in as a second lawyer or you were you the one that was originally appointed i was the one who was going to join for the trial as the second pro bono lawyer you said pro bono you this was not being paid by the government mr  burstein mr warren mr warren was c j appointed counsel i was going to come in to try the case with him as is commonly done with through lawyer trials i was going to come in to try the case with him on  and i think i as a judge when will no firm from i assume your days on district court on c j matters you can't just walk into court with a second lawyer or an expert or an investigator and say hey this person a head of time not not post trial review but ahead of time you have to get pre authorization from the district court for these types of things but what confuses me here is again just reading the record i understand it my understanding is that literally on the this and he said well he's my partner i want him to be involved in this and he's on a c j panel so when i saw that up well wait a minute i mean a lot of experience is you know just learning stuff  and nobody talked about whether you get paid or not c j lawyers generally get paid who's burden is it to establish that it's what you get paid or not it would be  it's a hard question to answer on the facts of this case it would be our burden that's an easy answer but the but there are a couple red herrings in the government's been a friend of my friend and write that brief and they seem to have been effective red herrings and i would like to take some time to dispel them so that we're not getting lost from the tree six and then issue here first one is this mobo no votes started like to know is your position the sixth amendment right to have i would have been permitted to sit it counsel table you couldn't pass notes yet yes your honor and she basically with the judge half was saying there's going to be one attorney speaking they almost always i mean your honor knows almost always the u s attorney does have two lawyers and the federal defenders office can put two or three more so we have this one sliver of c j appointed cases circuit controls of course not but it's certainly persuasive and ed like you find it so i guess my concern is did defendant ask for you yes or is that in the record your honor it's impossible to put that in the record because the moment mr warren raised this issue he's cut off midsentence and that was a couple of the red herrings i want to get to the government does an excellent job of putting the two sections where this is discussed in one page of their brief but they're separated by thirty five of before you get in that i just want to take this sequence julie you you've indicated that it was not your intention to get paid even though your partner said he's my new partner and the implication is hey my partner partners get to share each other's revenues or you agree that it was your burden to establish whether you get paid which was not met here i asked whether the defendant had asked for you  there's no question there's a sixth amendment right for somebody to have in an non government page actuation the lawyer of his or her choice i see nothing in the record here that says that she asked for you does does your pardner have the right as someone who has a financial interest in that transaction since you are his partner yes to commit someone else in this case the defendant to have a second lawyer it's the defendant six and  not my partner's nor mine nor the potential fellow if she didn't raise it what does that do if anything well we all know that the system would break down if it wasn't defending speaking through their counsel and if we can about want to help me with this yes you're not dealing with is from my perspective a conflict of interest ok you could have you know c j a lawyer come in and say i've got ten new partners they are great i want them all to be with me here on this case and not say whether the defendant wants them but you're saying that that would create a sixth amendment right because presumably that lawyer can commit the defendant to a request now i understand completely if she said  event you're not the one c j attorney that she appointed correct so i've appointed you right and it's your responsibility he's welcome to observe right i understand it's not a capital case it doesn't warrant to lawyers that's a c j rule that is a c j really so you're saying she had to understand do you were going to do a pro bono that's absolutely on it i think because even though she's saying that you're the one that's appointed and so the court has appointed you mr warner that's fine he's welcome to purchase a paid observer but not to question or do any of the activity in the case right mr warren says i've done one or two trials in this case before writing myself right ok is clear that she knew she was designed your client's request to have you as a free attorney appear on her behalf your honor what i'm saying is as it was arranged she says i am going to have you're the one who's appointed here ok right and he says he's on the c j a pal you're saying well that that's supposed to indicate to are that you're qualified i understand that may be why he said it was ok but she treated as at least as my reading as interrupted your partner can i get through michael i'm sorry your honor yes i'm trying to give you my reading of the transcript you invited as to read i'm trying to put myself in judge position so looking at it and strewing the inferences maybe i'm totally wrong and giving her credit for something she wasn't thinking but it appears to me that there was a good chance she thought you both wanted to discharge the c g a function and therefore she would be getting builds from your firm that would be submitted for your time and that you would therefore you know there's nothing in the record at this point no volunteer and by mr warner to say he's going to work for free he's going to do this pro bono we're not going to charge ever file anything with the court to say a there's a sixth amendment right and b it was to clarify mr my partner's not going to be charging  i'm ok hopefully just meant to be a little generous i can finish this hypothetical because you mention that you just came out of the federal public defender softness let me assuming that the judge knew that you were going to come in pro bono so you are  s office