680 F.

2d 881

UNITED STATES of America, Appellee,

v.
Francis CURCIO and Gus Curcio, Defendants-Appellants.
No. 1000, Docket 82-1066.

United States Court of Appeals,

Second Circuit.
Argued March 12, 1982.
Decided May 26, 1982.

Elaine S. Amendola, Bridgeport, Conn. (Jacob D. Zeldes, Zeldes, Needle

& Cooper, P. C., Bridgeport, Conn., on the brief), for defendantsappellants.
Richard D. Gregorie (Strike Force Atty.), New Haven, Conn. (U. S. Dept.
of Justice, Organized Crime & Racketeering Section, Alan H. Nevas, U.
S. Atty., D. Conn., New Haven, Conn., on the brief), for appellee.
Before TIMBERS, KEARSE, and CARDAMONE, Circuit Judges.
KEARSE, Circuit Judge:

Defendants Francis Curcio and Gus Curcio, brothers, appeal from an order of
the United States District Court for the District of Connecticut, T. F. Gilroy
Daly, Judge, disqualifying their counsel in a pending criminal prosecution. Both
Francis and Gus had retained Jacob D. Zeldes, Esq., and his firm, Zeldes,
Needle & Cooper, P. C., to represent them. The court ruled that Zeldes and his
firm could represent neither brother in the present case on the grounds that
Zeldes's past, continuing, and proposed representation of each defendant
presented Zeldes with conflicting interests and that neither defendant had made
a knowing and intelligent waiver of his right to be represented by counsel free
of any conflict of interest. Because we conclude that, in all the circumstances,
the defendants were not given an adequate opportunity to make a knowing and
intelligent waiver of their rights to conflict-free representation, we vacate the
district court's order and remand the matter for further proceedings.

FACTS
2

The present prosecution was commenced on January 13, 1982, with the filing
of a seven-count indictment charging Gus Curcio with five counts of making
extortionate extensions of credit, in violation of 18 U.S.C. 892 and 2 (1976);
charging Francis Curcio with the same five counts, plus a sixth count, of
making extortionate extensions of credit; and charging Francis, Gus, and three
other persons (two of whom were also named in various substantive counts)
with conspiracy to make extortionate extensions of credit in violation of 892.
The conspiracy count alleges that pursuant to the conspiracy Francis made such
extensions of credit and directed Gus and the other defendants to make such
extensions of credit.

Zeldes has represented each of the Curcio brothers in a series of criminal

matters since 1969. He has defended Francis against charges of extortion,
interstate travel in aid of racketeering, making false statements on a tax form,
violating probation, and violating numerous Connecticut gambling laws. He has
defended Gus against charges of gambling, sale and possession of marijuana,
possession of LSD, interfering with a police officer, and murder. At the
arraignment of the Curcios in the present action on January 28, Zeldes
informed the court that he generally represented the Curcios and would
probably represent them in the present matter, but he declined to enter a formal
appearance until he had reviewed the possibility of a conflict of interest. The
district judge directed the Curcios to return to court on February 5 for a
determination of who would represent them.

On February 5 the government moved, pursuant to Fed.R.Crim.P. 44(c), 1 to

disqualify Zeldes "as attorney for Francis and/or Gus Curcio" on two grounds.
First, the government contended that Zeldes's representation of both Curcios in
the present case would present a conflict of interest because the indictment
attributes a different role to Francis than to Gus, and the Curcios may have
different defenses available to them. Second, the government contended that
neither Curcio should be represented by Zeldes because Zeldes's continuing
representation of both brothers on other criminal matters presented Zeldes with
a conflict of interest here as to each. Zeldes's brief on behalf of the Curcios,
filed minutes after the government filed its motion, argued that a criminal
defendant has a right under the Sixth Amendment to the Constitution to be
represented by counsel of his choice and that he may waive his right to separate
representation.

