Petition — Wittenberg v. United States

Pe i cet ik

OCT 23 1980

MICHAEL RODAK, JR. CLERK

——

in the Supreme Court of the United States

October Term, 1980

SHELDON S. WITTENBERG and

GALLON, KALNIZ & IORIO, CO., L.P.A.,

Petitioners,

Vs.

UNITED Si ATES OF AMERICA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CiRCUIT

JACK GALLON

(Counsel of Record)

3161 North Republic Boulevard

Toledo, Ohio 43615

(419) 535-1976

Counsel for Petitioners

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

QUESTIONS PRESENTED

1. Is an order granting a disqualification motion which

precludes a law firm from representing multiple witnesses

before a Federal Grand Jury appealable as a final decision

within the meaning of 28 U.S.C. Section 1291 (a basic

question on which the Court of Appeals will be divided if

the lower court’s ruling stands) ? (See Point I, infra.)

2. Whether the apparent inconsistency between the

Sixth Circuit’s decision in the instant case and its decision

in General Electric Company v. Valeron, 608 F.2d 265 (6th

Cir. 1979) is of such a nature as to create a real conflict

in the Sixth Circuit as to the law concerning the granting

of disqualification motions? (See Point II, infra. )

3. Whether the Sixth Circuit’s failure to grant the

Petitioners jurisdiction under 28 U.S.C. Section 1291 is in

direct conflict with the decisions of other Courts of Ap-

peal? (See Point I, infra.)

4. Whether the District Court abused its discretion

in disqualifying Sheldon S. Wittenberg and the law firm

of Gallon, Kalniz & Iorio, Co., L.P.A. from representing

multiple witnesses before the Grand J ury? (See Point III,

infra.)

LIST OF ALL PARTIES

The petitioners are Sheldon S. Wittenberg and the law

firm of Gallon, Kalniz & Iorio, Co., L.P.A.

The respondent is the Federal District Attorney for the

Northern District of Ohio, Western Division representing

the United States of America.

Ill

TABLE OF CONTENTS

RT ERIE Sa es OS SOOT I

REI RENEE PR Ne OO I

RRR SP ck SE en OT aE 1

EET RSS SRR CLONE Re PORE Ae ST 2

Statutory and Constitutional Provisions Involved ........ 2

st ncaualdatsbbbaecbeasachent 2

Reasons for Granting the Writ ..................-...-c-cssscscssesseesee: 4

I. The Decision Below Conflicts With the De-

cisions of Other Courts of Appeals As to the

Proper Interpretation of 28 U.S.C. Sec. 1291... 4

II. The Decision Below Conflicts With Earlier

Decisions in the Sixth Circuit .20000000000 0. 5

III. The District Court Abused Its Discretion in

Disqualifying the Petitioners from Represent-

SI TERI soclisnctcnischasiennsessotntnnessotmctensstinasesonnee 7

IT i sce ccrtssaccitinintgscitinapehsosscnsontevnteasveesstcnshsbootantnciotacse 11

: sap pendix:

Opinion and Order of the United States District

Court (November 9, 1979) .......cccccccceceesseeseeeeeeeeeeeee Al

Opinion of the Court of Appeals for the Sixth Cir-

EE GIG, ROIIPD onernscosscnscssssocseconrsessensncsnssesesnctncns Al8

Order of the United States Court of Appeals for the

Sixth Circuit Denying Petition for Rehearing

IS TEIN ci.Ssctceecssccosesensensecnsincnincnsdssecsscehosvenesoveres A20

SEE AE TI <coceenrosesnsccsasevasssespenasesececresencosossssenscasens A21

_ PREVIOUS PAGE WAS BLANK |

. °

TABLE OF AUTHORITIES

Cases

Abraham v. United States, 549 F.2d 236 (2d Cir. 1977) 9

Brown v. Miller, 286 F.2d 994 (D.C. Cir. 1923) ........... 4

Cohen v. Beneficial Industrial Loan Corp., 337 U.S.

eee «RAEN» “serasccans Oindaadhienieb aed actin Sores choeenndadinsiadecistabese 4

Community Broadcasting of Boston, Inc. v. FCC, 546

ae, Se es Rs BED Nethtcsiicencipeme teen 5

Cord v. Smith, 338 F.2d 516 (9th Cir. 1964), clarified,

Se Fae GER CG CI, TIE ici reseiectcccnaivenccdconens 5

Faretta v. California, 422 U.S. 806 (1975) oo. 9

General Electric Company v. Valeron Corporation, 608

fo Fk ee, rine ae 5, 6

Glasser v. United States, 315 U.S. 60 (1942) ooo. 9

In re April, 1977 Grand Jury Subpoenas, 584 F.2d 1366

Pe aaa one rd 6

In re Gopman, 531 F.2d 242 (5th Cir. 1976) ou... 4

In re Grand Jury Investigation, 436 F. Supp. 818 (W.D.

Pa. 1977), aff'd per curiam by equally divided court,

576 F.2d 1071 (3rd Cir.) (en banc), cert. denied, 439

Sek TE, CED nfs ctntbabicobaiiaiemeee as ees) 7, 8,9

In re Investigation Before April, 1975 Grand Jury,

Onn Fine OOO CAG, Cie; WI) on cee 4, 8,10

In re Investigation Before February, 1977, Lynchburg

Grand Jury, 563 F.2d 652 (4th Cir. 1977) ............ 4, 7,10

In re Taylor, 567 F.2d 1183 (2d Cir. 1977) ooo. 8

In the Matter of the Special February 1977 Grand

Jury, 581 F.2d 1262 (7th Cir. 1978) occ. 4, 8,9

Johnson v, Zerbst, 304 U.S. 458 (1938) occ. 9

Matter of Grand Jury Empaneled January 21, 1975,

OW LORD CEG COR, RVG aiccceceasiccschescensececssscsees 4, 8,9

Vv

Melamed v. ITT Continental Baking Company (Mela-

med I), 592 F.2d 29 (6th Cir. 1979) 000000... seiko 5

Melamed v. ITT Continental Baking Co., (Melamed

ome Pf A Eg sk 2 Ee ee Te. 5,6

New Mexico v. Aamodt, 537 F.2d 1102 (10th Cir. 1976) 4

Pirillo v. Takiff, 462 Pa. 511, 341 A.2d 896 (1975),

aff'd per curiam, 466 Pa. 187, 352 A.2d 11, appeal

dismissed and cert. denied, 423 U.S. 1083 (1976) ....8, 10

Silver Chrysler Plymouth, Inc. v. Chrysler Motors

Corp., 496 F.2d 800 (2d Cir. 1974) oe .eececcceccesceceeeee 4

The Firestone Tire & Rubber Company v. Risjord,

No. 79-1420 (U. S. Supreme Court, 8/1/80), 612

a (| RRR 0 LE RC ie 5

United States v. Armedo-Sarmiento, 524 F.2d 591

| Ee Un BORIS 20.70 Nc. 2). ee eT y

United States v. Clarkson, 567 F.2d 270 (1977) ............ 7

United States v. Garcia, 517 F.2d 272 (5th Cir. 1975)

