17, when the witnesses were named as targets, after the waivers had already been signed. Without the knowledge of how such change in circumstances affected Mr. Rosen’s representation, explained in detail, we think the witnеsses could not have understood what they purported to waive in the affidavits. We also think a detailed explanation of how their testimony might affect Mr. Whitehead was owed to each witness.
The essence of the waiver question is this. On February 14^15
On the whole case, we think there is a conflict of two principles. The first one is the entitlement of the witnesses to representation by an attorney in grand jury proceedings whether as a matter of federal procedural law or constitutional right. The second is the right of the grand jury to pursue its investigative functions, which includes the right of the public to every mаn’s testimony. And not to be forgotten is the right of the courts to control their own officers, the attorneys. “When two principles come in conflict with each other, the court must give them both a reasonable construction, so as to preserve them both to a reasonable extent.” Mandujano,
Our opinion should not be read to hold that a witness is not entitled to the assistance of counsel in grand jury proceedings. Neither should it be read to hold that mere multiple representation is of itself disqualifying. We do hold that the district court was within its discretion in disqualifying these attorneys in this case.
The judgment of the district court is accordingly
AFFIRMED.
Notes
. Apparently the Mann Act, 49 U.S.C. §§ 1, et seq.; and the Travel Act, 18 U.S.C. § 1952.
. “It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend fоr that which duty' to another client requires him to oppose.
“The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.”
. A question arose during oral argument as to who was to pay the attorney’s fees for these witnesses. Even after the filing of affidavits, the question remains unresolved, but, because we find it unnecessary to our decision, we do not remand for a finding of fact.
. One witness signed a waiver on April 5th. She, however, states that she does not believe
. It is apparent from the in camera hearing that conflict of interest was mentioned to the witnesses at some time by the attorneys and that some of them at that time may have wished to waive a disqualification. It is equally as apparent that none of them who testified in that hearing had any clеar idea of exactly what the conflicts were and their effects.
An affidavit filed by Mr. Rosen after argument may indicate that he “was never advised as to the identity of my clients who were deemed to be targets.” Apparently this refers to the government advising him, for it was argued on appeal, outside the record, in explanation of the order denying the stay pending appeal, that the witnesses discussed the matter among themselves, indeed that “Mr. Rosen didn’t have to pass any information on, because everyone was present at one point or another and knew who had been designated as target.” Another post-argument affidavit filed by Mr. Rosen details that his clients advised him as soon as they were advised they were targets.