The court immediately held a hearing in which it heard oral argument from
attorneys for both sides and questioned the defendants. The hearing was

conducted under unusual time constraints, for on February 5 Gus was

appearing, with Zeldes nearby for consultation as needed, before a state grand
jury in connection with a murder for which Gus was then under investigation.
The hearing in the present case was accordingly held in less than one hour,
during the luncheon recess of the grand jury.
6

After hearing from the attorneys, the court questioned Gus Curcio. Gus stated
that he was a high school graduate and had attended college for half a semester,
that he had previously been a defendant in a felony trial, that Zeldes had
advised him of his right to separate and independent counsel, that he understood
this right, that he was aware that the court would find counsel for him if
necessary, and that he understood that the case might develop in an
unanticipated way to make his interest "very adverse" to that of a codefendant.
Gus stated that he nevertheless waived his right to conflict-free representation
in order to be represented by Zeldes. He also stated that he would waive his
attorney-client privilege with respect to any of his communications with Zeldes
to the extent that Zeldes wished to use the information on behalf of Francis.
The court then asked Gus if he understood the possible conflicts between his
and Francis's interests in deciding at trial whether or how to cross-examine
witnesses or in deciding whether he or Francis should testify. Gus indicated that
he understood, but inquired if he might later be allowed to discharge Zeldes.
The court explained that this would be permitted only if "it meant no delay at
any time in the proceedings." Gus reaffirmed his waiver on that basis.

The court then examined Francis Curcio along similar lines. Francis stated that
he had reached the final year of high school but had not completed it, that he
understood his right to separate counsel, that he realized that the court would
find counsel for him if necessary, that he knew that conflicts of interest might
arise, particularly in the cross-examination of witnesses and the decision
whether or not he or Gus should testify, and that he realized that it was
impossible to predict with certainty what conflicts might arise. Francis stated
that he nevertheless waived his right to an attorney who was free of all conflict
in order to retain Zeldes. He also stated that he would waive his attorney-client
privilege with respect to any of his communications with Zeldes to the extent
that Zeldes wished to use the information on behalf of Gus.

At the conclusion of the hearing, the court orally granted the government's
motion and ruled that Zeldes and his firm could represent neither defendant.
The court read our previous decisions, e.g., Camera v. Fogg, 658 F.2d 80 (2d
Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 981, 71 L.Ed.2d 117 (1981); United
States v. DeFillipo, 590 F.2d 1228, 1237-38 (2d Cir.), cert. denied, 442 U.S.
920, 99 S.Ct. 2844, 61 L.Ed.2d 288 (1979); United States v. Mari, 526 F.2d

117, 119-21 (2d Cir. 1975) (Oakes, J., concurring), cert. denied, 429 U.S. 941,
97 S.Ct. 359, 50 L.Ed.2d 311 (1976), as suggesting that "trial judges should not
allow (an attorney to represent more than one defendant in a criminal case)
except in extraordinary circumstances"; the court stated that it found no such
circumstances in the present case. Transcript at 34. On February 8, the court
filed a memorandum of decision holding that neither defendant had made a
knowing and intelligent waiver of his rights; and, citing Camera, DeFillipo,
Mari, and United States v. Carrigan, 543 F.2d 1053, 1057-58 (2d Cir. 1976)
(Lumbard, J., concurring), it concluded that a knowing and intelligent waiver is
rarely possible unless a conflict is outside the realm of reasonable
foreseeability.
9

The appeal followed.

DISCUSSION
10

The appeal presents two sets of questions as to a criminal defendant's Sixth

Amendment right to the effective assistance of counsel. First is the individual
defendant's right to prefer representation by an attorney of his choosing over
representation by any attorney of undivided loyalty-raising questions we have
recently discussed in United States v. Cunningham, 672 F.2d 1064 (2d Cir.
1982), decided some two weeks after the district court's decision in the present
case. The second matter, not raised by Cunningham, is the rights of two or
more defendants to insist on being represented by the same counsel. In the
circumstances of the present case, we conclude that the answers to both
inquiries will depend on whether and to what extent Francis and Gus make
knowing and intelligent decisions to waive the right to representation by an
attorney of undivided loyalty.

