United States District Court, D. Massachusetts
MEMORANDUM & ORDER
NATHANIEL M. GORTON UNITED STATES DISTRICT JUDGE.
Brian Joyce (“defendant” or “Joyce”),
a former Massachusetts State Senator, has been indicted by a
grand jury on 113 counts including racketeering, honest
services fraud, extortion under color of official right and
conspiracy to defraud the IRS.
government moves that the Court disqualify Attorney Howard M.
Cooper (“Attorney Cooper” or
“Cooper”) from representing Joyce in this case.
It contends that Cooper is a necessary percipient witness and
that his representation of Joyce poses a conflict of
interest. The government also proposes the issuance of a
subpoena duces tecum to Attorney Cooper and requests that
this Court perform an in camera, ex parte examination of
Attorney Cooper's file to determine whether certain
documents fall within the crime-fraud exception to
1998 to 2017, Mr. Joyce served as an elected State Senator in
the Commonwealth of Massachusetts. He represented the
Norfolk, Bristol and Plymouth district and served for nine
terms. Joyce is also a member of the Massachusetts Bar and
maintained a law practice while he held office which is
permitted under Massachusetts law.
December, 2017, a federal grand jury returned a 113-count
indictment against Joyce, charging him with criminal conduct
spanning from early 2010 through February, 2016. The
indictment alleges that, as a State Senator, Joyce attempted
to exploit his official office for private gain in multiple
corrupt schemes. The indictment was preceded by a series of
articles in the Boston Globe, an investigation by the
Enforcement Division of the Massachusetts State Ethics
Commission, a federal grand jury investigation and a search
of Joyce's law office in February, 2016.
first alleged scheme involves quid pro quo agreements with an
energy insurance brokerage company which, for the time being,
will remain anonymous and will hereinafter be referred to as
“EIB”. According to the government, Joyce agreed
to sponsor, file, amend and vote on
legislation that benefitted EIB in exchange for monthly cash
payments and EIB common stock. In addition, the indictment
alleges that Joyce and EIB's CEO agreed that Joyce would
act in his official capacity to influence the Massachusetts
Division of Insurance (“DOI”) to act favorably
second alleged scheme, Joyce accepted privately held EIB
common stock from the EIB CEO in exchange for Joyce's
official action with respect to PACE and the DOI. When the
custodian of Joyce's IRA account would not authorize a
purchase of EIB common stock as a tax-free rollover using
Joyce's existing simplified employee pension IRA
(“SEP-IRA”) assets, Joyce orchestrated a purchase
of that common stock using fictitious retirement accounts he
created for himself and his spouse.
third alleged scheme involved payments by a coffee franchise
owner to Joyce for non-existent legal services and free
deliveries of hundreds of pounds of coffee in exchange for
the promotion, sponsorship and filing of state legislation by
Joyce for the benefit of the franchise owner.
Cooper began representing Joyce in March, 2015, after the
Boston Globe began an investigation of his conduct as a
senator, his law practice, alleged conflicts of interest and
campaign finances. Cooper represented Joyce in his
interaction with the Globe and with respect to a separate
investigation by the Massachusetts Ethics Commission.
Government contends that Joyce engaged Cooper to make false
representations to the Globe and the Ethics Commission. Those
statements include, inter alia, a letter to the Ethics
Commission stating that Joyce purchased EIB common stock with
funds from his SEP-IRA and an email to the Ethics Commission
including copies of a fraudulently backdated invoice and
checks related to the purchase of coffee. Defendant denies
that those communications included false statements.
Government filed the motion at issue in February, 2018. In
addition to defendant's opposition to that motion, amicus
briefs in support of defendant have been filed by the
Massachusetts Bar Association and the Boston Bar Association.
Disqualification of Attorney Cooper
Sixth Amendment to the United States Constitution guarantees
that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for
his defence.” That right to counsel attaches when an
individual is arrested and held to answer criminal charges.
United States v. Gouveia, 467 U.S. 180, 185-186
(1984). One element of that right is the “right of a
defendant who does not require appointed counsel to choose
who will represent him.” United States v.
