Stillinger, U.S. Attorney argue in the Fifth Circuit

Stillinger: May it please the court, counsel. The power of the federal government to investigate is immense. We have recently learned, I filed a motion to supplement the record which this court granted, and we have recently learned that this investigation, which a year ago appeared to be one investigation, we've now learned it is 12 separate investigations. It has involved 25 months of wire taps on three lines, 21 searches, thousands of boxes of documents that have been seized, 80 persons of interest, 35 of those being public officials, 13 attorneys, three judges, and many prominent members of the El Paso community. When an investigation of this magnitude appears, either appears in the paper when the FBI comes and knocks on a person's door, the natural, wise thing to do is to hire an attorney. And I have represented 3 individuals who are alleged to be subject to investigation, and that's exactly what they did, is they hired an attorney. And I don't think that it can be disputed that a person has a right to hire an attorney under the circumstances.

We agree the 6th amendment right to counsel has not attached because there's no custodial situation, but certainly a person has a right to hire counsel, just as they have a right to hire counsel to consult with a real estate transaction or a contract action yet in this particular case the government is arguing that that right to counsel can be abridged prior to any litigation without a hearing and without any right to an appeal that limitation of the right to counsel, which brings me to my first point whether the district courts decision in this case is appealable. I believe that it is appealable for a number of reasons. One is a common sense reason. We're now a year later. This has been a year since the disqualification order was entered, approximately a year, and nothing has happened as the court can see from the supplement to the record, nothing has happened to any of these three individuals except that they have been denied counsel of their choice in the past year. So the question is if they're never indicted, was there nothing wrong with the government denying them counsel of their choice?

Judge Prado: Have they been subpoenaed before the grand jury?

Stillinger: No. No. Nothing. Nothing has happened. No other witnesses as far as we know, no other witnesses have been subpoenaed with respect to those subjects of the investigation.

Judge Haynes: Is there an argument that because Judge Montalvo set up a separate miscellaneous docket number, and this was the only matter pending in that docket number, and that matter has been resolved that that case is now final, the miscellaneous case, and that this appeal then would be from a final order in the miscellaneous case, not in the overall investigation case

Stillinger: Absolutely, and the court, you may be aware, the judge, in setting up a separate case number, he even said he was doing it to facilitate the appeal. So certainly the district court anticipated an appeal, and I would say, by using those words that he was facilitating the appeal. I think that he meant to indicate it was his opinion certainly that it was a final order in a separate case.

Judge Elrod: So the mandamus wouldn't be required, you would just want to reverse on appeal.

Stillinger: That's correct. I don't think mandamus is required, your honor. I think for a couple of reasons. One is what Judge Haynes just referred to, is this is the only matter under this particular case number. There is nothing else pending, so there is nothing else, we can wait and wait and wait for something to be resolved, there is nothing else to be resolved. And since my clients haven't been charged, there may never be anything to be resolved, which would have the result of denying them any appeal ever, because they may never be indicted and nothing may ever happen to these individuals. That doesn't make it okay to have the right to counsel abridged.

Judge Elrod: What about jurisdiction? If the court had no jurisdiction, would that be, I mean we wouldn't, if you, we wouldn't reverse as you would seek us to do, we would find that there was no jurisdiction, can you address whether the court had jurisdiction

Stillinger: Well, sure. If the district court had no—which is my argument, I'm saying the district court had no jurisdiction, and of course I've made, I have not challenged the actual factual determination conflict although I obviously disagree with it. But what I'm saying is the lower court had no jurisdiction to enter an order at all to consider the issue

Judge Elrod: Right, but is the solution then reversal or is it dismissing the case for one of jurisdiction and vacating of the proceedings. What is the procedural mechanism to do what you'd like to do.

Stillinger: I believe that's what it is, actually, your honor. I don't think it's a reversal. It's not a reversal in the sense that I'm asking this court to instruct Judge Montalvo to make a different ruling on that motion. I think that the remedy is to vacate, and I may have said reverse in my brief but I think you are right. It would be to vacate the district courts decision with an order that the motion be denied for lack of jurisdiction, or dismissed for lack of jurisdiction.

[5:00]

Judge Haynes: You're saying vacate the district courts order because it was entered without jurisdiction

Stillinger: Correct.