A. Representation of Either Francis or Gus

11

In United States v. Cunningham, supra, we dealt with an attempt by the

government to disqualify counsel for Cunningham on the ground that his longtime counsel, Michael Tigar, had once represented an associate of Cunningham
who would be a witness for the government at Cunningham's trial. The witness
had been a defendant in an aborted trial in a related case, in preparation for
which he had been represented briefly by Tigar; the witness did not object to
Tigar's continued representation of Cunningham and did not join in the
government's disqualification motion. On the other hand, the witness did not
waive his right to assert his attorney-client privilege with respect to his
communications with Tigar. Cunningham, an experienced attorney and
politician, maintained, after extensive questioning by the court, that he wished

to be represented by Tigar despite Tigar's conflict of interest. Cunningham

stated his willingness to have Tigar's cross-examination of the witness limited
to matters appearing in the record of the witness's own trial, thus protecting the
witness's right to preserve the confidentiality of his privileged communications
to the extent he had not waived it. We observed that a criminal defendant has
not only a constitutional right to an attorney who has no conflict of interest but
also a right-of constitutional dimension, although not absolute-to counsel of his
own choosing, e.g., United States v. Wisniewski, 478 F.2d 274, 285 (2d Cir.
1973); United States v. Sheiner, 410 F.2d 337, 342 (2d Cir.), cert. denied, 396
U.S. 825, 90 S.Ct. 68, 24 L.Ed.2d 76 (1969), and that the latter right should not
be obstructed unnecessarily, id.; United States v. Bernstein, 533 F.2d 775, 788
(2d Cir. 1976). We noted further that the government's interest in disqualifying
Tigar, since the government had no attorney-client privilege of its own to
protect, was "relatively weak." Compare Cunningham with United States v.
Ostrer, 597 F.2d 337 (2d Cir. 1979) (upholding disqualification of defense
counsel who was a former government attorney in related matters). We held
that in such circumstances, when the defendant's two rights conflict, the
decision as to which is to take precedence should be left to the defendant.
Cunningham thus established that where the former client does not seek
disqualification and his rights can be adequately safeguarded, the interests of
the former client, the interest of the public in the integrity of the judicial
system, and the interests of the defendant are best protected by honoring the
defendant's knowing and intelligent decision to waive his right to an attorney of
undivided loyalty in order to retain the attorney of his choice.
12

Applying this principle to the case before us, and leaving aside questions as to
the propriety of joint representation, we see no reason why either Francis or
Gus Curcio, individually, could not make a knowing and intelligent election to
be represented by Zeldes despite the existence of a conflict of interest. The
government's interest in disqualification, which was "relatively weak" in
Cunningham, is even less persuasive here. Here the attorney-client privilege
the government asserts is neither its own nor one belonging to a government
witness, but rather one belonging to a defendant. Further, that defendant has not
only stated that he does not object to Zeldes's representation of his brother,
which was the extent of the concession of the client-witness in Cunningham,
but has stated that he will waive his privilege to the extent that Zeldes wishes to
use any of his confidential communications to defend his brother. If Zeldes
were to represent either Gus alone or Francis alone, therefore, the present
record suggests that the interests of the Curcio to be represented by Zeldes, the
interests of the other Curcio, and the interest of the public in the administration
of justice-including the government's interest in preserving an eventual
conviction against attack on these grounds-could adequately be protected.

13

As discussed in Part C., infra, however, the context in which the Curcios have
attempted their waivers is not sufficiently clear for the court to determine
without further inquiry that either Curcio has made the knowing and intelligent
decision that is required for the court to recognize the waiver of a constitutional
right.

B. Representation of Both Francis and Gus

14

We believe that the matter of the rights of two or more defendants to be

represented by the same attorney is governed by the same principles, although
the dangers inherent in an attorney's representing more than one defendant in
the same criminal proceeding make the contours of a knowing and intelligent
waiver a good deal more complicated.