slice cian tapadinnenitatinniiinatiingealadi atta ot te es 4, 7,9, 10

United States v. Liddy, 348 F. Supp. 198 (D.D.C. 1972) 10

United States v. Maher, 550 F.2d 1005 (5th Cir. 1977) 10

United States v. Swanson, 509 F.2d 1205 (8th Cir. 1975) 10

Statutes and Rules

Pe aay SO Be ED © Ghai el a 8

BFE | 0 Greene at amet ORO es PUERCO 2

ERIN \- putidlenasncilipitinintaslaesasisi cea sah an 2,4

Others

ABA Code of Professional Responsibility DR 5-105

ae | RNAS er oP Ce TN or Fv LE Oe 9

Comment, The Appealability of Orders Denying Mo-

tions for Disqualification of Counsel in Federal

Courts, 45 U. Cuic. L. Rev. 450 (1978) 000... 7

a ai

In the Supreme Court of the United States

October Term, 1980

SHELDON S. WITTENBERG, and

GALLON, KALNIZ & IORIO, CO., L.P.A.,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

OPINIONS BELOW

The opinion and order of United States District Judge

Nicholas Walinski (Northern District of Ohio) on the

Government’s Motion to Disqualify Attorney Sheldon S.

Wittenberg and the law firm with which he is associated,

Gallon, Kalniz & Iorio is reported at 480 F. Supp. 162,

and is reproduced in the Appendix at page Al. The

opinion of the Court of Appeals is unreported and appears

in the Appendix at page Al8. Also, the Court of Appeals

decision denying the Petitioners’ Motion for Rehearing is

reproduced in the Appendix at page A20.

JURISDICTION ,

The Final Judgment of the Court of Appeals was

entered on July 25, 1980. The jurisdiction of this Court

is invoked pursuant to 28 U.S.C. Section 1254(1).

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

United States Code, Title 28

Section 1291. Final decisions of district courts

The courts of appeals should have jurisdiction of ap-

peals from all final decisions of the district courts of

the United States, the United States District Court for

the District of the Canal Zone, the District Court of Guam,

and the District Court of the Virgin Islands, except where

a direct review may be had in the Supreme Court. See

Appendix p. A21.

STATEMENT OF THE CASE

This case arose out of a Federal Grand Jury Investi-

gation into events surrounding a July 3, 1979, fire on the

site of the Plaza Hotel renovation project in Toledo, Ohio.

The Grand Jury, which convened on July 12, 1979, sub-

poenaed twenty-two (22) witnesses to testify or produce

records, Mr. Wittenberg, one of the Petitioners herein,

represented a number of these witnesses.

On October 4, 1979, the Government, through the

Federal District Attorney’s Office, moved to disqualify

Mr. Wittenberg and the law firm with which he is asso-

ciated, Gallon, Kalniz & Iorio, Co., L.P.A. from the multiple

3

representation of the subpoenaed witnesses. This motion

was granted on November 9, 1979 by the United States

District Court for the Northern District of Ohio, Western

Division, The Court's order disqualified Mr. Wittenberg

and the law firm of Gallon, Kalniz & Iorio, Co., L.P.A.

from representing more than either one (1) individual

witness or one (1) target organization.

On November 13, 1979, the Petitioners filed a Notice

of Appeal and a Motion for Stay Pending Appeal in the

Northern District of Ohio, Western Division, with the

Government filing its response on November 2, 1979. The

court issued its decision on November 28, 1979, denying

the Petitioners’ motion, Following the denial, the Peti-

tioners filed a Notice of Appeal and a Motion for Stay

Pending Appeal in the Sixth Circuit Court of Appeals

on December 3, 1979, and the Government-Respondent

filed a Motion to Dismiss on December 6, 1979, and a

Memorandum in Opposition to the Stay on December 10,

1979. On January 4, 1980, the Court of Appeals denied

the Petitioners’ Motion for a Stay, and on May 20, 1980,

it granted the Respondent’s Motion to Dismiss. Said

decision was made per curiam and docketed as United

States v. Sheldon S. Wittenberg and Gallon, Kalniz &

lorio, Co., L.P.A., C.A. No, 79-3729 (6th Cir, 1980). Peti-

tioners filed a Motion for Rehearing but said Motion was

denied and docketed on July 25, 1980. It is from this

order that Petitioners seek the Writ of Certiorari.

REASONS FOR GRANTING WRIT

I. THE DECISION BELOW CONFLICTS WITH THE

DECISIONS OF OTHER COURTS OF APPEALS

AS TO THE PROPER INTERPRETATION OF 28

U.S.C, SECTION 1291.

Each of the Circuits which have addressed the ques-

tion of the appealability of an order granting disqualifica-

tion have concluded that such order is appealable under

28 U.S.C. Section 1291 as a final order. The basis for

said findings has been the “collateral order’ doctrine set

forth in Cohen v, Beneficial Industrial Loan Corp., 337

U.S. 541 (1949). See, e.g., Grand Jury Empaneled Jan-

uary 21, 1975, 536 F.2d 1009 (3rd Cir. 1976); Investigation

Before February, 1977, Lynchburg Grand Jury, 563 F.2d

652 (4th Cir. 1977); In re Gopman, 531 F.2d 242 (5th Cir.

1976); U.S. v. Garcia, 517 F.2d 272 (5th Cir. 1975); Special

February 1977 Grand Jury, 581 F.2d 1262 (7th Cir. 1978);

Investigation Before April, 1975 Grand Jury, 531 F.2d 600

(D.C, Cir. 1976). See also, New Mexico v. Aamodt, 537

F.2d 1102 (10th Cir. 1976); Brown v. Miller, 286 F.2d

994 (D.C. Cir. 1923); Silver Chrysler Plymouth, Inc. v.

Chrysler Motors Corp., 496 F.2d 800, 805-06 (2d Cir, 1974)

(leading case; Second Circuit, sitting “en banc” court

held that it had jurisdiction to hear an appeal from an

order granting or denying a motion for disqualification).

In the instant case, the Court of Appeals for the

Sixth Circuit, failed to follow the decision of other cir-

cuits and refused to grant the Petitioners? jurisdiction

1. In this Petition, we shall refer to Sheldon S. Wittenberg

and the law firm of Gallon, Kalniz & Iorio, Co., L.P.A., appellants

below and petitioners here, as Petitioners; to appellee United

States of America, appellee below and respondent here, as the

Government. Record references (designated < Rae ) are to

the Opinion of the Court of Appeals. Appendix references (des-

ignated “App. p. ........ ) are to the appendix to this Petition.

5

even though said decision is in direct conflict with the

other circuits.

This conflict should be resolved by this Court in order

to guarantee uniformity between the circuits. See, The

Firestone Tire & Rubber Company v. Risjord, No. 79-1420

(U.S. Supreme Court, 8/1/80), 612 F.2d 377 (1980).

