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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA *

 *

 *

vs. * 

 * CRIM. CASE No. 08-00327-CG

 *

JESSE S. HAGGARD, et al., *

 *

ORDER

 

This action is before the Court on the Government’s Motion to

Disqualify David York and Chris Coumanis as counsel for Defendant

Jesse S. Haggard (Doc. 361). Defendant filed a response in

opposition to the Government’s Motion, along with the affidavits of

David York and Chris Coumanis. An evidentiary hearing was

conducted on December 17, 2009. At the hearing, counsel for the

Government advised that he would not be offering any evidence in

support of the Government’s motion. Counsel for Defendant relied

upon the affidavits submitted with his response. Based upon a

careful review of the parties’ briefs, and the representations of

counsel at the evidentiary hearing, the Government’s Motion to

Disqualify Counsel is DENIED.

I. Background

In its motion, the Government alleges that Mr. York is the

former United States Attorney for this District, and that during

his tenure as United States Attorney, he personally approved and

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Although the Government indicated that evidence of Mr.

York’s personal approval of the investigation was available for

the Court’s in camera inspection, no such evidence was ever

presented. Moreover, at the hearing, the Government declined to

offer any evidence in support of the contentions in its brief.

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was involved in the Organized Crime Drug Enforcement Task Force

Applied Pharmacy investigation (hereinafter “steroid

investigation”), which led to the instant indictment. According to

the Government, Assistant United States Attorney Donna Dobbins was

a member of Mr. York’s leadership team, and the team provided

weekly updates to Mr. York regarding their activities, including

the steroid investigation.

The Government relies on Title 18 U.S.C. § 207 (a)(1) in

support of its contention that Mr. York is precluded from

representing Defendant Haggard in this case. The Government

contends that because Mr. York approved the steroid investigation

and was regularly briefed by Ms. Dobbins about the status of the

steroid investigation, he was personally and substantivally

involved in this case and is disqualified under the provision of

§ 207.1 

The Government further contends that Mr. York’s

disqualification is mandated by Rules 1.9 and 1.11(a) of the

Alabama Rules of Professional Conduct. The Government notes that

Rule 1.9 bars a lawyer who formerly represented a client from

thereafter representing another person in the same or substantially

related matter where the interests of the parties are materially

adverse, and Rule 1.11 bars a former government attorney from

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handling a case in which he had personal and substantial

participation.

With respect to Mr. Coumanis, the Government alleges that

because Mr. York is precluded from representing Defendant Haggard,

his partner, Mr. Coumanis, is also precluded from representing this

Defendant particularly where no precautions were taken early on to

screen Mr. York from any involvement in the defense of Defendant

Haggard. The Government further alleges that because Mr.

Coumanis’s former law partner, Mr. Briskman, represented Dr. Pyle,

a co-defendant who is expected to be called as a witness in this

case, during the time that Mr. Coumanis was associated with Mr.

Briskman’s firm, Rules 1.9 and 1.10 preclude Mr. Coumanis from

representing Defendant Haggard in this case.

Defendant Haggard contends that the Government has failed to

demonstrate that Mr. York and Mr. Coumanis should be disqualified.

According to Defendant, Mr. York does not recall giving any advice

or direction with respect to the steroid investigation, nor does he

remember being briefed on the case, or having any involvement in

the case. Defendant further asserts that there is no evidence that

he was ever a target of the steroid investigation or that Mr. York

was ever briefed on the case while in office. Defendant also

asserts that the documents referenced by the Government do not shed

any light on this issue, and that the Government has failed to

establish that Mr. York participated personally and substantially

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in the steroid investigation so as to justify him being

disqualified pursuant to § 207(a).

Defendant further asserts that Rule 1.9(a) of the Alabama

Rules of Professional Conduct does not bar Mr. York from this case

because there is no evidence that Mr. York had any involvement in

the steroid investigation. Defendant also argues, with respect to

Mr. Coumanis, that because he acquired no actual knowledge of the

case during his former partner’s representation of Dr. Pyle, and

does not recall ever participating in the case, disqualification

under Rule 1.9 and 1.10 is not appropriate. Finally, Defendant

argues that Rule 1.11 is not applicable because Mr. York had no

personal and substantial involvement in this case.

