APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE [Hon. Joseph N. Laplante, U.S.
Benjamin L. Falkner, with whom Krasnoo, Klehm & Falkner
LLP was on brief, for appellant.
R. Aframe, Assistant United States Attorney, with whom John
J. Farley, Acting United States Attorney, was on brief, for
Thompson, Circuit Judge, Souter, [*] Associate Justice, and Selya,
SOUTER, ASSOCIATE JUSTICE.
defendant, Manuel Tirado, pleaded guilty and stands convicted
of drug offenses, 21 U.S.C. §§ 841(a)(1) and
(b)(1)(C), 846, and failure to appear for arraignment, 18
U.S.C. § 3146(a)(1) and (b)(1)(A)(i). He appeals from
the judgments of conviction on Sixth Amendment grounds,
contending that his counsel suffered from a conflict of
interest arising from violation of attorney-client privilege
and a local rule of professional conduct in particular. We
his indictment on the drug charges by the New Hampshire
federal grand jury, the defendant was arrested in New York,
where he was released on bail and ordered to appear before
the district court in New Hampshire at a date and time
specified. He got in touch with a Rhode Island lawyer not
admitted to practice in New Hampshire, Jeffrey Pine, whom he
wished to represent him. According to Mr. Pine's
unchallenged account of events on the arraignment day, the
defendant came to the New Hampshire courthouse in the company
of relations and friends, including someone acting as an
English-Spanish interpreter, and met Mr. Pine near the
courthouse. When he asked Mr. Pine whether he thought the
court would order him committed pending trial, the lawyer
said he couldn't guarantee otherwise, but the proper
course would be to appear at the hearing as scheduled. A very
short time later, the arraignment proceeding began, and
although Mr. Pine and the defendant's local counsel were
present, the defendant was not.
the court asked if anyone knew where the defendant was, Mr.
Pine described their recent conversation in the company of
the relations and friends, including the defendant's
question about commitment and the lawyer's responsive
advice. Some time later, the defendant was arrested, and the
arraignment was held. When local counsel filed a motion to
admit Mr. Pine pro hac vice, the Government requested the
court to conduct a hearing on the motion, on the ground that
it might call Mr. Pine as a prosecution witness to prove the
charge of failing to appear. The next step came when all
parties filed a stipulation that the defendant himself had
signed, stating as fact the substance of what Mr. Pine had
told the court at the uncompleted arraignment hearing, with
the exception of the defendant's question about
commitment and the lawyer's answer.
subsequent hearing for change of pleas to guilty, counsel for
the Government explained that the stipulation then on record
was meant to remove any risk that Mr. Pine might be called as
a Government witness, since the defendant wished to continue
with Mr. Pine as principal counsel. Local defense counsel
agreed that the stipulation accomplished that object, and the
court indicated that there was no longer any risk of a
conflict on Mr. Pine's part at the trial stage. The court
reprised this colloquy at the later sentencing hearing and
was careful to advise the defendant that he was entitled to
representation free of conflict, offering to appoint new
counsel at public expense if the defendant wished to
discharge Mr. Pine for any reason. The defendant declined the
offer and maintained that he desired Mr. Pine to continue to
represent him. The hearing then continued, sentences were
imposed, and the defendant was committed.
defendant, like Tirado, "who raised no objection at
trial[, ] must demonstrate that an actual conflict of
interest adversely affected his lawyer's
performance." Cuyler v.
Sullivan, 446 U.S. 335, 348 (1980). "[I]n order
to show an actual conflict of interest, a defendant must show
that (1) the lawyer could have pursued a plausible
alternative defense strategy or tactic and (2) the
alternative strategy or tactic was inherently in conflict
with or not undertaken due to the attorney's other
interests or loyalties." United States
v. Soldevila-Lopez, 17 F.3d 480, 486 (1st
no merit in the defendant's new position claiming
inadequate representation owing to a conflict of loyalties
stemming from Mr. Pine's response to the court and an
allegedly consequent need to protect himself from
disciplinary action for supposedly violating attorney-client
privilege and the local professional conduct rule. There was,
to begin with, no breach of New Hampshire Rule of
Professional Conduct 1.6, which generally forbids
"reveal[ing] information relating to the representation
of a client." However the terms of that rule might cover
Mr. Pine's response to the court, it is preempted by New
Hampshire Rule of Professional Conduct 3.3(b) and (d), which
obligate counsel "in an adjudicative proceeding[, ] . .
. who knows that a person . . . has engaged in criminal or
fraudulent conduct related to the proceeding[, ] [to] take
reasonable remedial measures, including, if necessary,
disclosure to the tribunal, " even when information
disclosed would "otherwise [be] protected by Rule
1.6." Since the defendant's evident truancy from the
arraignment he had been ordered to attend was a criminal
violation, see 18 U.S.C. § 3146(a)(1), Mr.
Pine's response to the court was obligatory under Rule
reach the same conclusion in otherwise seeing no breach of
the attorney-client privilege in repeating the conversation,
whatever its content might be, simply because the
conversation outside the courthouse apparently occurred in
the personal, not professional, company of others, the
relations and friends. The accuracy of Mr. Pine's
description of these other parties as having been present at
the discussion has never been challenged. The consequence is
that when speaking with them present, the defendant could not
assume that his words were privileged statements to his
lawyer, and thus no right to preserve privilege could attach.
Lluberes v. Uncommon Prods., LLC,
663 F.3d 6, 24 (1st Cir. 2011) (the privilege "ceases .
. . when otherwise privileged communications are disclosed to
a third party"); see also United States
v. Evans, 113 F.3d 1457, 1467-68 (7th Cir.
1997) (presence of friend and potential character witness
vitiated the privilege). While we do not understand that the
need for the presence of an interpreter implicated the rule
in these cases, United States v. Massa.
Inst. of Tech., 129 F.3d 681, 684 (1st Cir. 1997), the
whole assemblage was not an interpreter.
further line of reasoning confirms our rejection of the
defendant's current position: the record is devoid of any
indication that in the district court anyone suggested that
Mr. Pine's answer to the judge violated his duty to the
defendant and raised a potential for conflict on the part of
counsel. It was not the pure disclosure to the court but the
specter of his being called as a Government witness at trial
that was raised as an issue of conflict, and any such
conflict would only occur in the future. The absence in the
district court of any accusation of other actual or possible
impropriety means that the defendant can be entitled to
relief on the ground he raises only if he can demonstrate
that "an actual conflict of interest adversely affected
[Mr. Pine's] performance." Cuyler, 446 U.S.
at 348. The defendant has done no such thing and, for reasons
already given, cannot do so.
quite independently of the Cuyler and
Soldevila-Lopez rules, any conceivable resulting
tension in the lawyer's mind between client loyalty and
professional self-preservation would have been answered by
the stipulation joined and repeatedly avowed by the
defendant. The court's conversation with the defendant,
and assurance that new counsel could be appointed to
eliminate any conflict with his lawyer's obligation to
him as ...