Il. THE DECISION BELOW CONFLICTS WITH

EARLIER DECISIONS IN THE SIXTH CIRCUIT.

In January of 1979, the Sixth Circuit Court of Ap-

peals rendered its decision in Melamed v. ITT Continental

Baking Company, 592 F.2d 29 (6th Cir. 1979). In this

case, the Sixth Circuit overruled its earlier decision in

Melamed v, ITT Continental Baking Co., 534 F.2d 82 (6th

Cir. 1976) by ruling that appeals based on the denial of

disqualification motions would not longer be appealable.

In doing so, the Sixth Circuit joined a minority of other

jurisdictions which deny jurisdiction on disqualification

motion denials. See, e.g., Cord v. Smith, 338 F.2d 516,

521 (9th Cir. 1964), clarified, 370 F.2d 418 (9th Cir. 1966);

Community Broadcusting of Boston, Inc. v. FCC, 546 F.2d

1022 (™).C. Cir. 1976). In rendering its decision, however,

the Court did not address the issue concerning the granting

of disqualification motions and their appealability. This

position was established later in the year by the same

panel of judges in the case known as General Electric

Company v. Valeron Corporation, 608 F.2d 265 (6th Cir.

1979) ‘hereafter referred to as simply Valeron).

In Valeron, the Court clearly emphasized that the

rule of the latter Melamed v. ITT Continental Baking

Co. case (hereafter referred to as Melamed II) would

not apply to district court orders granting motions to dis-

qualify as the court stated:

6

... Our ruling in Melamed v. ITT Continental Bak-

ing Co., 592 F.2d 290 (6th Cir. 1979), is in no way

inconsistent with our accepting jurisdiction in this case.

. . . Nonetheless, Melamed holds that an appeal will

be dismissed as interlocutory only where there is an

order denying a motion to disqualify.

General Electric Company v. Valeron Corporation, supra

at 266-67 (emphasis added). It is apparent that the Court

left little question as to its intent in Melamed II. Yet

the Court in the instant case, before a panel different

than that hearing the Melamed and Valeron cases, has

used the rationale utilized in Melamed to deny the Peti-

tioners jurisdiction. It is hard to understand how this

can be done without the Court’s expressly overruling its

decision in Valeron. No explanation was provided by the

Court in its opinion and order, nor has any case subse-

quent to Valeron made such distinction. See, R., at p.

1.2.

Why the Sixth Circuit chose to ignore its decisions

in Melamed II and Valeron is not apparent to the Peti-

tioners. Both Melamed II and Valeron were decided sub-

sequent to the Sixth Circuit’s decision in In re April 1977

Grand Jury Subpoenas, 584 F.2d 1366 (6th Cir. 1978) and

they would appear to be the controlling law in this juris-

diction, but the lower court’s ruling in the instant case

does not bear this out. It is for this reason, among others,

that the Petitioners seek a Writ of Certiorari. This in-

consistency between Sixth Circuit decisions on the issue

of the appealability of disqualification motions must be

resolved.

The issue involved presents a basic procedural ques-

tion and it is important that an answer be provided which

is both certain and predictable. Disqualification issues

have taken on increased importance in recent years and

7

the consistent administration of justice on this issue is

extremely important. See, Comment, The Appealability

of Orders Denying Motions for Disqualification of Counsel

in Federal Courts, 45 U. Cuic. L. Rev. 450, 476-80 (1978).

Ill. THE DISTRICT COURT ABUSED ITS DISCRE-

TION IN DISQUALIFYING THE PETITIONERS

FROM REPRESENTING THEIR CLIENTS.

Due to the Court of Appeals’ failure to grant the

Petitioners jurisdiction in the instant case, the substantive

issues of this case were never afforded review. It is the

Petitioners’ request that this Court provide such review.

The basic argument proposed by the Government in

its original Motion to Disqualify was that the Petitioners’

representation of multiple witnesses created a conflict of

interest. The District Court in rendering its decision

agreed with the Government’s position and granted the

Government’s Motion. In doing so, the Petitioners argue

that the District Court abused its discretion.

The federal courts have provided inconsistent help

on the issue of disqualification of counsel due to conflicts

of interest in multiple representation. See, e.g., In re Grand

Jury Investigation, 436 F. Supp. 818 (W.D. Pa. 1977), aff’d

per curiam by equally divided court, 576 F.2d 1071 (3d

Cir.) (en banc), cert. denied, 439 U.S. 953 (1978). How-

ever, those cases in which the Government’s motion to

disqualify based on a conflict of interest was granted in-

volved cases in which there was egregious conduct by

one of the defendant’s attorneys? or there were unusual

2. United States v. Clarkson, 567 F.2d 270 (1977); In re

Investigation Before February, 1977 Lynchburg Grand Jury, 563

F.2d 652 (4th Cir. 1977). Both cases involved situations in which

the counsel himself was a target and the clients he represented

were potential witnesses against him.

8

restrictions on the counsel’s representation,’ whereas those

cases in which counsel has not been disqualified have

based their ruling on the fact that there was inadequate

proof: (1) that a conflict existed; (2) that the clients’

behavior would have differed if separately represented;

and (3) that the client’s waivers were unacceptable. See,

e.g., In re Taylor, 567 F.2d 1183, 1187 (2d Cir. 1977); In

re Investigation Before April 1975 Grand Jury, 531 F.2d

600, 607 (D.C. Cir. 1976). In the instant case, there was

neither egregious conduct by any of the Petitioners, nor

was there any applicable state rule imposing additional

restrictions on the Petitioners’ representation.

The District Court in its Opinion and Order argued

that:

... there appears to be general agreement among the

courts which have considered disqualification motions

at the grand jury stage that a conflict of interest exists

when one lawyer represents targets and non-targets,

or when disclosure by one client conflicts with the

interest or desire of any client that disclosure not

occur.

See, App. at p. Al0. A review of the relevant case law,

however, will not support this assertion. See, Matter of

Grand Jury Empaneled January 21, 1975, 536 F.2d 1009

(3d Cir. 1976); In the Matter of the Special February 1977

Grand Jury, 581 F.2d 1262 (7th Cir. 1978); In re Inves-

tigation Before April 1975 Grand Jury, 531 F.2d 600 (D.C.

Cir. 1976); In re Grand Jury Investigation, 436 F. Supp.

818 (W.D. Pa. 1977).

3. Pirillo v. Takiff, 462 Pa. 511, 341 A.2d 896 (1975), aff'd

per curiam, 466 Pa. 187, 352 A.2d 11, a l dismissed and cert.

denied, 423 U.S. 1083 (1976). Case involved a state rule which

prohibited the disclosure of a witness’ testimony before a grand

jury. There is no such restriction in the federal system. See,

Fed. R. Crim. P. 6(e).

9

The Petitioners argue that before a disqualification

motion can be considered timely by the court, it must be

shown that an actual conflict of interest exist and not the

mere potential for such conflict. See, Matter of Grand

Jury Empaneled January 21, 1975, supra; In the Matter of

the Special February 1977 Grand Jury, supra; In re Grand

Jury Investigation, supra. An actual conflict of interest

was never demonstrated by the Government in the in-

stant case.