Judge Haynes: And then dismiss this appeal.

Stillinger: Correct. Just with respect to whether this court can hear the appeal, there's just a couple of other points. One is that it is a final order under its own case number, the other is the other anomalous jurisdiction cases that, the handful that this court has heard, were appealed to this court. And those are the couple of cases cited. The search of the law office of Alan Brown, Hunsucker vs Phinney, and there's In Re: Grand Jury Proceedings. Those cases were appealed. I think the Alan Brown case was appealed by the government

Judge Haynes: So you're saying that if the judge asserts, the district judge says he has anomalous jurisdiction, does so perhaps incorrectly, but says so, that that by itself gives us jurisdiction to hear the case. His finding or his assumption of anomalous jurisdiction then gives us authority to review the question of whether he had the anomalous jurisdiction

Stillinger: I think this court can always review whether the district court acted with jurisdiction or not. Regardless of the basis. Whether the judge said I have anomalous jurisdiction, or whether he said I think the rules of professional conduct give me jurisdiction, and never use the word anomalous, I think if he just ruled that way...

Judge Haynes: But I mean judges make a lot of rulings that may be wrong or right, we can't just go around reviewing all of them unless there is a final order or unless there is a ground for mandamus. I think that is the concern we have, is under what theory are we exercising jurisdiction. Even if the judge was completely wrong in what he did, we still have to have jurisdiction to review it, so that's what we're trying to make sure we have.

Stillinger: Right, and what I'm saying is I think the court always has jurisdiction to review the question of a lower courts jurisdiction. When a district court is acting outside of its jurisdiction, and I did cite a case in my reply brief to that effect, when a district court is acting outside of its jurisdiction, this court can always review that.

Judge Haynes: You're saying on mandamus then.

Stillinger: I don't think it has to be on mandamus, your honor. And getting back to your previous question, because the judge used anomalous jurisdiction as his vehicle, and because prior anomalous jurisdiction cases have been appealed by direct appeal. I know that this court, and I understand that the government has basically conceded there is no anomalous jurisdiction in this case. That is what I understand that they've conceded that. I understand this court could find some other the basis for jurisdiction, but I do believe that because the Judge has procedurally proceeded that way, it has proceeded to this court as a ruling on a case based on anomalous jurisdiction, and I think the court can hear the appeal.

Judge Haynes: That was my original point.

[8:00]

Stillinger: Yes, well I'm coming around to that, Judge. I understand. Getting to what is the source of this jurisdiction the lower court had, and certainly Article 3 limits federal court jurisdiction and that's not disputed and there's plenty of cases like that, and I would like to say I think perhaps I may have even confused the issue. My initial response to the governments motion, I said the government did not have standing, and truly I used the wrong words, because we all have standing to complain of ethical violations we see, in fact I remember this from law school, when you take professional responsibility, one of the things they teach you is that not only do you have to behave yourself, but if you see another lawyer that is violating the rules, you are duty-bound to report it.

Judge Haynes: Yes, but standing before him.

Stillinger: Well exactly.

Judge Haynes: So let me ask you this. What should, let's say the government thought you really genuinely believed you had a conflict. And really believed you were acting inconsistent with the ethical rules as adopted by the Western district of Texas under AT-7. What are they obligated to do as a lawyer for the government? What should they have done?

Stillinger: Well, I believe there are two options. One is, you may be aware, the Western district of Texas now has a disciplinary committee. So we have our own sort of in house disciplinary system in the western district of Texas. And that would be a natural place to file a complaint. The other, of course, is with the state bar, 'cause I'm always subject to state bar regulations as well. That is the forum for disciplinary issues.

Judge Haynes: So you're saying the government lawyer has standing to go in front of a grievance process, but not in front of a court in this context.

Stillinger: That's what I believe. And your honor raises an interesting point. The rules, the local rules, and I think it's local rule AT-7 says that a judge does not have to go to the disciplinary committee. A judge has the inherent authority to discipline lawyers appearing before him, but it's the appearing before him part that I have the problem with. The judge has lots of discretion in the court room. The judge can tell me not to wear a baseball cap or chew gum, but
[10:00]

Judge Prado: Did you go to court? I mean did the judge bring you into the court room and talk to you about this complaint or conflict, or was it just an order that appeared at your office. Procedurally, how did this occur?

