United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski United States District Judge
Before the court is a motion to withdraw filed by R. Darren Bostic, defense counsel for defendant Steven Maurice Pemberton. ECF No. 288. Mr. Bostic claims that communication with Pemberton has broken down such that he can no longer provide constitutionally effective representation for his client. Mr. Bostic also notes that he is a potential fact witness in the pending re-trial of this matter, which is currently scheduled to begin on March 21, 2016. As such, Mr. Bostic believes he is ethically prohibited from continuing as counsel and requests leave to withdraw so that new counsel can be appointed. The court held an evidentiary hearing on March 2, 2016, and heard from both Pemberton and Mr. Bostic. The court then gave counsel leave to file supplemental briefs . to address the ethical conflict raised by Mr. Bostic.
I. Breakdown in Communication
Both Pemberton and Mr. Bostic agree that they can converse with one another about the charges in this case, and have discussed trial strategy on multiple occasions. Moreover, Mr. Bostic successfully represented Pemberton during the prior trial in this matter, and no substantial personal conflicts have arisen that would prevent Mr. Bostic from providing an effective defense in the pending re-trial. For these reasons, and for those additional reasons stated on the record during the March 2 hearing, the court finds that there is no breakdown in communication between Pemberton and Mr. Bostic that requires appointment of new counsel in this case.
II. Witness-Advocate Rule
During the March 2 hearing, Mr. Bostic raised a related ethical concern about his continued representation of Pemberton. During the first trial, the government introduced a Statement of Facts signed by Pemberton that described his role in the credit card conspiracy alleged in the second superseding indictment. This Statement of Facts was prepared by the government, signed by Pemberton and Mr. Bostic, and filed with the court in anticipation of a possible guilty plea. Pemberton later gave notice that he no longer intended to plead guilty, and wished to proceed to trial. Nevertheless, the Statement of Facts was a key government exhibit. Further, while counsel for the United States represents that he does not intend to introduce the Statement of Facts in his casein-chief during the March 21 trial, he acknowledges that the document may be used to impeach Pemberton if he chooses to testify.
Mr. Bostic believes his involvement with the Statement of Facts may require him to testify as a fact witness on Pemberton's behalf. Pemberton maintains that he signed the Statement of Facts not because he was guilty of the charged crimes, but rather because he feared receiving a higher sentence at trial. Pemberton testified to this fact during the first trial, and is expected to testify similarly during the March 21 trial. Mr. Bostic believes he can corroborate Pemberton's testimony and confirm that Pemberton claimed innocence even while signing the Statement of Facts. Because Mr. Bostic is a potential fact witness for the defense, he believes he is ethically prohibited from also serving as trial counsel. The court agrees.
As the Fourth Circuit notes, "[t]he roles of witness and advocate are fundamentally inconsistent and when ... a lawyer ought to testify as a witness for his client, he must as a rule withdraw from advocacy." Int'l Woodworkers of Am. v. Chesapeake Bay Plywood Corp., 659 F.2d 1259, 1273 (4th Cir. 1981). "Where the question arises, doubts should be resolved in favor of the lawyer testifying and against his becoming or continuing as an advocate." Id. at 1273 n.21 (citing Ethical Consideration 5-9). Moreover, "[a]n actual conflict of interest exists when the attorney ha[s] independent information about facts in controversy relating to his client and would, therefore, be faced with the possibility of testifying." United States v. Franklin, 177 F.Supp.2d 459, 467 (E.D. Va. 2001) (citing United States v. Urbana, 770 F.Supp. 1552, 1559 (S.D. Fla. 1991)).
This same principle is reflected in state law. For example, the Supreme Court of Virginia has cautioned that "when it becomes necessary for counsel to take the witness stand [on] behalf of his client, he shall withdraw and leave the trial of the case to other counsel.'" Fish v. Com., 208 Va. 761, 765, 160 S.E.2d 576, 579 (1968) (quoting Canon 19 of the Canons of Professional Ethics). Further, Rule 3.7 of the Virginia Rules of Professional Conduct provides:
(a) A lawyer shall not act as an advocate in an adversarial proceeding in which the lawyer is likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
(b) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer may be called as a witness other than on behalf of the client, the lawyer may continue the representation until it is ...