Gonzalez-Lopez, 548 U.S. 140, 144 (2006).
criminal defendant's absolute right to counsel
“does not confer an absolute right to a particular
counsel.” United States v. Diaz-Martinez, 71
F.3d 946, 949 (1st Cir. 1995) (citation omitted) (internal
quotation omitted). A defendant cannot insist upon
representation by a particular attorney where such
representation “will obstruct reasonable and orderly
court procedure”. United States v. Poulack,
556 F.2d 83, 86 (1st Cir. 1977). In a similar vein, a court
may disqualify a defendant's attorney “where it
finds either an actual conflict or a serious potential
conflict.” United States v. Lanoue, 137 F.3d
656, 663 (1st Cir. 1998).
the government may not infringe upon the right to counsel of
choice to gain a tactical advantage. United States v.
Diozzi, 807 F.2d 10, 13-14 (1st Cir. 1986). Attorney
disqualification is a “drastic remedy”,
Fonten Corp. v. Ocean Spray Cranberries, Inc., 469
F.3d 18, 23 (1st Cir. 2006), that “should be a measure
of last resort.” Diozzi, 807 F.2d at 12.
Accordingly, “the government bears a heavy burden of
establishing that disqualification is justified.”
Best Evidence Rule
government contends that Joyce enlisted Attorney Cooper's
legal assistance to conceal and perpetuate the ongoing
criminal schemes charged in the indictment. Accordingly, the
government argues, Joyce turned Cooper into a percipient
witness whom the government intends to call. The defendant
insists that the government cannot demonstrate a legitimate
need for Cooper's testimony that would outweigh
Joyce's Sixth Amendment right to counsel of his choice.
have an affirmative duty not to circumvent the protection
afforded by the right to counsel. Maine v. Moulton,
474 U.S. 159, 171 (1985). Accordingly, attempts to call a
defense attorney as a witness against his client are governed
by the “best evidence rule”:
Where the government's proffer of a defense
attorney's testimony will force the attorney's
removal, the government may only call the attorney as a
witness if, without his or her testimony, the government must
settle for less than its best evidence.
United States v. Hallock, 941 F.2d 36, 44 (1st Cir.
1991) (citing United States v. Cortellesso, 663 F.2d
361, 363 (1st Cir. 1981)) (internal quotation marks omitted).
has agreed to stipulate that he “reviewed, approved and
authorized the submission of the specific statements”
sent by Attorney Cooper to the Ethics Commission. He has also
agreed to stipulate that he waives any right to rely on the
advice of Cooper or the law firm of Todd & Weld
concerning the disputed statements and that he knowingly,
voluntarily and with advice of independent counsel waives any
right to contend that Cooper represented him while under a
conflict of interest.
hearing on the motion to disqualify, the government argued
that the stipulation was insufficient because it does not
state that 1) Cooper disclosed to the Ethics Commission all
material information that Joyce provided to him or 2) Joyce
is the sole source of information provided to the Commission.
Those concerns are unavailing. Joyce now stipulates that he
is the sole source of the statements concerning his state of
mind and contends that the fact that Cooper cannot testify
that Joyce was the sole source of every statement is not a
material factor in the pending motion to disqualify. The
government offers no authority to the contrary. Given
Joyce's revised stipulation, the government has failed to
show that Cooper's testimony is necessary to its case.
drastic remedy of disqualification is unwarranted in light of
Joyce's stipulation. See United States v.
Diozzi, 807 F.2d 10, 16 (reversing, as constitutional
error, disqualification of defense counsel where stipulation
was adequate substitute for attorney's testimony). The
Diozzi court rejected the government's argument that the
jury could be confused by the written submission and that
defense counsel's testimony would aid the effective
ascertainment of truth, concluding that the government
“failed to support the disqualification order on best
evidence grounds.” Id. at 14.
Diozzi, the government here has failed to demonstrate that,
without Cooper's testimony, it will have to ...