An. additional issue in this case is the individual wit-

ness’s right to counsel. Case after case has clearly es-

tablished that the courts should not interfere unnecessarily

with an individual’s free choice of counsel. See, e.g.,

Abraham v. United States, 549 F.2d 236, 239 (2d Cir. 1977);

United States v. Armedo-Sarmiento, 524 F.2d 591, 592 (2d

Cir. 1975). Such an interference occurs where a court

orders representation by independent counsel despite the

fact that the witnesses have exercised their option to be

jointly represented. It is well settled that a defendant may

waive his right to assistance of counsel so long as such

waiver is knowing, intelligent and voluntary and this seems

to develop the corollary that a witness “may waive the

right to have (his) counsel free from conflicts of interest.”

United States v. Armedo-Sarmiento, supra, at 592 (quoting

United States v. Garcia, 517 F.2d 272, 277 (5th Cir. 1975).

See, Faretta v. California, 422 U.S. 806 (1975); Glasser v.

United States, 315 U.S. 60, 70 (1942); Johnson v. Zerbst, 304

U.S. 458, 464-65 (1938) .*

4. The ABA Code of Professional Responsibility appears

to incorporate the waiver notion. DR 5-105(c) states:

In the situations covered by DR 5-105(A) & (B), a lawyer

may represent multiple clients if it is obvious that he can

adequately represent the interest of each and if each con-

sents to the representation after full disclosure of the pos-

sible effect of such representation on the exercise of his

independent professional judgment on behalf of each.

ABA Code of Professional Responsibility DR 5-105(C) (1976).

10

At least six circuits and one state supreme court have

held that the right to a conflict-free attorney may be waived

if the waiver is made knowingly and intelligently. See

United States v. Swanson, 509 F.2d 1205 (8th Cir. 1975);

United States v. Garcia, 517 F.2d 272 (5th Cir. 1975);

United States v. Maher, 550 F.2d 1005 (5th Cir. 1977);

In re Investigation Before the February 1977 Lynchburg

Grand Jury, supra; In re Investigation, 531 F.2d 600 (D.C.

Cir. 1976) ; Pirillo v. Takiff, 462 Pa. 511, 341 A.2d 896 (1975).

Each of these courts has suggested that in ascertaining

whether a waiver has been knowingly and intelligently ex-

ercised, a thorough questioning of the individual witness

or defendant may be in order in this regard since such

individual might be fully aware of the effect his attorney’s

possible conflict has on his position. See, United States v.

Liddy, 348 F. Supp. 198, 200 (D.D.C. 1972). Such a pro-

cedure was suggested by the Petitioners to the lower court

but the court failed to consider it. At a minimum, the

District Court should have examined the possibility of

waiver. The substantive issues in this case involve not

only the constitutional rights of the witnesses involved, but

also, the professional rights of the attorneys to represent

their clients. These issues were never granted review as

the Sixth Circuit failed to grant the Petitioners juris-

diction, and therefore did not hear the case on its merits.

Petitioners feel that this case poses questions which are

worthy of consideration by this Court and would re-

spectfully request that a review of the substantive issues be

granted by this Court’s issuing a Writ of Certiorari.

ll

CONCLUSION

A review of the case below will reveal that it not only

conflicts with the decisions of other circuits, but that it

also conflicts with the prior decisions within its own cir-

cuit. Such conflicts should not be allowed to continue and

on this basis alone a Writ of Certiorari should be granted.

Additionally, the decision of the District Court was

an obvious abuse of discretion. The District Court judge

failed to fully examine the case law presented by the Peti-

tioners and in rendering his decision the District Court

judge decided contrary to the established law. As a result,

the witnesses represented by the Petitioners were deprived

of their right to counsel and the Government’s attorney was

allowed to effectively choose the witnesses’ counsel for

them. Accordingly, a Writ of Certiorari should be granted

to review the decision of the District Court and reverse

the same.

Respectfully submitted,

JACK GALLON

(Counsel of Record)

3161 North Republic Boulevard

Toledo, Ohio 43615

(419) 535-1976

Counsel for Petitioners

Al

APPENDIX

OPINION AND ORDER OF THE UNITED STATES

DISTRICT COURT

(Dated November 9, 1979)

No. 79-7

THE UNITED STATES DISTRICT COURT

For THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

IN THE MATTER OF INVESTIGATIVE GRAND JURY

PROCEEDINGS ON APRIL 10, 1979 AND CONTINUING

OPINION and ORDER

Wa tinskI, District Judge:

This matter is before the Court pursuant to the motion

of the United States, by James D. Jensen, Assistant United

States Attorney, for an order disqualifying Sheldon S.

Wittenberg, Esq., and his employer, the law firm of Gallon,

Kalniz & Iorio Co., L.P.A., from multiple representation of

witnesses subpoenaed to appear before the grand jury to

testify concerning an incident occurring on July 3, 1979, at

the Plaza Hotel, Toledo, Ohio. The government’s motion

was filed on October 4, 1979; the respondents, Mr. Witten-

berg and the law firm of Gallon, Kalniz & Iorio Co., L.P.A.,

filed their response on October 15, 1979; and the govern-

ment filed a reply on October 30, 1979. On November 3,

1979, the Court received sealed originals of certain grand

jury minutes and heard arguments by the respective par-

ties. No further evidence was proffered by either party.

Leave was granted at the November 3rd hearing for the

respondents to file a supplemental brief, which was filed

November 9, 1979.

A2

According to the government’s motion and the exhibits

which it submitted, the grand jury is investigating an in-

cident which occurred on July 3, 1979, at the Plaza Hotel

Renovation Project. The government’s motion describes

this incident as a riot and suspected arson, and asserts that

on July 12, 1979, the Federal Grand Jury for this Division

began an investigation of those events. During the course

of its investigation, the grand jury has subpoenaed approx-

imately twenty-two witnesses.

Two of those witnesses, Mr. Jeffrey A. Chambers and

his wife, Mrs. Jeannie Chambers, have been identified as

targets of the investigation. When informed of that fact

at their initial appearance before the grand jury on July

12, 1979, they invoked their privilege not to testify and

were excused. As of the date of the hearing on this matter,

according to uncontroverted assertions by the government’s

attorney, Mr, and Mrs. Chambers are clients of the respon-

dent, Mr. Wittenberg.

In addition, certain labor unions have been identified

by the government as targets of the grand jury’s investiga-

tion. Mr. Wittenberg and the law firm of Gallon, Kalniz &

Iorio Co., L.P.A. were, at the time of the November 3, 1979

hearing, counsel to some of these unions.

With reference to the other twenty witnesses who have

been subpoenaed by the grand jury, it is asserted by the

government that all but four have been represented and

counselled, outside the grand jury room, by Mr. Wittenberg.