15

We start with the recognition that, while a criminal defendant has an absolute
right under the Sixth Amendment to be represented by an attorney who has no
conflict of interest, Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55
L.Ed.2d 426 (1978); Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457,
464, 86 L.Ed. 680 (1942), the effect of the Sixth Amendment guarantee is to
grant a right, not to impose an obligation. Accordingly, in considering whether
a defendant may forgo altogether representation by an attorney, the Supreme
Court has ruled that the Sixth Amendment grants a right which the defendant
may, "if he knows what he is doing and his choice is made with eyes open,"
waive. Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct.
236, 241, 87 L.Ed. 268 (1942). Stating that "(w)hat were contrived as
protections for the accused should not be turned into fetters," id., the Court
recognized that to forbid the waiver of a protected right would be to "imprison a
man in his privileges and call it the Constitution," id. at 280, 63 S.Ct. at 242.
Similarly, in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562
(1975), the Court ruled that a state may not compel a defendant to accept
representation by an attorney if he chooses to forgo it, observing that although
the defendant "may conduct his own defense ultimately to his own detriment,
his choice must be honored out of 'that respect for the individual which is the
lifeblood of the law.' " Id. at 834, 95 S.Ct. at 2540 (quoting concurring opinion
of Brennan, J., in Illinois v. Allen, 397 U.S. 337, 350-51, 90 S.Ct. 1057, 1064,
25 L.Ed.2d 353 (1970)).

16

Just as a defendant may waive the Sixth Amendment protections accorded him
by electing to forgo counsel entirely, so may he waive his right to separate
representation in a multidefendant prosecution. Thus, in Holloway v. Arkansas,
supra, while holding that the trial court must explore the possibilities of conflict
of interest where codefendants make timely motions for separate

representation, the Supreme Court noted that

17
(r)equiring
or permitting a single attorney to represent codefendants, often referred
to as joint representation, is not per se violative of constitutional guarantees of
effective assistance of counsel. This principle recognizes that in some cases multiple
defendants can appropriately be represented by one attorney; indeed, in some cases,
certain advantages might accrue from joint representation. In Mr. Justice
Frankfurter's view: "Joint representation is a means of insuring against reciprocal
recrimination. A common defense often gives strength against a common attack."
18

435 U.S. at 482-83, 98 S.Ct. at 1177-78 (quoting dissenting opinion of

Frankfurter, J., in Glasser v. United States, supra, 315 U.S. at 92, 62 S.Ct. at
475). The principle that multiple representation is not impermissible emerged
from the Glasser Court's treatment of the two jointly represented defendants
before it, only one of whom had clearly consented to the joint cliency. The
Court found a violation of the constitutional rights of the defendant who had
objected to having his attorney represent the other defendant, but found no such
violation of the rights of the defendant who had consented. 315 U.S. at 68-77,
62 S.Ct. at 464-68.

19

The principle that the right to separate representation may be waived finds its
most recent support in the Supreme Court's decision in Cuyler v. Sullivan, 446
U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), in which the same pair of
retained attorneys represented three defendants charged with murder. The Court
ruled that the mere fact of the multiple representation was not sufficient to
establish a violation of Sixth Amendment rights, nor even to alert the state trial
court that there might be need for an inquiry into potential conflicts of interest.2
The Court stated that "(a)bsent special circumstances, ... trial courts may
assume either that multiple representation entails no conflict or that the lawyer
and his clients knowingly accept such risk of conflict as may exist." Id. at 34647, 100 S.Ct. at 1717 (footnote omitted). The Court construed its earlier
decision in Holloway v. Arkansas, supra, as confirmation that multiple
representation is not impermissible:

20

Holloway reaffirmed that multiple representation does not violate the Sixth
Amendment unless it gives rise to a conflict of interest. See 435 U.S., at 482 (,
98 S.Ct., at 1177). Since a possible conflict inheres in almost every instance of
multiple representation, a defendant who objects to multiple representation
must have the opportunity to show that potential conflicts impermissibly
imperil his right to a fair trial. But unless the trial court fails to afford such an
opportunity, a reviewing court cannot presume that the possibility for conflict
has resulted in ineffective assistance of counsel.

