UNOPPOSED MOTION TO WITHDRAW

COMES NOW the Defendant, * . *, by and through his undersigned attorney, and without objection by the government, and moves this Honorable Court to enter an order allowing the Office of the Federal Public Defender to withdraw from the representation of the Defendant and substitute counsel from the Criminal Justice Act Panel, to represent the Defendant in all further proceedings. As grounds the following is stated:

1. That the undersigned was appointed to represent the Defendant on May 1, 1995. Trial is scheduled for July 3, 1995.

2. That on June 5, 1995, the undersigned attorney was contacted by another client, who has a case pending sentencing before this Court. That client advised he wanted to provide damaging information against another person for purpose of reducing his sentence. The undersigned then called the F.B.I. to advise them of this. Later that day, the client advised the person whom he referred to was * L. *, the client in this case.

3. That the undersigned has a legal duty to zealously represent the client facing the sentencing by pursuing a meeting with law enforcement agents. However, to do that would conflict with representing the defendant here. In addition, to continue to represent Mr. *,

after assisting the other client with knowledge from his representation, would also be a conflict. A duty to zealously represent Mr. * would force the use of information gained from the other client's confidential relationship.

4. That Mr. * has the constitutional right to conflict-free counsel. Sufficient time exists to appoint such counsel from the CJA Panel. Appointment of another attorney from the same office as the undersigned would not cure the conflict of interest.

5. That the undersigned has a good faith belief that a genuine conflict of interest exists in the continued representation of Mr. *. This motion is unopposed by Assistant U.S. Attorney, Gregory N. Miller.

6. That it would be a conflict of interest for the representation of either defendant and the undersigned is moving to withdraw in both cases.

7. That the Rules Regulating the Florida Bar mandate the filing of this motion. See Chapter 4, Rules of Professional Conduct, Rule 4-1.7(a);(b); Rule 4-1.8(b); Rule 4-l.9(a);(b) and Rule 4-1.10(a), The Florida Bar Journal (September 1994).

MEMORANDUM OF LAW

The Local Rules for the Middle District of Florida provide that an attorney appearing before a judge in the Middle District of Florida must be a member in good standing of the Florida Bar. Accordingly, all attorneys employed by the Federal Public Defender for the Middle District must be members of the Florida Bar. Local Rule, Middle District of Florida, 2.01(a) and (b). The undersigned has spoken with an attorney from the Ethics Department of the Florida Bar. Said attorney, a Mr. Arne Vanstrum, indicated to the undersigned that the Code of Professional Conduct for the Florida Bar required the attorneys representing Mr. *, and the other client in that case, to move to withdraw from representing them in those cases. The Bar attorney further indicated that said disqualification would also apply to all of the attorneys employed by the Federal Public Defender for the Middle District. In Castro v. State, 597 So.2d 259 (Flat 1992); the Florida Supreme Court interpreted Rule 4-1.10 as requiring that an attorney's ethical obligation to former clients generally requires disqualification of the attorney's entire law firm where any potential for conflict arises. Id. at 260. In the instant case, the conflict is more apparent as it does not relate to a former client, as in Castro, supra, but rather relates to two active clients, both with pending cases.

The Defendant is entitled to an attorney who is free of conflicts of interest from the representation of other clients. Rule 4-1.7(a);(b), Rules of Professional Conduct, Rules Regulating The Florida Bar, The Florida Bar Journal (Sept. 1994). In this case, the representation of Mr. * is clearly damaged by the representation of another client who has already initiated the efforts of the undersigned to the detriment of Mr. *. The independent professional judgment for Mr. * was unwittingly compromised when counsel began acting to assist the sentencing reduction efforts on behalf of another client. Rule 4-1.7(b).

To further avoid any problems resulting from conflicts of interest arising from the dual representation described, the undersigned has moved to withdraw from representing both Mr. * and the other client. Information gained from representing the defendants in both cases can not be used to the detriment of either client. Rule 4-l.9(b), supra. The representation of the client facing sentencing has made it impossible for this office to continue to represent Mr. *. A further conflict must be avoided by new and independent counsel from outside this office. Rule 4-l.lO(a), supra, requires all attorneys in a firm to be treated as one.

Since trial is set for July 3, 1995, sufficient time exists to cure the problem by appointing

independent counsel. The government has concurred with this request.

WHEREFORE, the Defendant, by and through his undersigned counsel, moves this

Honorable Court to order a substitution of counsel from the Criminal Justice Act Panel to

represent the defendant in the further proceedings.

DATED this day of June, 1995.

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