The respondents point out, however, that nearly one-half

of their clients have been subpoenaed merely to produce

documents, four witnesses have retained other counsel, and

two witnesses represented by them testified and answered

most of the questions put to them. Nonetheless, it ap-

pears from the record that Mr. Wittenberg presently con-

tinues to represent witnesses who have been a) subpoenaed

A3

to testify; b) informed that they are not targets of the

investigation; and c) counselled by him. (See Transcripts

of Witnesses Kelley and Sigurdson, September 6, 1979.)

Thus, based upon information contained in the govern-

ment’s motion, the exhibits submitted at the November 3,

1979 hearing and, with reference to Mr. and Mrs. Chambers

and some of the unions, information provided by the parties

at that hearing, there is sufficient evidence to support a

finding that:

the respondent, Sheldon S. Wittenberg, Esq., represents

two individuals specified as targets of the grand jury

investigation;

the respondents, Mr. Wittenberg and the law firm of

Gallon, Kalniz & Iorio Co., L.P.A., are counsel to labor

unions which are among the targets of the grand jury

investigation; and

the respondent, Mr. Wittenberg, has been the attorney

for several (though not all) non-target witnesses.

The initial question for decision is whether representa-

tion of more than one client in light of these factual find-

ings constitutes a conflict of interest. If so, the next ques-

tion is whether the strong remedy requested by the govern-

ment—disqualification of the respondents from such mul-

tiple representation—is the proper resolution of the di-

lemma created by seeking to serve more than one master.

To assess the existence of a conflict of interest in cases

involving motions to disqualify, courts have looked to the

American Bar Association’s Code of Professional Responsi-

bility. Cf. In re Taylor, 567 F.2d 1183, 1191 (2d Cir. 1977).'

1. Although the ABA Code has not been incorporated into

the rules of practice for this District, the Code has been adopted

by the Ohio Supreme Court for the regulation of its bar. Re-

(Continued on following page)

A4

With reference to the conflict suggested by the govern-

ment in this case, the following Ethical Considerations and

Disciplinary Rules from the ABA Code appear pertinent:

EC5-14 Maintaining the independence of profes-

sional judgment required of a lawyer precludes his ac-

ceptance or continuation of employment that will ad-

versely affect his judgment on behalf of or dilute his

loyalty to a client. This problem arises whenever a

lawyer is asked to represent two or more clients who

may have differing interests, whether such interests be

conflicting, inconsistent, diverse, or otherwise discor-

dant.

EC5-15 If a lawyer is requested to undertake or

to continue representation of multiple clients having

potentially differing interests, he must weigh carefully

the possibility that his judgment may be impaired or

his loyalty divided if he accepts or continues the em-

ployment. He should resolve all doubts against the

propriety of the representation. A lawyer should never

represent in litigation multiple clients with differing in-

terests; and there are few situations in which he would

be justified in representing in litigation multiple clients

with potentially differing interests. If a lawyer ac-

cepted such employment and the interests did become

actually differing, he would have to withdraw from

employment with likelihood of resulting hardship on

the clients; and for this reason it is preferable that he

refuse the employment initially. ...

* * * + *

Footnote continued—

spondents are licensed to practice in Ohio, and are bound by

the Code, as adopted by the Ohio Supreme Court. It appears

proper and appropriate, therefore, to apply the same standards

to counsel in this Court as they would be expected to satisfy

in the state courts.

A5

DR5-105 Refusing to Accept or Continue Employ-

ment if the Interests of Another Client May Impair the

Independent Professional Judgment of the Lawyer.

(A) A lawyer shall decline proffered employment if

the exercise of his independent professional judg-

ment in behalf of a client will be or is likely to

be adversely affected by the acceptance of the

proffered employment, or if it would be likely to

involve him in representing differing interests,

except to the extent permitted under DR 5-105(C)

(B) A lawyer shall not continue multiple employment

if the exercise of his independent professional

judgment in behalf of a client will be or is likely

to be adversely affected by his representation of

another client, or if it would be likely to involve

him in representing differing interests, except to

the extent permitted under DR 5-105(C).

(C) In the situations covered by DR 5-105(A) and (B),

a lawyer may represent multiple clients if it is

obvious that he can adequately represent the

interest of each and if each consents to the rep-

resentation after full disclosure of the possible

effect of such representation on the exercise of

his independent professional judgment on behalf

of each.

(D) If a lawyer is required to decline employment or

to withdraw from employment under a Dis-

ciplinary Rule, no partner, or associate, or any

other lawyer affiliated with him or his firm, may

accept or continue such employment. (Footnotes

omitted. )

In the present case, in light of the showing that re-

spondents represent both individual and organizational

A6

clients who have been identified as targets of the inves-

tigation and the further showing of representation of clients

who have been identified as non-targets, it appears that an

actual, and not merely potential, conflict of interest exists.”

Where the respondents’ non-target clients are called upon to

answer questions, the respondents’ duty to represent the

targets zealously may, and in all likelihood does, compel

them to seek to prevent the disclosure to the grand jury

of information injurious to the targets. To accomplish

this end, respondents would probably find it necessary

to advise the non-target clients to refuse or to avoid an-

swering questions potentially damaging to the target clients.

This advice to a non-target client may, however, be

neither in such client’s best interests, nor the advice which

such client might receive from fully independent counsel.

Advice to remain silent may have several adverse effects

on a non-target witness. First, he or she may forego the

opportunity to provide further exonerating information re-

lating to his or her own activities. Second, where the

client, though not a target, desires nonetheless to receive

immunity to avoid any possible use of his or her testimony,

the lawyer cannot undertake to obtain immunity nor if

immunity has been granted can the lawyer advise the

client to testify. To do otherwise would clearly jeopardize

2. In making a finding that an actual conflict of interest

exists, this Court desires to point out that such finding is not in-

tended to impugn or castigate respondents’ activities thus far.

The government has made no showing that either Mr. Wittenberg

or his firm have acted in fact improperly to derogate the in-

terests of one or more clients in favor of other clients. None-

theless, a potential conflict has ripened into an actual conflict

(even if it has not “borne fruit” as of this moment). In light of

the fact that the Court has been informed that the grand jury

will resume sitting in a few days, the most opportune time to

decide the government’s motion is at hand. To delay might

cause the conflict which exists to create the dilemma which the

ABA Code declares intolerable, and which, this Court is confident,

the respondents do not desire to encounter.

AT

and conflict with the interests of the target clients. Third,

whether or not a non-target witness had been granted im-

munity, advice from his or her lawyer to refuse to co-

operate may lead to imposition of sanctions of a distinctly

penal character, regardless of whether an ensuing contempt

proceeding is denominated “civil” or “criminal.” To avoid

entanglement of the non-target client in the inconvenience

of appearances before the District Court, the trauma of

a contempt hearing and the imposition of potential sanc-

tions, including incarceration, counsel would probably be

required to advise the non-target to cooperate. This coun-

sel cannot do where counsel’s duty to other clients is to

stem disclosure. See generally Note, Supervising Multiple

Representation of Grand Jury Witnesses, 57 B.U.L.Rev. 544,

563-67 (1977).