you've got an indigent client who is resisting the advice and direction of the case that you want to move your client towards through jailhouse lawyer type situation your client tells you he's can associate in attorney pro bono and you tell the court i'm not comfortable with the situation i'm not going to be able to work with this person what happens in that instance because you're advocating a sixth amendment constitutional right to associate in pro bono counsel at the same time exercising the right to have a point that counsel with the court then make your client elect to go with the public defender's off opponent counsel or would the court have to go to the c j panel and then go down the list until an attorney is found who work with this lawyer coming out of nowhere what would happen in that instance  it's an actual hypothetical in that instance we would go to the typical fact of assistance conflict the germination and if it was in fact decided that there was a cause such a conflict of interest that i couldn't work with the public defender or with the previously assigned c j counsel and the court made that finding that there was a conflict and it couldn't work out then yes what do you mean by that because you're saying it's the defendant's right to exercise that constitutional right because we've not your hypothetical assumes a fundamental conflict with the if that old defenders lawyer that's the reason he's associating or she's associating in another attorney so we've now established the underlying conflict which then gives rise to the duty under the sixth amendment to appoint a second or a different counsel there's now a conflict between primary counsel in your hypothetical your honor federal defenders and the client so in that case yes federal defender should be relieved musketeer let if there's no ahead of time but that would be no problem the lawyer wants the client wants to appoint a substitute in an additional help or not and this happens all the time in the public federal defender's office and in your honour's all see the cases every federal defender trial that i ever did save one i was with two lawyers i mean it happens all the time every almost every government case in almost every federal defender case is tried with two lawyers and if i could just have a minute to and it was my fault that she misunderstood or mr warren's fall the remedy remember this is not the court six men are right it's miss gilmore so the remedy is very easy mr burstein if miss gilmore wants you to participate you can participate you're not getting paid what she can't do is what she did from the off the cuff shut it down and say you can't participate you can sit there but you can't participate when asking for an appointment because she said the portion of the  just take that operating something it's still miss kilmore sixth amendment right she doesn't get to say you can't participate she can say she can feel you are not creating on your own a constitutional deal you're asking for a new trial which would never have occurred in this situation had you not come into the situation you have a partner who is arguably financially conflicted says i want you to come in and there may or may not have been a misunderstanding with  shop but taking your hypothetical say she totally misunderstood she thought you wanted to be paid you're saying that that very fact creates a denial of sixth amendment rights to a lawyer and you're entitled to a new trial every every defense lawyer in the country would do that in a and trade off witnesses or split up argument or the like we do it in this court on appeal you know we don't just three we let two counsel judge's ability to control his or her court room yes the difference with the civil cases and with this court yes it conflicts civil cases there is no sixth amendment right interest van that i know i know  case on and you know the right of the district court to control has to yield to the sixth amendment that's what lane fiesta from the second circuit i understand you but what's the rationale what you're saying the sixth amendment goes down to the level of a court billet to control the presentation the orderly present correction of evidence and argument in question and it can be triggered by someone with it at least on the face of it a financial conflict of interest no evidence in the record that the defendant herself actually knows or ask for the second lawyer right your honor if there are problems with that state of the record we can send it back for a hearing and i can we can testify under oath truth serum lie detector that this was a pro bono matter but i just judge fisher you raise and a really like to come back to it if misc if these two lawyers which is how is going to start if i had if miss gilmore had financial means and she had hired me and somebody else and we both wanted to do the trial and we are going to split up the witnesses there is no question whatsoever that we could have done that and distinguish between in this context when assuming that it was pro bono for the indigent person it's not only unfair it's unconstitutional you're asking us to make new law right i'm asking to expand the current law an open open question ok it doesn't exist ok this is a very small hybrid situation with one appointed and one pro bono and i understand the record could be better on pro bono i can see the record could be better on pro bono but it is no less true because there was no application made for additional funding when you came to the court that day was it your intention to create a new law no better situation or it was my tension to try the case ok and your appointed partner what was he go yes yes that was the whole point we were going to try the case together i was going to second chair the trial i would have done opening he would have done closing i would have done half the witnesses typical of criminal cases in th impact the ball i don't think that's not how i understood the argument because if you have a point at council and you can afford to retain counsel than that retained counsel has to substitute and then take over the case but the rule that assign or stand that defense counsel's advocating for is that when you have appointed counsel and it's clearly established that there is no counsel of choice in that situation and you have somebody who is willing to volunteer his or her services