21

Cuyler v. Sullivan, supra, 446 U.S. at 348, 100 S.Ct. at 1718.

22

The decisions of our own Court similarly have recognized, although not
without serious misgivings, that an attorney may represent more than one
defendant in a criminal prosecution if those defendants so elect knowingly and
willingly. See, e.g., Kaplan v. Bombard, 573 F.2d 708, 712 (2d Cir. 1978) ("
'the joint representation of defendants is not per se a denial of the effective
assistance of counsel.' ") (quoting People v. Gomberg, 38 N.Y.2d 307, 312, 379
N.Y.S.2d 769, 342 N.E.2d 550 (1975)); United States v. Carrigan, supra, 543
F.2d at 1055 ("The mere representation of two or more defendants by a single
attorney does not automatically give rise to a constitutional deprivation of
counsel."); United States v. Mari, supra, 526 F.2d at 119. But see id. at 120-21
(Oakes, J., concurring: it is "only ... in those exceptional circumstances where a
conflict is not within the realms of reasonable foreseeability that dual
representation by defense counsel should be permitted."); United States v.
Carrigan, supra, 543 F.2d at 1058 (Lumbard, J., concurring: "The right to
effective representation by counsel whose loyalty is undivided is so paramount
in the proper administration of criminal justice that it must in some cases take
precedence over all other considerations, including the expressed preference of
the defendants concerned and their attorney.").

23

Our uneasiness about sanctioning the joint representation of criminal

defendants persists because the dangers of prejudicial conflict are both
ubiquitous and insidious. "(A) possible conflict inheres in almost every instance
of multiple representation," Cuyler v. Sullivan, supra, 446 U.S. at 348, 100
S.Ct. at 1718, in part because the interests of the defendants may diverge at
virtually every stage of the proceeding, see generally Geer, Representation of
Multiple Criminal Defendants: Conflicts of Interests and the Professional
Responsibilities of the Defense Attorney, 62 Minn.L.Rev. 119 (1978). Thus,
the joint attorney may have to prefer the interests of one defendant over the
other in deciding, for example, whether to accept or reject a plea bargaining
offer to one defendant conditioned on that defendant's testifying against the
other; whether or not to present a defense that helps one defendant more than
the other; whether or not to cross-examine a witness whose testimony may help
one defendant and hurt the other; whether to have one defendant testify while
the other remains silent; whether to have neither defendant testify because one
would be a poor or vulnerable witness; whether or not to emphasize in
summation that certain evidence is admitted only against (or is less compelling
against) one defendant rather than the other; whether or not to argue at
sentencing that one defendant's role in the criminal enterprise was shown only
to be subordinate to that of the other defendant. These dilemmas are insidious
because it often is not clear that the conflict of interests, and not pure trial

strategy, are the reasons for the tactics adopted-or forgone-at trial. As the
Supreme Court observed in Holloway v. Arkansas, "(j)oint representation of
conflicting interests is suspect because of what it tends to prevent the attorney
from doing," 435 U.S. at 489-90, 98 S.Ct. at 1181; "in a case of joint
representation of conflicting interests the evil-it bears repeating-is in what the
advocate finds himself compelled to refrain from doing, not only at trial but
also as to possible pretrial plea negotiations and in the sentencing process," id.
at 490, 98 S.Ct. at 1181 (emphasis in original).
24

Notwithstanding the considerable dangers, however, the teaching of the

Supreme Court in Glasser, Holloway, and Cuyler is that defendants may, if
they act with their eyes open, elect to be represented jointly by a single
attorney.3 The recently adopted Fed.R.Crim.P. 44(c), set forth at note 1, supra,
does not eliminate the defendant's power to waive his right to be represented by
a conflict-free attorney. While the rule imposes on the trial court the duty to
make prompt inquiries and to advise the jointly represented defendants as to
their rights to separate representation, it does not forbid joint representation. It
merely requires that where a conflict may arise "the court shall take such
measures as may be appropriate to protect each defendant's right to counsel."
Given the constitutional dimension of the defendant's right to counsel of his
own choosing, if the defendant makes a knowing and intelligent election to
pursue that right in preference to his right to an attorney of undivided loyalty,
disqualification would not protect the Sixth Amendment right that the
defendant asserts and would not be "appropriate."