The apparent willingness or even desire of the non-

target client to remain silent, at least at the outset, should

not be a factor in assessing the attorney’s ability to counsel

him or her independently or effectively. A lawyer is often

called upon to give a client advice which is unwelcome to

the client, and which the client, as a purely personal

matter, does not want to hear or follow. But part of a

lawyer’s duty to a client is to give that advice which, in

light of the facts and applicable legal principles, best suits

the client’s individual interests, even though the client

would prefer to be in different circumstances or to be able

to follow a more attractive course. The lawyer’s duty in

this regard can be fulfilled only where the lawyer can

advise the client without attention to or concern about

the interests of others.

It appears, therefore, that joint representation of target

and non-target clients creates a substantial danger that

the personal and legal interests of the non-target client

can be jeopardized, if not sacrificed, as a result of the fact

A8

that the attorney owes an equivalent duty of zealous repre-

sentation and fidelity to the interests of a target client.*

Similarly, the interests of a target can be just as adversely

affected if his or her attorney advises the non-target client

to cooperate.

In addition, in assessing the impact of an actual or

potential conflict on the interests of one or more of the

multiple clients, the following Ethical Consideration from

the ABA Code, relating to the duty to preserve the con-

fidences and secrets of a client (Canon 4), should be taken

into consideration:

EC4-5 A lawyer should not use information ac-

quired in the course of the representation of a client

to the disadvantage of the client and a lawyer should

not use, except with the consent of his client after full

disclosure, such information for his own purposes.

Likewise, a lawyer should be diligent in his efforts to

prevent the misuse of such information by his em-

ployees and associates. Care should be exercised by a

lawyer to prevent the disclosure of the confidences and

secrets of one client to another, and no employment

should be accepted that might require such disclosure.

(Footnotes omitted.)

Information obtained from a non-target client relating

either to a target client’s involvement or the non-target’s

activities or knowledge may be of considerable importance

to counsel and the target client as they formulate their

strategy and response to the grand jury investigation. And

it would appear incumbent upon counsel to use and disclose

such information in consultation with the target client.

3. One commentator has suggested that the risk to the

interests and rights of a non-target client may be even greater

where the target client is an organization. See Note, Supervising

Multiple Representation of Grand Jury Witnesses, 57 B.U.L.Rev.

544, 564, 65 (1977).

A9

Otherwise, counsel would be representing the target’s in-

terests incompletely. But any disclosure of information

obtained from the non-target would violate counsel’s duty

of nondisclosure. Although the non-target can consent to

disclosure,‘ it is clear that multiple representation of

targets and non-targets, in addition to the basic dilemma

of conflicting loyalties and duties, has the collateral con-

sequence of potentially impinging upon counsel’s duty to

preserve the non-target’s confidences.

Decisions of other courts support the conclusion that

joint representation of targets and non-targets constitutes

a conflict of interest warranting remedial judicial action.

Most directly on point is the decision of the Fourth Circuit

in In re Investigation Before the February, 1977, Lynchburg

Grand Jury, 563 F.2d 652 (4th Cir. 1977). There one lawyer

represented three target and seven non-target clients. Be-

cause “[p]rofessional ethics prevent [an attorney ] from ad-

vising a witness to seek immunity or leniency when the

quid pro quo is damning to his other clients,” 563 F.2d at

657, the court held that a conflict existed. Accord, In re

Grand Jury Proceedings, 428 F.Supp. 273, 277 (E.D.Mich.

1976) (counsel “would be torn between conflicting loyal-

ties in representation that will have a material impact on

their professional recommendations and course of action’’).

Similarly, the District of Columbia Circuit (while

holding that insufficient evidence existed to determine

whether the attorney represented the target union as well

as non-target union members) indicated that if shown, such

representation of the union and its non-target members

“runs the risk of conflicting interests.” In re Investigation

Before the April, 1975 Grand Jury, 174 U.S.App.D.C. 268,

4. It appears that the same quaere about the adequacy of

waiver of conflict-free counsel, discussed infra, pg. 170, can be

raised about a non-target’s “consent” to disclosure.

Al0

271 n.4, 531 F.2d 600, 603 n.4 (D.C.Cir.1976) (dictum). In

another case in which it was held that there was insuf-

ficient evidence to establish a conflict, the court also pointed

out that discussions between the government and the

lawyer about immunity for one or more clients could cause

a possible conflict of interest to arise. In re Grand Jury

Empaneled January 21, 1975, 536 F.2d 1009, 1011 (3d Cir.

1976) (dictum).

The tension between one client’s interest in disclosure

and another client’s interest in nondisclosure, which is di-

rectly related to the conflict in the instant case, has led the

Fifth Circuit to uphold a disqualification order. In re Gop-

man, 531 F.2d 262, 266 (5th Cir. 1976). In Gopman, a union

lawyer represented three union officials who were not

targets. Nor was the union itself a target. Nonetheless, the

court found that the union’s interest in full disclosure of its

records in the context of the particular investigation con-

flicted with the lawyer’s advice to the individual clients

not to cooperate and to invoke the privilege against self-

incrimination. |

Thus, there appears to be general agreement among the

courts which have considered disqualification motions at

the grand jury stage that a conflict of interest exists when

one lawyer represents targets and non-targets, or when dis-

closure by one client conflicts with the interest or desire of

another client that disclosure not occur. When such cir-

cumstances exist, judicially mandated remedial action is

warranted—indeed necessary where counsel has not, as

recommended by the Code of Professional Responsibility,

EC 5-15, resolved all doubts against the propriety of mul-

tiple representation. The question then becomes one of

the appropriate mode of judicial intervention to avoid the

harmful effects of an otherwise unremedied conflict of in-

terest.

_~

All

The respondents argue that given the present posture

of the grand jury proceedings and their activities on be-

half of their clients, disqualification is not an appropriate

or necessary remedy. Instead, they assert that alternative

remedies, which do not impinge so directly or extensively

on the right to choose counsel freely, should be under-

taken by the government. Among the alternative remedies

suggested by the respondents are: presentment of recalci-

trant witnesses before the Court to determine the validity

of their Fifth Amendment claims; extension of offers of

immunity to individual witnesses; and determination of

whether the clients desire to waive their right to conflict-

free counsel.

The primary decisions supporting the respondents’ ex-

haustion arguments are In re Taylor, 567 F.2d 1183 (2d

Cir. 1977), and In re Investigation Before the April, 1975

Grand Jury, 174 U.S.App.D.C. 268, 531 F.2d 600 (D.C.Cir.

1976). In both cases the courts expressed a distinct pref-

erence for traditional methods of dealing with uncoopera-

tive witnesses. 567 F.2d at 1192, 174 U.S.App.D.C. at 276,

531 F.2d at 608. It is clear that prior to ordering the dras-

tic remedy of disqualification, a court should consider the

alternatives suggested by these cases and argued by the re-

spondents in this case. Where, however, a potential con-

flict has ripened into an actual conflict, the alternatives

must be examined carefully to determine whether they

adequately respond to the damage’s to the clients’ rights and

interests posed by the conflict. In addition, the impact

on the grand jury’s operation should be considered in as-

sessing the merit of any proposed alternative remedy.