Stillinger: There's never been any appearance in court by myself or by any of my clients or by the U.S. attorney. Procedurally, I received a motion to disqualify me, and then everything else is on paper. I mean everything from the beginning, everything is on paper.

Judge Elrod: You filed a response, so at that point, aren't you before him whether or not you're physically in front of him or not.

Stillinger: I'm before him, I would say the cart came before the horse on that one, but yes, once they filed the motion to disqualify me, then I am before the court. But I don't think they can file a motion to disqualify me until I was before the court.

Judge Prado: Was the only reason for the disqualification the fact that you were representing three people, and there was a potential for conflict?

Stillinger: Yes.

Judge Prado: Okay, and your clients were not given the opportunity to waive that possibility of conflict.

Stillinger: No, actually. I thought there would be a hearing because rule 44, I mean the government was proceeding by analogy with rule 44, the federal rules of criminal procedure, which there are always in my experience, a judge almost always has a hearing on a rule 44 inquiry, where the clients are given an opportunity to, and in fact, those proceedings I've been involved with, the judge will often directly address the client to make sure that they are discussing the conflict directly with the client because it's really the client that has the right. If I am somehow preventing my clients from cooperating or doing something to them, seems that they should be the ones that should be addressed by the court. That did not happen in this case.

Judge Haynes: Well in a lot of conflicts are waivable, so the question is just whether a potential criminal defendant understands the rights he or she might be waiving by agreeing to common counsel, because obviously people have common counsel all the time and well in civil a lot, maybe less so in criminal, nonetheless it is possible, and so what you're saying is your clients weren't even given the opportunity to determine whether or not they wanted to proceed, even knowing that there could be a conflict, because there can also be benefits to joint representation, such as pooling resources and acquiring the counsel that they want, and acquiring a prominent counsel perhaps in the community and so forth.

Stillinger: And I would say they were given that opportunity, but they were given that opportunity in my office. I mean

Judge Haynes: I meant by the court. We don't know what happened in your office, and so if the judge is concerned about that and doesn't know whether you did what you were supposed to do and gave them all of the warnings and waiver information, then are you saying that the judge should have had a hearing, assuming he had jurisdiction to begin with, should have had a hearing to flesh that out.

Stillinger: And I did proffer to the court in my response. I did proffer that I had discussed it with my clients, and informed them of the potentials, and that I had discussed it with the prosecutor. So I did proffer that to the court, it was not in the form of testimony because there was no hearing. It's an unusual situation when there's a person under investigation and an issue is raised like this because, and I think I said this in my first response, it's a little bit of a fishing expedition by the government. Why should my clients have to come forward and say, well this is how I know this man and really we only know each other this way, and I don't know anything about his business with that company and he doesn't know anything about my business over here. Why should they have to come forward? My position from the beginning was the court did not have jurisdiction ability to hear this matter. But as a backup position if the court did think it had jurisdiction, I do think that the client should have been addressed.

Judge Haynes: At what point do you think the court does acquire it, because you seem to suggest if there were a grand jury proceeding where your clients were witnesses that then there would be the power under say Gopman, I don't know if I'm pronouncing that right. The Fifth Circuit case to perhaps disqualify counsel. But you think that requires at least the trigger of a grand jury investigation and not merely issuing wire tap on a broad ranging multiplicitous investigation that your guys might be a part of.

Stillinger: The problem is, and I'll tell you this with Gopman is when there is a grand jury proceeding, you know there is something going on. There is a proceeding, with respect to my three clients, I don't even know. I mean there's no wire tap on any of their phones, there were no searches at any of their homes, I don't even know that there really is anything going on, and the court may, because the court may have knowledge that I don't have. I'm not suggesting that there was any ex parte communications, but I know that the court has apparently authorized a lot of search warrants, reviewed lots of affidavits, that are not before me and not before this court. I think my time is up.

[15:00]

Judge Prado: Before we hear from the government, I'm curious. There was some excitement back in the court room. Did we have another guest or something?