C. "Knowing and Intelligent"

25
26

Whether the question be the right of a single defendant to be represented by the

attorney of his choice despite that attorney's conflict of interest or the rights of
codefendants to share an attorney, the most fundamental and difficult problem
for the court is determining whether or not the choice is pursued knowingly and
intelligently.

27is reasonably clear under (Supreme Court) cases that waivers of counsel must not
It
only be voluntary, but must also constitute a knowing and intelligent relinquishment
or abandonment of a known right or privilege, a matter which depends in each case
"upon the particular facts and circumstances surrounding that case, including the
background, experience, and conduct of the accused."
28

Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378
(1981) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82
L.Ed. 1461 (1938)).

29

The first task of the trial court is to alert the defendants to the substance of the
dangers of representation by an attorney having divided loyalties in as much
detail as the court's experience and its knowledge of the case will permit. If
each defendant persists in his request for joint representation, the court must
assess whether the request is, as to each defendant, knowing and intelligent.
This does not mean that the defendant must be able to predict with certainty
which dilemmas will present themselves to counsel or how counsel will resolve
them. Defendants need not be prescient. Nor need their decision be what an
objective observer would deem sensible, prudent, or wise. The Supreme Court
"consistently has 'rejected any paternalistic rule protecting a defendant from his
intelligent and voluntary decisions about his own criminal case.' " Edwards v.
Arizona, supra, 451 U.S. at 490-91, 101 S.Ct. at 1888 (Powell, J., concurring)
(quoting Michigan v. Mosley, 423 U.S. 96, 109, 96 S.Ct. 321, 329, 46 L.Ed.2d
313 (1975) (White, J., concurring)). Rather, the defendants must be informed,
and they must have the capacity for making a rational decision. See, e.g.,
Faretta v. California, supra, 422 U.S. at 835, 95 S.Ct. at 2541 (defendant with
high school education was "literate, competent, and understanding, and ...
voluntarily exercising his informed free will," and should have been allowed on
that basis to forgo counsel altogether). If the defendant reveals that he is aware
of and understands the various risks and pitfalls, and that he has the rational
capacity to make a decision on the basis of this information, and if he states
clearly and unequivocally, see United States v. Bernstein, supra, 533 F.2d at
788, that he nevertheless chooses to hazard those dangers, we would regard his
waiver as knowing and intelligent and allow his choice to "be honored out of
'that respect for the individual which is the lifeblood of the law.' " Faretta v.
California, supra, 422 U.S. at 834, 95 S.Ct. at 2540 (quoting concurring opinion
of Brennan, J., in Illinois v. Allen, supra, 397 U.S. at 350-51, 90 S.Ct. at 1064).

30

In assessing the level of each defendant's comprehension of the dangers, the

court may perhaps devise a variety of methods for gaining the necessary
insights. On the whole, we think that questions designed to elicit from the
defendant a narrative statement of his understanding are preferable to questions
designed to elicit mere "yes" or "no" answers. The former methods are used by
the court pursuant to Fed.R.Crim.P. 11 in determining whether to accept an
attempted waiver of the right to an attorney with undivided loyalty. See, e.g.,
United States v. Garcia, 517 F.2d 272, 277-78 (5th Cir. 1975):