indigent defendant is entitled in the constitution to have a lawyer is there any case that says that that defendant is entitled to have any number of lawyers to judge fisher's question to your posing counsel to the effect that a trial judge has to control the courtroom this case judge hough she appointed  the court gets surprised there's no discussion on the record of whether it's going to be payment or not but because a reference to c j a presumption is probably that mr warren has a partner partners usually share profits in some way does that bear on the right mr moore warren on behalf of ms gilmore to request a second lawyer so i thought how so i understand first of all you have somebody who at least on the surface of it has a conflict of interest to mr warren arguably was going to get paid for some work that his partner did if he his partner was getting paid as well so those that have any bearing on his ability to imply at least state that ms gilmore wants him as a second lawyer perhaps a conflict of ours perhaps and i think that it's important to note that the only thing on the record here at all is that mr warren wanted to try case with his new colleague and i think it might be a different situation if there were some national want to take over in the record and as you point out if this conflict didn't exist and we should stick to the record in this case right second circuit recognize in its case where it was denial of retained can co counsel second chair or whatever to cross examine a particular with the speaking role with the witness which is precisely this case and the second circuit said invoke the sixth amendment saying you can't do that as the trial judge i'm not sure i'm persuaded by that it's you know so i can circuit i take it seriously but so and any of the predicate for the argument here is that there is no conflict because there won't be any double billing assume that the case  what is the rationale for saying that mr burst and can't who apparently could have sat out second chair literally in the courtroom wasn't forced huff in this case a sane mr burgess and could see with mr warren but he couldn't stand up and make objections they couldn't double team on objections for a witness for example for the court to deny ms gilmore the benefit of two experience attorneys in fact one may have more experience i don't know  somebody has come right out of the day you know obviously has experience what is the rationale for saying that if there's no impact on the public i understand that he said they're extending that case principle to an indigent lawyer who is not paying for the j attorney and won't pay for the second attorney nor will the public because they want to charge for it it's all free i mean the supreme court in this more perhaps could argue that she was somehow denied the effective assistance of counsel because she was she had one lawyer instead of two but of course that requires a showing of prejudice which she can't she has not tried to make air and cannot show  the reason that she frames this as a right to counsel of choice is that because that is of the two sixteen the rights that is the structural  there's no right to have this appointed lawyer that's right to do a financial affidavit ahead of time and there has to be a finding that you don't qualify if you later are found to qualify the government cost back the money so this really is the situation of indigent defendant appointed lawyer bono lawyer i can see the record is not as good as it could be but i i want the legal issue here is clear and judge fisher you kept asking for an explanation as to why what's the rationale common law where we're in the business of not making decisions but making reasoned decisions there is no rationale for denying the engine defendant the additional assistance of voluntary counsel now more adequate representation because your honor it's not that's just it's under law and even gonzales lopez where the second lawyer was dismissed it's not it's the right to have your defense team and that this is not about effective assistance it's a derived from the right to control your defense it's a different part of the sixth amendment and the last thing i'd like to just if i could is to address you directly on this conflict of interest ok because warren he broke his time just like when i ask any lawyer on the cd or federal defenders to help me with a case they don't kill for their time i bill for mine so judge smith to the extent you have concerns about a conflict of interest i'm here to tell you that that would wouldn't did not happen would not happen and would never happen one just so you so you can sleep well just know i'm not accusing you or your partner of this but i see a lot of securities law and i'm very steeped in conflict of interests ok and the reality is there is a human element to this yes you're human beings have to make a living and when they're lawyers they make a living by selling their legal services and if you have one lawyer who is a partner and partners by definition share some of those profits and that partner can bring someone else in in a case without the consent of the judge just based on an  a defendant there is an ability potentially to take money from the public fish from someone who has a conflict of interest that really bothers me not you i'm not talking about warren i'm not talking about you you're honest decent people hardworking help the system a great deal but you can understand why i'm struggling with this this is a very tough issue for me but it's in the sixth amendment context it's just not going to arise your honor because we have the these are purely indigent criminal defendants that we're talking about and that is it and the judge can always say yes second lawyer you can stay but you're not getting ok but what i see these all the time proton carders afterwards and they come in and they say you know that what the court doesn't control is who stands at the podium and cross examines who makes the opening statement in a six them then the nominee a civil case but just for in a criminal case that the court does not control  interested in this case and it is a very interesting challenging issue so thank you both for your presentation thank you don thank you for your patience in the court jumping all over you know you're on i appreciate the discussion again thanks to you got to