[Banter about mouse]

Murphy: May it please the court, I'd like to begin by saying a few words about the jurisdiction of this court to hear this appeal, and I don't think that this is a sufficiently final order for purposes of appellate jurisdiction. First, in response to your line of questions, Judge Haynes, I don't think the fact that this has been given a separate case number is enough here, specifically because when the district court gave it a separate case number, he said that there was no impropriety in the governments filing of this under the original case number and made clear that he was not going to need a separate case number because it was a separate case, but rather because there were some technical problems with filing and because it would consolidate these pleadings under one number.

Judge Haynes: Did he say it would facilitate appeal?

Murphy: He did, but I don't think that a district court saying that it facilitates appeal grants this court jurisdiction where the court otherwise lacks jurisdiction. It doesn't make it a final order, it just puts everything together to make it easier for this court to determine if it's a final order. And here I don't think that it is. And I think that it's

Judge Haynes: What's left to be done in cause number x, the miscellaneous case?

Murphy: Well I think that the miscellaneous case is related to the potential criminal proceedings. That's the same thing that the 7th and the 9th circuit said in the grand jury cases that they dealt with. The grand jury proceedings there were not separate, they were separate proceedings in the same way that this is, there was an order to disqualify and that was the only thing before the court because there wasn't a criminal proceeding yet.

[17:04]

Judge Elrod: And they had a separate cause number and the judge announced that that cause was final in those 7th and 9th circuit cases?

Murphy: Well, there were no other proceedings involved, so there was no other case number involved.

Judge Haynes: But there was a pending grand jury that's with the case number, here are the case numbers only for a motion disqualify, there's not a grand jury, there's not wire taps, there's nothing but this motion and I wondering this thing set on the docket, what else is going to happen in it

Murphy: Well in this particular case number there's probably not going to be anything else that happens, but again the court said it provided this case number mainly because there had been problems with the ability for counsel to file under the other case number and that it would make things easier from a technical standpoint, and I just don't see how the fact that they said they were putting all the documents together makes it final if it's not otherwise final, and in the grand jury context it's not otherwise final even though there may never be a criminal proceeding in a grand jury context, but it's still considered to be part of...

Judge Haynes: It's just like when you sever a civil case, you know, you take two cause of action and sever them or two parts of a case and sever them, and you finalize one and not the other, that one that you finalized is final even though it originally was part of the mother ship, now it's off on its own and there's a final order entered in each case. So here the judge knowingly did that in part to facilitate an appeal so he knew he was setting up a separate case in which this is the only pending matter, and I'm trying to understand why that's irrelevant and frankly whether any of the cases that anybody cited are similar, because in all of the other cases, there's something else going on, there's a grand jury, there's other ongoing activity. In this cause number, nothing else is going to happen that hasn't already happened in the district court unless we make it happen.

Murphy: That's true, but this cause number is part of, it is related to the ongoing cause number where the court supervised wiretaps and search warrants and where guilty pleas continue to be taken under that cause number.

Judge Elrod: But what case says that because it's related to another case or another cause number means that this case is not final?

Murphy: Well I don't think there's a case in point but I also don't think there's really any case law saying that if a district court assigns another case number in the criminal context, that that necessarily makes something final for purposes of appeal.

Judge Haynes: I mean in criminal cases all the time defendants are split up and put in different case numbers because they decide not to try them together, and they proceed the final judgments separately, and so they may be very related, they may have been a part of the same alleged conspiracy or series of activities or transactions or whatnot, and yet those are all separate. So I don't think that the fact that they related to each other, and I think that's frankly in dispute whether this really relates to anything given that now there's twelve investigations and so on I mean this is a very big labyrinth. But lets just say it's related , I don't know that that answers the question, I mean a lot of cases are related to each other but are still separate and have final separate final orders.

Murphy: Well I think when you have criminal cases that are separate but related, it's not the fact that they have different cause numbers that makes them appealable, it's that they reached a final judgment. And here, this is something, I think it's actually analogous to the anomalous jurisdiction and the returning property cases where the fact that a, what used to be an anomalous jurisdiction return of property motion which was also a motion to suppress, that motion may have been before a different court with a different case number than whatever criminal proceedings were later filed, but this court would still say the question of jurisdiction depends on whether the motion for return of property is tied to the separate criminal proceeding that was brought before a different judge or a different court, it is not final just because it was a motion for property that was ruled on by a district court under a different case number.