31 in Rule 11 procedures, the district court should address each defendant

As
personally and forthrightly advise him of the potential dangers of representation by
counsel with a conflict of interest. The defendant must be at liberty to question the
district court as to the nature and consequences of his legal representation. Most
significantly, the court should seek to elicit a narrative response from each defendant

that he has been advised of his right to effective representation, that he understands
the details of his attorney's possible conflict of interest and the potential perils of
such a conflict, that he had discussed the matter with his attorney or if he wishes
with outside counsel, and that he voluntarily waives his Sixth Amendment
protections. Cf. United States v. Foster, 469 F.2d 1 (1st Cir. 1972). It is, of course,
vital that the waiver be established by "clear, unequivocal, and unambiguous
language." National Equipment Rental v. Szukhert, 375 U.S. 311 (, 332-33), 84 S.Ct.
411 (, 423-24,) 11 L.Ed.2d 354, 367-8 (1964). Mere assent in response to a series of
questions from the bench may in some circumstances constitute an adequate waiver,
but the court should nonetheless endeavor to have each defendant personally
articulate in detail his intent to forego this significant constitutional protection.
32

Id. at 278.

33

Further, the court's inquiry in each instance should take place after the
defendants have had a reasonable time to digest and contemplate the risks posed
by joint representation. A reasonable time was not provided in the present case.
The hearing, including the court's entire lecture to and questioning of the
defendants, was held in less than an hour, squeezed into the luncheon break of
a state grand jury. The court's decision was rendered at the conclusion of this
brief hearing. Although the date for the hearing had been set a week earlier, and
the possibility of Zeldes's conflict of interest was obviously to be the subject of
the hearing, there was no opportunity for deliberation by the Curcios in light of
the government's motion to disqualify Zeldes, because the hearing was held
barely an hour after that motion was filed. Thus, at the hearing Zeldes stated
that he had not had an opportunity for a discussion with Gus in light of the
government's motion, and the circumstances indicate that he had had no
opportunity for such a discussion with Francis either. Indeed it appears that
Zeldes's efforts during the hearing to make up for this lack of opportunity
contributed to the district court's decision to disqualify Zeldes, as the court
based its finding that the Curcios' waivers were not knowingly and intelligently
made

34 only on the inherent difficulty involved in a defendant's ability to foresee what

not
conflicts might arise during the course of a criminal proceeding, see Camera v. Fogg
(supra ), but also on the fact that during the course of the hearing it became apparent
to the Court that important factors regarding Mr. Zeldes representation had not been
considered by either of the defendants. There were several hasty conferences
between Mr. Zeldes and his associate, Ms. Amendola, as well as between Gus
Curcio (who was the first to state his willingness to waive certain rights) and Mr.
Zeldes. As the record will reflect, Mr. Zeldes, at one point during the Court's
inquiry as to waivers, stated that he had not discussed with Gus a crucial facet of the

difficulties involved in his joint as well as his continuing representation of each of

the Curcios. Shortly thereafter, Mr. Gus Curcio, apparently realizing the breadth of
the waiver he was making inquired of the Court whether he could fire his lawyer
when and if a conflict should become apparent. While this might indeed be possible,
the resulting interruption and delay in the proceedings prompts this Court to avoid
now, at a preliminary stage, what could and very well might occur at mid trial or
which might not become fully apparent until after the trial was completed.
35

Slip op. at note 6.

36

We recognize that criminal proceedings in the district court must be moved

along with dispatch, especially if a defendant remains incarcerated pending
trial.4 But recognition must be given to the fact that a defendant's right to
counsel of his choice, albeit not absolute, is a right of constitutional dimension.
Hence, the district court should not require that a defendant who would resist
the government's efforts to disqualify his attorney assess the problems instantly
or make his decision without pause for reflection. Cf. Powell v. Alabama, 287
U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932) (denial by state court of a reasonable
time to allow the selection of counsel of one's own choosing may violate due
process). Rather, the court should advise the defendant of his right to separate
and conflict-free representation, instruct the defendant as to problems inherent
in being represented by an attorney with divided loyalties, allow the defendant
to confer with his chosen counsel, encourage the defendant to seek advice from
independent counsel, and allow a reasonable time for the defendant to make his
decision. If a reasonable time is not allowed to the defendant, both the
opportunity for the defendant to make a knowing and intelligent decision and
the opportunity for the court to assess correctly whether such a decision has
been made are minimized.