At the outset, it should be noted that neither Taylor

nor the April, 1975 Grand Jury case involved situations in

which actual conflict, of the sort present in this case, ex-

isted. In Taylor, the court emphasized that the govern-

ment refused to disclose the basis for the alleged conflict of

Al2

interest between the jointly represented clients. This,

coupled with the lower court’s use of an in camera hear-

ing, led the appellate court to find that basic due process,

namely notice, had been disregarded by the District Court

in reaching its decision to disqualify the attorney. A

similar procedure was not followed in the instant case, in

which the respondents had ample notice and opportunity

to be heard.

Additionally, the four persons being represented jointly

in Taylor were all suspects, so that there was not the clear

conflict which is present with representation of targets and

non-targets. Nor was there an organizational target in

Taylor, as there is here. In sum, the smaller size of the

nut in Taylor made it reasonable to conclude that it might

be cracked without exerting the extreme pressure of an

order of disqualification.

As mentioned earlier in this opinion, the facts of the

April, 1975 Grand Jury case reduce the significance of its

imposition of an exhaustion requirement. The court em-

phasized “how little we can discern from the record as to

the precise nature of the asserted conflicting interests.”

174 U.S.App.D.C. at 275, 531 F.2d at 607. Here, the record

shows a considerably clearer conflict, which calls for more

extensive and specific judicial response.

Thus, the primary cases supporting the respondents’

exhaustion claim appear distinguishable and inapplicable,

given the conflict present here. Nonetheless, the individual

alternative remedies suggested by the respondents will be

examined to determine their suitability in light of the

facts of this case.

The procedure endorsed by the District of Columbia

Circuit in the April, 1975 Grand Jury case—presentment

of uncooperative witnesses to the district court to ascertain

the validity of a Fifth Amendment assertion—would ap-

Al3

pear to be a preferable preliminary procedure in most in-

stances. Certainly the record would be made more com-

plete. But this is not to say that, where an actual conflict

is found to exist, this procedure is a prerequisite to a dis-

qualification order. Where an actual conflict exists, the

Court, in deciding whether to enter a disqualification order

or to direct the pursuit of less intrusive remedies, should

consider the additional elements of a) the impact of a

presentment requirement on the grand jury’s operation,

adn b) the adverse effects of allowing the continuation of

a conflict of interest.

In the present case, where several witnesses have been

subpoenaed, a presentment requirement could cause signif-

icant delay to the grand jury and impose a not inconsider-

able burden on the Court and the United States Attorney’s

office. More importantly, the ethical prohibition against

an attorney’s representing parties whose interests conflict

is sufficiently basic and intolerable that proceeding im-

mediately with a directly effective remedy appears ap-

propriate. The longer that a conflict of interest is not re-

solved or remedied, the longer that one, if not all, of the

affected parties may be deprived of the right to indepen-

dent and effective counsel. Furthermore, an inquiry into

the validity of the party’s invocation of the privilege

against self-incrimination simply fails to address or reduce

the danger to a client’s right to independent counsel which

a conflict creates. In circumstances such as exist here, the

preliminary inquiry demanded by the respondents would

sidetrack the more pressing need to avoid the adverse ef-

fects of permitting a conflict of interests to endure. In

this situation expeditious resolution, rather than further

delay, is called for.

The second remedy suggested by the respondents, and

endorsed by the Second Circuit in Taylor, 567 F.2d at

1192, is to offer immunity to one or more of the witnesses.

Al4

This argument disregards several concerns. First, an offer

of immunity, once given, creates or increases the conflict

of interest, instead of resolving an existing conflict. See

In re Grand Jury of January 21, 1975, 536 F.2d 1009,

1011 (3d Cir. 1976). Counsel’s duty to the immunized

witness to help the witness avoid the sanction of contempt

conflicts as much if not more with the duty to represent

target clients zealously. Thus, in a case such as this im-

munity makes resolution of the conflict more difficult,

rather than leading to its elimination. Indeed, the respon-

dents acknowledge that “a conflict of interest would exist

in a situation where an attorney representing multiple

witnesses represents a client who has been granted im-

munity and also a client who has not been granted im-

munity, * * *.” (Respondents’ Brief at 3.) Thus, the

respondents themselves appear to perceive the fundamental

flaw in the court’s approach in Taylor—that immunity

intensifies rather than avoids conflicts of interests.

The third alternative proposed by the respondents,

namely ascertainment of whether the jointly represented

parties have waived their right to conflict-free counsel,

appears to be their strongest argument. As the court

stated in Taylor, “Once the Court is satisfied, * * *,

that such a client knowingly and intelligently wishes to

proceed with joint representation, the court’s responsibility

is met, and it is without power unilaterally to obstruct

the choice of counsel.” 567 F.2d at 1191.

Various procedures to determine whether a waiver

is valid have been recommended or approved by the courts.

These generally involve an inquiry by the district court.

See, e. g., In re January 21, 1975, Grand Jury, 536 F.2d

1009, 1010-11 (3d Cir. 1976); In re Grand Jury, 446 F.Supp.

1132 (N.D.Tex.1978). See also In re Investigation Before

the April, 1975 Grand Jury, 174 U.S.App.D.C. at 268,

276, 531 F.2d 600, 608 (D.C.Cir.1976).

Ald

The waiver approach, however, disregards several fac-

tors. First, waiver of conflict-free counsel in the context

of a grand jury proceeding affects interests beyond those

of the clients involved: Namely, “the right of the public

to an effective functioning grand jury investigation.” In

re Grand Jury Proceedings, 428 F.Supp. 273, 278 (E.D.Mich.

1976). No private individual can waive this public right.

Id. Were all clients to waive the conflict of interest the

result would be to facilitate legally impermissible efforts

by non-target witnesses to “stonewall” the grand jury’s

investigation. “Stonewalling” conflicts with the public’s

“right to every man’s evidence,” which the Supreme Court

has repeatedly upheld. See e. g., United States v. Mandu-

jano, 425 U.S. 564, 571, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976);

United States v. Calandra, 414 U.S. 338, 343-44, 94 S.Ct.

613, 38 L.Ed.2d 561 (1974). As Calandra emphasizes, a

witness is not entitled to set limits on the investigation

being conducted by the grand jury. 414 U.S. at 345, 94

S.Ct. 613.

In light of this potential impact on the grand jury’s

operation, at least one court has held that, in a case of

actual conflict such as exists here, no valid waiver can

occur. In re Grand Jury, 446 F.Supp. 1132, 1140 (N.D.

Tex.1978) (dictum). Only in this fashion can the adverse

impact of stonewalling be avoided, and the public’s right

to an effective grand jury be upheld.