Judge Prado: So if nothing happens, it's not a final order, no one is indicted, Ms. Stillinger can never represent these people because this order's there, this never resulted in an indictment, I guess till the statute of limitations runs on whatever it might be because they don't even know what it is, so she can never represent these three people ever again?

Murphy: No, I think that that's why if the courts were to find there was a lack of district court jurisdiction here, mandamus would be the appropriate relief. I do think that, and this court has said mandamus can be appropriate in the context of disqualification motions, so if the court found that somehow this is improper, I'm not saying there is nothing the court could do, I'm just saying that it should be in the framework of mandamus rather than in the framework of appellate jurisdiction.

Judge Haynes: Well that nicely segues into the question of whether the judge had jurisdiction and I have to say the thing that concerns me about your position is actually well stated in your brief [21:46] on page 13. Because the concerns animating such inherent authority exist independently of an ongoing criminal proceeding, a court may exercise the authority to prevent conflicts of interest from frustrating investigations that have been aided by the courts authority. Now I understand the courts issue wire taps and so forth. It wasn't my understanding the courts were there to prevent the government from being frustrated, and my concern here is that's exactly what's going on here is these three individuals decided to pool their resources and I don't know Ms. Stillinger so this is not personal to her. Lets say they figure they've hired the best attorney in town and that's who they want and that she's a well known, lets say very prominent attorney and I don't know her I'm not speaking well or ill of her, but lets just hypothesize that she's the best criminal attorney within a hundred miles of where these folks live, and they don't have the money to hire unless they all pool their resources. That's probably not in the governments interest, the government wants these guys to all flip on each other and that kind of thing, cut deals and so forth but perhaps it's in their interest to stick together. Isn't this a very dangerous situation where we have a judge that these defendants are not even before him, he's doesn't have a rule 44 procedure. We have the government that doesn't even have standing because the right to counsel hasn't attached, you don't have an ineffective assistance of counsel concern, and yet we've got the government, in essence, picking the attorney. Is that not a concern that we should perhaps exercise mandamus jurisdiction to correct if it's improper.

Murphy: I don't think that this is simply about facilitating the ease of a government investigation. It's about the problem of unethical conduct perhaps getting involved in a federal investigation that a court is supervising in some manner.

Judge Elrod: But there's no record on any unethical conduct here, so there's no basis to show, you know, if we have to analyze abusive discretion in the mandamus context, what basis do we have that there's any support whatsoever for this judges decision?

Murphy: I think the district court laid out the factual findings that led it to conclude that there was a conflict here.

Judge Elrod: There was no hearing with the people to have a chance to talk about their waiver in the...

Murphy: And in the criminal context, not every conflict is waivable. It may just be, as the court found here, there is either an actual conflict or a serious potential conflict in that context the district court has the discretion to determine that this conflict cannot be waived. So I think that it's not problematic that they weren't give a chance to waive a conflict that the court found not to be waivable. But to return to your question of whether this is about facilitating the governments ease of investigations, it's really a concern that unethical conduct or conflict of interest may prevent the investigation from moving forward. It's not just that everyone should be required to cooperate with the government, it's that people shouldn't be placed in the bind of perhaps receiving conflicted counsel on whether it is in their best interest.

[25:00]

Haynes: Okay, what if the judge is just at the grocery store and overhears a lawyer who happens to be a real estate attorney representing both sides of a transaction. Can that judge just say, you know what, I hereby disqualify you because this is an unethical and you're hurting your clients, you cannot waive this, you're on both sides of the deal. We have a mechanism for dealing with unethical conduct that both lawyers and judges have to follow which is, as Ms. Stillinger said, you have two options here because this is the western district, you have AT-7, which allows for a disciplinary referral. And you have the state bar of Texas grievance proceedings, and so unethical conduct can and should be, I absolutely agree, can and should be addressed and if you as a lawyer become aware of it, there's rules that govern what you have to do. But that doesn't automatically give the court jurisdiction, and in fact AT-7(d) says the judge has an inherent authority to discipline an attorney who appears before him or her so it's a very specific grant of inherent authority and not a generic every time you just find out about something that could touch upon your case.