II. Legal Authority

The Sixth Amendment guarantees that “[i]n all criminal

prosecutions, the accused shall enjoy the right .....to have the

Assistance of Counsel for his defence.” U.S. Constit. Amend. VI;

United States v. Campbell, 491 F. 3d 1306, 1310 (llth Cir. 2007).

“[A]n essential part of that right is the accused’s ability to

select the counsel of his choice.” United States v. Ross, 33 F. 3d

1507, 1522 (llth Cir. 1994) Consequently, “a criminal defendant

has a presumptive right to counsel of choice,...and courts should

hesitate to disqualify defense counsel.” Id. at 1522-23 (citing

Wheat v. United States, 486 U.S. 153, 164, 108 S. Ct. 1692, 100 L.

Ed. 2d 140 (1988)). The right to counsel of choice, however, is

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not absolute. Wheat, 486 U.S. at 159, 108 S. Ct. at 1697. “In

determining whether or not to disqualify defense counsel, the court

must balance two Sixth Amendment rights: 1) the right to be

represented by counsel of choice and 2) the right to a defense

conducted by an attorney who is free of conflicts of interest.”

Ross, 33 F.3d at 1523 (citing Wheat, 486 U.S. at 160). 

Federal courts have an independent interest in ensuring that

criminal trials are conducted within the ethical standards of the

profession and that legal proceedings appear fair to all who

observe them. Wheat, 486 U.S. at 160. Thus, the Supreme Court has

held that the district courts must be afforded substantial latitude

in ruling on disqualification issues, not only in cases where there

is an actual conflict, but also where there is a potential

conflict. Id. at 163. The district court must recognize a

presumption in favor of the defendant’s counsel of choice, but that

presumption may be overcome by a demonstration of an actual

conflict or a serious potential for conflict. Id. at 164.

III. Discussion

As noted supra, in the case at hand, the Government seeks to

disqualify Mr. York on a number of grounds, including §207(a),

which provides in relevant part:

Any person who is an officer or employee...of the 

 executive branch of the United States....and who, after

 the termination of his service or employment with the 

 United States...knowingly makes, with the intent to

 influence, any communication to or appearance before

 any officer or employee of any department, agency, court

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18 U.S.C. § 207(a)(2) varies from § 207(a)(1) in that it

contains a two year ban, as opposed to the permanent ban

contained in § 207(a)(1). 207 (a)(2) provides, in pertinent 

part, as follows:

[W]ithin 2 years after the termination of his or her service

[a former government supervisory attorney may not] knowingly

make, with the intent to influence, any communication to or

appearance before any officer or employee of any department,

agency, court, or court-martial of the United States...on behalf

of any other person. . .in connection with a particular matter- -

-

(A) in which the United States...is a party or has a direct

and substantial interest,

(B) which such person knows or reasonably should know was

actually pending under his or her official responsibility as such

officer or employee within a period of 1 year before the

termination of his or her service or employment with the United

States..., and

( C) which involved a specific party or specific parties at

the time it was so pending.....

18 U.S.C. § 207(a)(2). Under § 207(a)(2), it is not necessary

that the former government attorney have participated personally

and substantially in the criminal investigation. Under this

provision, it suffices if the matter was under his general

supervisory authority and was actually pending at least one year

before the termination of his government service.

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 or court-martial of the United States . . . on behalf of any

 other person . . . in connection with a particular matter- -

 (A) in which the United States ..is a party or has a direct

 and substantial interest,

 (B) in which the person participated personally

 and substantially as such officer or employee, and 

 ( C) which involved a specific party or specific parties

 at the time of such participation, shall be punished

 as provided in section 216 of this title1.

Under § 207(a), a former government employee is disqualified

only if the particular matter involves the same “specific party or

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parties.” United States v. Clark, 333 F. Supp. 2d 789, 794 (E.D.

Wis. 2004). In addition, a former employee is disqualified under

this provision only if, while working for the Government, he

participated in the matter “personally and substantially.” Id.

(citations omitted.) The phrase “personally and substantially” is

defined in 5 C.F.R. § 2637.201(d), as follows:

The restrictions of section 207(a) apply only to

those matters in which a former Government employee had

“personal and substantial participation”, exercised

“through decision, approval, disapproval, recommendation,

the rendering of advice, investigation or otherwise.” To

participate “personally” means directly, and includes the

participation of a subordinate when actually directed by

the former Government employee in the matter.