37

Finally, as to the right of either Curcio to be represented by Zeldes, with the

other Curcio represented by separate counsel, no reason appears on the present
record why, in light of United States v. Cunningham, supra, such single
representation would be inconsistent with the interests of either of the Curcios
or with the proper administration of justice. The record as it presently stands,
however, is inconclusive because the statements of both Curcios were made in
the context of a government attack on both joint and individual representation.
We can envision circumstances in which each codefendant would state his
willingness to waive his attorney-client privilege and tolerate other conflicts in
order to secure joint representation, but be unwilling to do so if only the other
defendant was to be represented by the attorney in question. This is an
especially real possibility where each defendant has been represented by the
attorney in the past.5 Thus, we believe the ambiguous procedural circumstances

of the inquiry here makes premature a conclusion as to whether either Gus or

Francis, singly, could proceed with Zeldes as his attorney.
38

On remand, therefore, we suggest that the district court conduct the prescribed
catechism with respect to the Curcios' desire to be represented jointly by
Zeldes. If, after a reasonable opportunity for them to consider the problems to
which they will have been alerted, they adhere to their choice of Zeldes, the
court should honor this decision if it determines that it is knowing and
intelligent as we have explicated that term. If the court determines that this
decision is not knowing and intelligent, the court should inform the Curcios
that joint representation by Zeldes will not be allowed, and should inquire
whether either defendant wishes to be represented separately by Zeldes. If
either does,6 the court should make inquiries and impose restrictions adequate
to safeguard such rights of the other Curcio as the latter wishes to preserve, and
should make inquiries to ascertain whether in light of the mandated safeguards,
the Curcio to be represented by Zeldes nevertheless knowingly and intelligently
elects to proceed.

39

The order of the district court is vacated and the case is remanded for
proceedings not inconsistent with this opinion.

Fed.R.Crim.P. 44(c), which became effective on December 1, 1980, provides:

Whenever two or more defendants have been jointly charged pursuant to Rule
8(b) or have been joined for trial pursuant to Rule 13, and are represented by
the same retained or assigned counsel or by retained or assigned counsel who
are associated in the practice of law, the court shall promptly inquire with
respect to such joint representation and shall personally advise each defendant
of his right to the effective assistance of counsel, including separate
representation. Unless it appears that there is good cause to believe no conflict
of interest is likely to arise, the court shall take such measures as may be
appropriate to protect each defendant's right to counsel.

The Court noted that then-proposed Fed.R.Crim.P. 44(c), see note 1. supra,
would require such an inquiry by the federal district courts

The issue before us in the present appeal has focused on the Sixth Amendment
rights of the defendants. As we noted in United States v. Cunningham, supra,
672 F.2d at 1070, "(t)his constitutional guarantee generally ensures that a
criminal defendant may be represented by any counsel who will agree to take
his case." Whether or not as a matter of ethical propriety Zeldes should agree to

take the present case of either of the Curcios is not the issue before us, and our
decision to vacate the district court's disqualification, does not in any way
derogate from the American Bar Association's Code of Professional
Responsibility, Disciplinary Rule 5-105(B) which provides:
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 (Disciplinary Rule) 5-105(C),
or Disciplinary Rule 5-105(C) which provides:
In the situations covered by (Disciplinary Rule) 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 representation after full
disclosure of the possible effect of such representation on the exercise of his
independent professional judgment on behalf of each.
4

We are informed that one defendant charged in the conspiracy count of the
indictment was unable to post bond and hence remained incarcerated

It is noteworthy that the former client may secure the attorney's

disqualification. See, e.g., United States v. Kaufman, 429 F.2d 240, 247 (2d
Cir.), cert. denied, 400 U.S. 925, 91 S.Ct. 185, 27 L.Ed.2d 184 (1970)

If the Curcios cannot decide between themselves which of them they prefer
Zeldes to represent, the court need not approve Zeldes's representation of either