Certain practical considerations provide additional sup-

port for this approach First, a quaere should be posed

whether the waiver would meet the “knowing and intelli-

gent and voluntary” standard required under basic consti-

tutional principles. See id. (“The waiver would be il-

lusory.”) The problem in this regard is that the danger

exists that counsel cannot, by intellectual footwork, re-

move himself from the position of conflicting interests

Al6

sufficiently far or long enough to provide neutral and

objective advice about the proper course to follow. Advice

to client A to secure other counsel might be adverse to

client B’s interests, while advice to client A not to obtain

other counsel might be adverse to that client’s interests.

Second, aside from this question, the record in this

case raises some question about the adequacy of the advice

given by Mr. Wittenberg concerning the existence and

consequences of, and remedies for, the conflict of interest

which exists here. The transcript of the witness Ladd

shows considerable uncertainty on his part with regard

to the advice given to him. (Transcripts of Witness Ladd,

August 1, 1979, at 24; September 6, 1979, at 48- -52.) To

the extent that a witness lacks adequate understanding

of the existence and consequences of and remedies for

a conflict, no “knowing, intelligent and voluntary” waiver

can be obtained. See In re Investigation Before the Feb-

ruary, 1977, Lynchburg Grand Jury, 563 F.2d 652, 657-

58 (4th Cir. 1977). In any event, it has been held that

waivers purporting to relate to conflicts which may arise

in the future are invalid. Id.

Therefore, in light of the existence of an actual con-

flict of interest, and in light of this Court’s determination

that the alternative remedies suggested by the respondents

would not effectively serve the interests of their clients

or the interests of justice,

IT IS THEREBY ORDERED THAT:

1. The government’s motion that Sheldon S. Witten-

berg, Esq. and the Jaw firm of Gallon, Kalniz & Iorio

Co., L.P.A., be, and the same hereby is, granted;

2. The respondents be, and they hereby are, ordered

to represent no more than either one individual witness

or one target organization relating to the grand jury’s

Al7

investigation of the incident occurring on July 3, 1979,

at the Plaza Hotel Renovation Project;

3. The respondents shall, prior to 5:00 P.M., Monday,

November 12, 1979, inform all persons and organizations

previously represented by them with reference to said

investigation:

(a) of the entry and effect of this Order; and

(b) that any such person or organization (except

the person or organization continued to be represented

by respondents) desiring to obtain legal representation

relating to said investigation must obtain separate and

independent counsel for such purpose;

4. The Assistant United States Attorney appearing

before the grand jury in further proceedings relating to

said investigation shall:

(a) ascertain, with reference to each witness ap-

pearing before the grand jury, whether such witness

has secured counsel, and if so, that counsel’s represen-

tation does not contravene paragraph one of this Or-

der; and

(b) in the event such representation contravenes

paragraph one of this Order, inform this Court imme-

diately of such fact.

5. The Clerk shall mail a copy of this Opinion and

Order to each witness who has been or may be subpoenaed

by the grand jury with reference to this particular inves-

tigation.

IT IS SO ORDERED.

Als

OPINION OF THE COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(Filed May 20, 1980)

No. 79-3729

UNITED STATES COURT OF APPEALS

FoR THE SIXTH CIRCUIT

IN THE MATTER OF INVESTIGATIVE GRAND

JURY PROCEEDINGS ON APRIL 10, 1979,

AND CONTINUING.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

SHELDON S. WITTENBERG AND GALLON

KALNIZ & IORIO,

Defendants-Appellants.

On AppEAL from the United States District Court

for the Northern District of Ohio.

Before: Livety, KerrH and Merritt, Circuit Judges.

PER CurRIAM. This is an appeal by members of a

law firm from a District Court order that disqualified

them from representing more than one party at a grand

jury inquiry. The grand jury was investigating the sus-

pected arson of the Plaza Hotel Renovation Project in

Toledo, Ohio. Wittenberg, an associate of the Gallon firm,

originally counselled 18 of 22 subpoenaed witnesses. In

addition, the Gallon firm often represented several labor

unions whose records the grand jury sought. Several key

witnesses represented by Wittenberg invoked their Fifth

Al9g

Amendment privilege against compelled incriminatory tes-

timony. The government thereupon moved to disqualify

Wittenberg and his firm from multiple representation on

grounds of conflict of interest.

The government has moved to dismiss the appeal.

The threshold issue is whether the Order currently is

reviewable. Acknowledging the final judgment rule of

28 U.S.C. § 1291, Wittenberg and the Gallon firm argue

that the ruling falls within the exception of Cohen v.

Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949),

for determinations of collateral rights. They cite the de-

cisions of several circuits that have reviewed disqualifica-

tion orders. The government, based on this Court’s opin-

ion in In re April 1977 Grand Jury Subpoenas, 584 F.2d

1366 (6th Cir. 1978), maintains that the disqualification

order was an interlocutory rather than a final judgment

and hence not appealable.

For the reasons set out in In re April 1977 Grand

Jury Subpoenas, supra, the witnesses may not seek review

of disqualification orders on an interlocutory basis but

only after contempt proceedings or conviction. The law-

yers for the witnesses, as independent litigants, have as-

serted no cognizable federal question—no federal constitu-

tional, statutory or common law claim—and hence we lack

jurisdiction over the appeal brought in the name of the

lawyers. Indeed the lawyers did not file a complaint

on their own behalf in the court below, or assert as parties

claims independent of their clients.

Accordingly, the appeal is dismissed for lack of appel-

late jurisdiction under 28 U.S.C. $1291 (1976).

A20

ORDER OF THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT DENYING

PETITION FOR REHEARING

(Filed July 25, 1980)

No. 79-3729

UNITED STATES COURT OF APPEALS

' For THE SIXTH CIRCUIT

IN THE MATTER OF INVESTIGATIVE GRAND JURY

PROCEEDINGS ON APRIL 10, 1979, AND

CONTINUING.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SHELDON S. WITTENBERG and GALLON, KALNIZ

& IORIO,

Defendants-Appellants.

ORDER DENYING PETITION FOR REHEARING

Before: LiveLy, KEITH and Merritt, Circuit Judges.

A majority of the Court having not voted in favor

of an en banc rehearing, the petition for rehearing has

been referred to the hearing panel for disposition.

Upon consideration, it is ORDERED that the petition

for rehearing be and hereby is denied.

Entered by Order of the Court

/s/ JOHN P. HEHMAN

Clerk

A21

UNITED STATES CODE

28 U.S.C. §1291

§ 1291. Final decisions of district courts

The courts of appeals shall have jurisdiction of appeals

from all final decisions of the district courts of the United

States, the United States District Court for the District

of the Canal Zone, the District Court of Guam, and the

District Court of the Virgin Islands, except where a direct

review may be had in the Supreme Court. June 25, 1948,

c. 646, 62 Stat. 929; Oct. 31, 1951, c. 655, § 48, 65 Stat.

726; July 7, 1958, Pub. L. 85-508, § 12(e), 72 Stat. 348.