“Substantially,” means that the employee’s involvement

must be of significance to the matter, or form a basis

for a reasonable appearance of such significance. It

requires more than official responsibility, knowledge,

perfunctory involvement, or involvement on an

administrative or peripheral issue. A finding of

substantiality should be based not only on the effort

devoted to a matter, but on the importance of the effort.

While a series of peripheral involvements may be

insubstantial, the single act of approving or

participation in a critical step may be substantial. It

is essential that the participation be related to a

“particular matter involving a specific party.” 

Clark, 333 F. Supp. 2d at 794.

In the case at hand, the Government has alleged in its brief

that the steroid investigation that lead to the indictment of

Defendant Haggard and others commenced during the period that Mr.

York served as the United States Attorney for the Southern District

of Alabama, that he approved the investigation, and received

periodic updates regarding the status of the investigation. Aside

from these assertions in its brief, the Government has not produced

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an iota of evidence in support of its assertions. Mr. York, on the

other hand, has filed an affidavit in which he asserts, under oath,

that he was appointed U.S. attorney for the Southern District of

Alabama in 2001, that he served in that position until September

2005, that he has no recollection of participating in any review,

evaluation or recommendations regarding Defendant Haggard, that he

does not recall Defendant Haggard being the target of any

investigation while he served as U.S. attorney, that he does not

recall giving any advice or direction to Ms. Dobbins or case agents

regarding the steroid investigation or making any strategy

decisions, that he did not issue any subpoenas or do any

substantive work on the case, that he does not recall ever

receiving any substantive briefings regarding the steroid

investigation, and that if any such briefings occurred they would

have been a general and non-specific. Based upon the record before

the Court, the undersigned finds that the Government has failed to

present evidence that establishes that Mr. York participated

“personally and substantially” in the steroid investigation and is

thus subject to the permanent ban set forth in § 207(a)(1). In

fact, the Government has not produced any evidence that suggests

when the steroid investigation actually commenced, or the extent of

Mr. York’s involvement in said investigation. Accordingly, the

Government’s motion to disqualify Mr. York under § 207(a)(1) is

denied. See, United States v. Tapp, 2008 U.S. Dist LEXIS 8848

(S.D. Ga. Feb. 6, 2008)(where government produced evidence that

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Attorneys who appear in this Court are bound by Local Rule

83.5(f), which provides in pertinent part that all attorneys

appearing here shall read and abide by “the ethical limitations

and requirements governing the behavior of members of the Alabama

State Bar.”

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former United States Attorney held position during time that his

client was under investigation, and that his subordinates were

actively involved in investigation, §207 (a)(2)’s two year ban

necessitated that former United States Attorney be disqualified.)

The Government also contends that Rules 1.9 and 1.11(a) of the

Alabama Rules of Professional Conduct preclude Mr. York from

representing Defendant Haggard in this case1

. Rule 1.9 provides as

follows:

A lawyer who has formerly represented a client

in a matter shall not thereafter:

(a) represent another person in the same or 

substantially related matter in which that person’s

interests are materially adverse to the interests of

the former client unless the former client consents

after consultation; or

(b) use information relating to the representation

to the disadvantage of the former client except as

Rule 1.6 or Rule 3.3 would permit or require with

respect to a client or when the information has become

generally known.

Rule 1.9, A.R.P.C. A party moving for an attorney’s

disqualification under Rule 1.9 bears the burden of proving the

existence of a conflict of interest. . . . A former client seeking

disqualification for the conflict addressed in Rule 1.9 must

demonstrate (1) that it “had an attorney-client relationship with

the attorney the former seeks to disqualify and (2) that the

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attorney represented the former client in a (3) substantially

related matter.” Ex Parte Regions Bank, 914 So. 2d 843, 847 (Ala.

2005)(citations omitted.) The evidence in this case establishes

that Mr. York was the United States Attorney for this District from

2001 through September 2005, that a steroid investigation was

undertaken by the local United States Attorney’s Office, and that

the investigation lead to the issuance of an indictment against

Defendant Haggard and others in 2008, nearly three years after Mr.

York left office. Mr. York contends that he does not recall any

investigation during his tenure regarding Defendant Haggard, and

that he does not recall have any involvement in the steroid

investigation. As noted supra, the Government has not produced any

evidence from which it can be determined when the steroid

investigation commenced, let alone evidence which establishes that

the investigation commenced during Mr. York’s tenure, and the

extent of his involvement in said investigation. Accordingly,

based upon the record before the Court, the undersigned finds that

the Government has not met its burden of establishing a conflict

under Rule 1.9.

