The case of the week involves the Sixth Amendment right to counsel of choice (at least for those who can afford to pay for counsel of choice).  The federal district court initially denied the defendant’s choice of counsel but then reconsidered in light of the Sixth Amendment, as explained below.

Mr. Archie was charged with several criminal tax violations.  For his defense, he retained out-of-state counsel, who sought and obtained pro hac vice admission in the district court.  As the court put it:

Once counsel is admitted to practice pro hac vice, “the standards and procedures” for disqualifying counsel cannot be any “more stringent than those imposed upon members of the local bar.”  “Although the admission of attorneys pro hac vice is committed to the discretion of the district courts, denial of admission pro hac vice in criminal cases implicates the constitutional right to counsel of choice.”  “A defendant’s right to the counsel of his choice includes the right to have an out-of-state lawyer admitted pro hac vice.”[1]

The prosecution, however, began to raise objections to the lawyer’s pro hac vice admission.  In particular, the prosecution noted that on the lawyer’s initial application he had partially disclosed only one previous administrative suspension (for failing to file a required trust account certificate in another state).  The lawyer had actually been administratively suspended in the state five times, not once.  The lawyer had also noted on his application that he had been admitted pro hac vice in Montana district court but that admission had also been administratively revoked (for failure to file an acknowledgment and acceptance of that admission in a timely fashion).  Finally, after the lawyer’s admission in the current matter, the lawyer moved to substitute as counsel for Mrs. Archie (i.e., Mr. Archie’s codefendant).  In that filing, the lawyer asserted that “dual representation in tax cases is common” and that “he has participated in multi-family defendant criminal cases and offered two examples of such cases, including ‘a more recent matter United States v. Chang, . . . where the undersigned currently represents both son and mother (conflict waiver pending).’”  The cited Chang court, however, ultimately denied the lawyer’s attempted joint representation in a criminal case.[2]  The prosecution brought this denial to the district court’s attention on the morning of the hearing that had been scheduled to address the lawyer’s omitted administrative suspensions.  Being displeased with the lawyer’s failure to inform the court of this denial and with the lawyer’s lack of disclosure of all of his administrative suspensions, the court revoked the lawyer’s pro hac vice admission.

Following briefing on the lawyer’s motion for reconsideration, the court was “still persuaded that [the lawyer] made erroneous representations relating to the suspension of his Wisconsin license and that he should have supplemented his representation to the Court regarding the ruling in Chang.”[3]  But the court nevertheless retracted the revocation:

While the Court continues to be concerned about [the lawyer]’s conduct, the Court is more concerned about potential prejudice to Mr. Archie. Balancing these concerns, the Court finds that Mr. Archie’s constitutional right to counsel of his choice weighs in favor of reconsideration. The Court will therefore reconsider its decision to revoke [the lawyer]’s pro hac vice admission and permit him to continue to represent Mr. Archie.

In reaching this reconsideration, the court noted that the revocation might have prejudiced Mr. Archie in several ways.  First, Mr. Archie had chosen and expressed confidence in the lawyer.  Second, the lawyer “represents that he has extensive experience with defending criminal tax cases and is one of the few attorneys in the country who have helped their clients win full felony acquittals, dismissal, or reversal on appeal,” and the lawyer “further represents that he and his staff, including a team of forensic accounts, have invested significant time and resources into Mr. Archie’s defense.”  Finally, were Mr. Archie to lose the lawyer, Mr. Archie would also suffer additional expense and delay in getting another lawyer up to speed.

The full order is available here: United States v. Archie (D. Nev. June 19, 2015).

[1]  For these propositions and quotations, the court cited United States v. Ries, 100 F.3d 1469, 1471 (9th Cir. 1996) and United States v. Collins, 920 F.2d 619, 626 (10th Cir. 1990).

[2]  Joint representation in criminal cases is usually (but not universally) impermissible. See, e.g., Keith Swisher, Disqualifying Defense Counsel: The Curse of the Sixth Amendment, 4 St. Mary’s J. Legal Malpractice & Ethics 374, 400-03 (2014) (Part III.A). In a separate order, the district court found that conflicting interests precluded the joint representation of Mr. and Mrs. Archie. For general information on disqualification of criminal defense counsel, see this post.

[3]  This conclusion that the lawyer’s conduct otherwise warranted revocation distinguishes this case from Gonzales-Lopez (in which it was ultimately conceded that the district court had denied pro hac vice admission solely on the basis of an erroneous interpretation of the ethical rules). See United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) (concluding that the trial court violated the defendant’s Sixth Amendment right to counsel of choice when it erroneously denied his chosen counsel’s pro hac vice applications).