Murphy: I think that's true, but I think the line of cases dealing with grand jury investigations is particularly responsive to that question because in those cases, counsel is not necessarily appearing before the courts in any formal sense, they may not have filed an appearance, they may not be ever before that judge at all, but this court and many courts have made clear that it is perfectly appropriate for a district court that is involved in a grand jury proceeding to exercise its authority over a disqualification motion.

Judge Elrod: But before the grand jury proceeding, how far back does it go? Does it go to the grocery store, Judge Haynes' hypothetical.

Murphy: I don't think that it would. I think that there is you know it can be a fact intensive question as to what degree the district court is actually involved in the investigation.

Judge Elrod: When did it become appropriate for the district court to reach out in this case?

Murphy: I think in this case the fact that when the motion was brought, this district court had been involved in this investigation for three years. It had supervised 25 months of wire taps, on those wire taps these individuals were, two of these individuals were recorded, they received notification on a form from the western district of Texas informing them that they had been intercepted on a wire tap authorized by that court. That court has authorized the search warrants that are related to the places of business and the individuals who are part of the allegations that the government documented in its motion against these individuals.

Judge Elrod: So the court has jurisdiction on anybody who was on the phone with any of the people who are targets for any purpose whatsoever to step out and tell them who they can pick for lawyers.

Murphy: I resist the notion that it's the courts stepping in and saying who they can pick for lawyers. These are conflict of interest rules that do exist independent of a criminal proceeding or a civil proceeding. These rules govern every kind of representation an attorney may be involved in.

Judge Haynes: But they don't give the court power to step in. The state bar of Texas disciplines attorneys. The western district has a committee to do that. The court can't just run around bringing people in front of them and saying hey you've got a problem. Even let's for the moment just say that there was a conflict of interest, and I'm not sure I'm convinced of that, but let's just say that. That doesn't by itself give the court power to decide what to do about it. And in fact in Gopman when you talk about the grand jury, the court made a very big deal about the fact that this was a grand jury proceeding under the supervision of the court. Had it been simply enough that there's some criminal investigation pending that in some way touches upon these people, that's all they need to say, they didn't need to go on and on about the grand jury. So obviously it was important to our court back in 1976, I guess, under Gopman to have a proceeding directly under the court's control. Here, yes, I mean courts have to issue wire taps and search warrants and so forth and they do that all the time, but I'm concerned, as Judge Elrod raised, does that mean that everybody who in some way gets caught up in this is on the telephone or maybe is at the house when it gets searched or whatever, that all of those people who might get together and hire counsel are now under the courts jurisdiction to determine whether that counsel can continue to represent them?

[30:00]

Murphy: Well, I would say two things in response to that. The first is that I would direct the court to the American Airlines case which came a little while after Gopman, I believe it's in 1992. And in that case the courts talked about the fact that it's not a matter of simply of whether the multiple representation is tainting a proceeding before the court. If the court is involved in a proceeding, and somehow related to that proceeding there is some sort of unethical multiple representation going on, that's enough. So it's not, the existence of the grand jury did demonstrate in Gopman that the court was involved in supervising some sort of matter. But I think that the same is true here. The court has been very involved. This isn't just a couple of wire taps or search warrants. I think the order that was recently supplemented the record demonstrates just how involved the district court is in this investigation. And the fact that it is taken eight guilty pleas. And every indication is that any charges that come out of this investigation will continue to be before this court. So here it may be a bit of an unusual circumstance, but I think that the unusual circumstance is every bit as much a product of the degree of supervision that the district court has over this particular investigation.

Judge Haynes: Let me ask you this. We don't just get to rule on a case, what we write, people read, and if published can be precedential, but even if not published, people will read and look at, and presumably the district judges will look at and be somewhat guided by. That being the case, what rule are you announcing? At what point under your rule does the judge acquire this inherent authority to go around disqualifying lawyers, short of a grand jury, short of an indictment?

Murphy: Well I think the rule that this court has stated is that courts have the ability to look at any unethical conduct occurring in connection with any matter before them. And it may be a factual question whether something is a matter before the court, but here I think that you have so many facts that indicate that this is a matter before the court, that it would be appropriate to write an opinion that explains that these particular facts that this court has been supervising. And yes, this case has gone off in different directions now, but the relevant fact is that the district court is supervising all of those directions that the investigation has gone into. So when the court has been involved in facilitating the investigation through process that is authorized to provide under federal statutes, and it continues to remain involved, and the court is of the impression that these people have been represented, that they are targets of the investigation, that there is a potential for criminal proceedings against them in that court, I think it's appropriate for the court to look at unethical conduct that may relate to the investigation that the court is...