The Government has likewise failed to establish a violation of

Rule 1.11. Rule 1.11 provides as follows:

(a) Except as law may otherwise expressly permit,

 a lawyer shall not represent a private client in

 connection with a matter in which the lawyer 

 participated personally and substantially as a public

 officer or employee, unless 

(1) the disqualified lawyer is screened from any

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The Government’s reliance on Ala. Bar Opinion 1992-18 is

misplaced. In that opinion, the Bar opined that Rule 1.11

prohibited the former DA from representing a defendant where the

DA personally participated in the investigation phase of the case

as well as with some follow-up proceedings. In this case, the

Government has not established when the steroid investigation

commenced, let alone that Mr. York played any role in said

investigation.

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participation in the matter and is apportioned no part 

of the fee therefrom and

(2) written notice is promptly given to the 

appropriate government agency to enable it to 

ascertain compliance with the provision of this rule.

Rule 1.11, A.R.P.C. As noted supra, the Government has failed

to establish when the steroid investigation commenced and has

further failed to establish that Mr. York participated personally

and substantially in the investigation during the period he served

as United States Attorney for this District. Accordingly, based

upon the record before the Court, the undersigned finds that the

Government has not met its burden of establishing a conflict under

Rule 1.11.2

The Government has also failed to establish that Mr. Coumanis

has a conflict. The Government asserts that because Mr. York is

precluded from representing Defendant Haggard, then his partner,

Mr. Coumanis is also prohibited from representing Defendant,

particularly where no precautions were taken to screen Mr. York

from the case. However, the Government has failed to establish

that Mr. York is prohibited from representing Defendant Haggard in

this case; thus, there is no basis for imputing any alleged

conflict to Mr. Coumanis. Additionally, the Government has failed

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to establish that Rule 1.10(b) is applicable to this case. Rule

1.10(b) provides as follows:

When a lawyer becomes associated with a firm, the firm

may not knowingly represent a person in the same or

substantially related matter in which that lawyer, or a

firm with which the lawyer was associated, had previously

represented a client whose interests are materially 

adverse to that person and about whom the lawyer has

acquired information protected by Rules 1.6 and 1.9(b) 

that is material to the matter.

Rule 1.10(b), A.R.P.C. In Alabama State Bar Opinion 1993-03, it

is noted that “Paragraphs (b) and ( c) [of the Comment to Rule

1.10] operate to disqualify the firm only when the lawyer involved

has actual knowledge of information protected by Rules 1.6 and

1.9(b). Thus, if a lawyer while with one firm acquired no

knowledge of information relating to a particular client of the

firm, and that lawyer later joined another firm, neither the lawyer

individually nor the second firm is disqualified from representing

another client in the same or a related matter even though the

interests of the two clients conflict.”

In this case, the evidence before the Court establishes that

Mr. Coumanis was formerly associated with the firm of Briskman and

Binion, P.C., and that while practicing with that firm, Mr.

Coumanis’ former partner, Mr. Briskman represented Dr. Pyle, a coDefendant in the instant case. Dr. Pyle has entered a guilty plea

and is expected to testify as a witness for the Government. Mr.

Coumanis has submitted sworn testimony that he never represented

Dr. Pyle, never worked on her case, and that he never acquired any

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information regarding her case while associated with the firm of

Briskman and Binion, P.C. In addition, at the evidentiary hearing,

Mr. Briskman represented to the court that Mr. Coumanis did no work

on the case, that Mr. Coumanis had no involvement in the

representation of Dr. Pyle, and that Dr. Pyle had authorized him to

waive any potential conflict with respect to Mr. Coumanis. Based

on the evidence before the Court, the undersigned finds that the

Government has failed to establish a conflict under Rule 1.10 (b).

The record is completely devoid of any evidence that Mr. Coumanis

had involvement in the representation of Dr. Pyle, or that he

acquired any material adverse to Dr. Pyle. Accordingly, the

undersigned finds that the Government has not met its burden of

establishing a conflict under Rule 1.10(b).

For the reasons set forth above, the Government’s Motion to

Disqualify Counsel is DENIED.

DONE this 29th day of December, 2009.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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