Judge Haynes: So it needs to be a matter, there needs to be something going on with the court...

Murphy: Yes.

Judge Haynes: And the defendants in question, or the potential defendants in question have to be targets. Because obviously the people have to have a nexus to the case ...

Murphy: Yes, absolutely. The factors are that there's a matter before the court, that the individuals are the targets of the investigation, the matter is before the court, and another relevant factor I think is the representation is being provided by an officer of the court in relation to the investigation that the court is supervising.

Judge Haynes: Well how would it ever, otherw... I mean, you saying they went to a non-lawyer.

Murphy: Well I think it matters that the person is a member of the bar that the court is before and that the person is providing the representation in relation to ...

Judge Haynes: So if Ms. Stillinger just hadn't signed up with the Western District, she could have represented them all?

Murphy: No, I think it is that it is being provided in relation to the matter that's before the court that makes someone an officer of the court.

Judge Prado: Is she in violation of Judge Montalvo's order today, by being here today representing these three individuals?

Murphy: Well, Judge Montalvo did issue a second order giving her specific authorization to represent these people on appeal. I think it's a little problematic to allow her to continue representation once the court has found that there's a conflict of interest, but because the representation at this point is entirely separate from the investigation that it was originally part of, I think that it's separate from the conflict of interest in a certain sense.

Judge Haynes: It sure sounds like Judge Montalvo expected this to be appealed, and felt whatever he was doing was appealable. I mean he was obviously concerned about making sure it was reviewable and I respect that. I've been a district judge and I respected the importance of the appellate courts, so he seems to be respectful of that, and yet you feel like no it's not appealable, despite all of his efforts to make it appealable, to facilitate the appeal by allowing Ms.Stillinger to put it in a separate cause number, you still think it's not appealable.

Murphy: Well I think this is a distinction between criminal cases and civil cases. There's not a 1292 analogue here. The judge can't say this is final because I think it should be appealable. The judge, the district court can do whatever it wants to try to facilitate appeal but that in and of itself does not create appellate jurisdiction. I do think again that mandamus is available here, so I'm not saying this court can't do anything if it believes that this is inappropriate, but I just don't see how the fact that the district court wanted to facilitate appeal is in and of itself dispositive of the question of...

Judge Haynes: I don't think it's dispositive. I just think it's noteworthy.

Murphy: I will go with noteworthy.

Judge Haynes: We'll let you wrap up. Sorry, I know we've interrupted you a lot.

[35:00]

Murphy: That's alright. No problem. I don't think this court has jurisdiction over this appeal so I think the appropriate relief if the court would be to grant any would be mandamus. I don't think mandamus is appropriate here for two reasons. First, because I believe the district court had jurisdiction here because this representation was provided in relation to a matter before the court. And second because it would be unusual to say the least to grant mandamus to allow what the district court has concluded is inappropriate multiple representation if you could be allowed to continue in this investigation. Are there no further questions?

Stillinger: I was arguing in the district court that NEED TO LISTEN TO THIS Just to go back to the idea of what it means that this particular matter has a separate case number, that it had nothing to do, and it's a very curious situation because actually the motion to disqualify me was filed before any of the criminal informations were filed against any of the defendants that have now plead guilty, so this case number when it was first filed, it was who knows what. It was some criminal case number I have no idea whatever was filed in that case number previously was not public record, so the motion to disqualify me was filed in 2007. It had a 2006 case number, which seemed very curious and then later that's where all of the criminal informations ended up getting filed against everybody else who has now plead guilty in the case. I don't think it was properly filed. I filed a motion to strike the pleadings as improperly filed. I know the district court said that there was no impropriety, but he also did find that it should have had a separate case number. What I take that to mean, I was alleging basically that it was forum shopping, and I think what he's saying is he disagreed with that, he disagreed that the government was trying to get the case to him for some bad motive. But he did think that it should have a separate case number. Normally when you file a motion for return of property and there's no criminal proceeding, it's assigned a miscellaneous case number at the district clerk's office. That's what I was saying should have happened in my case, it should have been filed separately, should have gotten a miscellaneous case number, should have been randomly assigned to one of our four sitting district courts. It didn't happen, but eventually it got the separate case number, and so...

Judge Elrod: Why didn't it go through the random process at that point?

Stillinger: I don't know. The judge did, he didn't grant my motion to stri..., he granted motion to strike in part finding it should have a separate case number, but he did it in the same order when he disqualified me. So he didn't really explain, but basically at that point he was ruling and I guess it didn't make sense at that point to send it back to somebody else after he had been sitting on it.

Judge Haynes: Would you comment on this rule that Ms. Murphy wants us to adopt which is that in order for court to have jurisdiction to disqualify counsel it needs to be a matter before the court in some way, some sort of criminal investigations going on that the individuals who have hired the counsel sought to be disqualified are targets, and that the individuals sought to be disqualified as an officer of the court in question. Tell me what's wrong with that ruling...

Stillinger: Clearly the district court thought it needed some hook of jurisdiction and clearly it did. And that's why it found anomalous jurisdiction. I don't think it was a fleeting reference, the government describes a fleeting reference to anomalous jurisdiction, but clearly, the district court said, and I'm on page 24 of its order, anomalous jurisdiction gives this court authority to entertain the merits of matters arising from federal criminal investigations under its supervision, regardless of whether the targets of the investigation are actually under indictment. What the court was laying out, I think is a rule of if this investigation is under my supervision then I have jurisdiction over any target, which I think is what the government is saying right now. There is a number of problems with that. One is that I really don't know what that means when a judge is supervising an investigation. That's one issue. Certainly judges can issue wire taps, can issue search warrants, but supervising and investigation is odd language, and it seems to me that if you're supervising an investigation then you should not necessarily be sitting as a judge on any matters having to do with that investigation. That's one problem, I think. But what is the evidence that my clients, I mean shouldn't there be some showing from the government that my clients are targets? Are they subjects, are they targets? Is that just because the government says so? You get into a very gray area. In this case what said that there were 80 persons of interest is what the judge said in his recent order, 80 persons. So are those 80 people that the judge can say this is we're going to review who your lawyers are. What's to prevent the government from coming forward, saying we'd like to go over this list of 80 people and see who their lawyers are. Because rule 44 for instance is a procedure in the rules and says that a judge shall inquire when two people are indicted in the same indictment, the judge inquires whether the government raises it or not. It is a rule. Judge must inquire. In this case the government can file it when they want to. And if they don't want to file it on this lawyer over here, they don't file it. So it gives the government an unusual authority to have some influence who the lawyers are in an investigation.

[40:00]

Judge Elrod: Do they even have the right to know who the lawyers are at that stage?

Stillinger: I don't think they do. Really, if the FBI knocks on somebody's door and they say I don't want to talk to you, I have a lawyer, I suppose the agent can ask well who is your lawyer and they can tell them or they don't have to tell them.

Judge Prado: How were they aware that you were the lawyer?

Stillinger: Because in this particular case I did what I thought was the ethical thing. I picked up the phone and called the U.S. attorney and said do you see any conflicts. Initially they thought there was a conflict, I put this in my motion, I'm not just talking out of school. Initially they thought there was a conflict between Mr. Roark and Mr. Duntley, but later they decided there wasn't. Then when Mr. Lopez came into the picture they thought there was, but I asked, what is it. What can you tell me? But I never saw it. But that's how they knew, because I took the initiative to make them aware.

Judge Prado: Have these people since then hired other counsel?

Stillinger: They all have other counsel, yes, but there's nothing to enter an appearance in.

Judge Prado: So they each have their own individual lawyer?

Stillinger: Yes.

Judge Haynes: So they don't want you? I mean is this matter still ripe?

Stillinger: They're probably, of course, completely outside the record, hoping they don't ever need me for anything, but yes I would say that the matter is still ripe. Very much so. Clearly the investigation is ongoing.

Judge Prado: They might like their new lawyers. Nothing has happened since they've had these lawyers.

Stillinger: One of the things a lawyer does as this stage is they have the ability to try to explain to the government this person didn't do anything...

Judge Haynes: We understand that avoiding indictment is a meaningful thing.

Stillinger: And my time is up, so if I have no other questions, thank you.