JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on the United States Sealed Motion Regarding Attorney Conflict, filed April 4, 2018 (Doc. 2071) (Motion). The primary issue is whether the Defendant Arturo Arnulfo Garcias attorney, Billy Blackburn, can continue to represent A. Garcia notwithstanding Mr. Blackburns prior representation of James Garcia, one of Plaintiff United States of Americas witnesses, in a state court murder prosecution. In the case in which Mr. Blackburn represented J. Garcia, J. Garcia was found guilty of Murder in the 2nd Degree, Tampering with Evidence and Possession of Firearm or Destructive Device by a Felon on November 28, 1995. Motion at 2. The murder was not an SNM related homicide. Motion at 2.
The United States District Court for the District of New Mexico requires attorneys representing criminal defendants to comply with the Rules of Professional Conduct adopted by the Supreme Court of the State of New Mexico. D.N.M. LR-Cr R. 57.2. Those rules impose two distinct duties vis-à-vis an attorneys former clients. The first is a duty of confidentiality. Attorneys cannot use information relating to the representation of a former client to their disadvantage, unless the information has become generally known. N.M. R. Profl Conduct 16-109(C)(1). Likewise, an attorney cannot reveal information relating to the representation. N.M. R. Profl Conduct 16-109(C)(2). The second is a duty to refrain from representing someone whose interests are materially adverse to the interests of [a] former client. N.M. R. Profl Conduct 16-109(A).
That second duty applies, however, only to the matters in which an attorney represented a former client and to substantially related matters. N.M. R. Profl Conduct 16-109(A). A particular matters scope-and, hence, whether it is the same matter in which an attorney represented a former client-depends on the facts of a particular situation or transaction, but [t]he underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question. N.M. R. Profl Conduct 16-109 cmt. 2. A matter is substantially related to a matter in which an attorney represented a former client if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the clients position in the subsequent matter. N.M. R. Profl Conduct 16-109 cmt. 3 (emphasis added). Information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representations are substantially related. N.M. R. Profl Conduct 16-109 cmt. 3.
On April 5, 2018, the Court spoke with Mr. Blackburn ex parte regarding the details of the case in which Mr. Blackburn represented J. Garcia. Mr. Blackburns representations to the Court indicate that he could not ethically cross-examine J. Garcia, because Mr. Blackburn might use or reveal confidential information relating to his prior representation of J. Garcia in such a cross-examination. See N.M. R. Profl Conduct 16-109(C). Nothing before the Court indicates, however, that Mr. Blackburn has any information related to J. Garcias decades-old case that would advance A. Garcias position if J. Garcia does not testify. On April 6, 2018, the United States and the Defendants removed J. Garcia from their witness lists. See United States Unopposed Notice of Removal of Witness at 1, filed April 6, 2018. Consequently, there is no practical danger that Mr. Blackburn will use or reveal any nonpublic information related to that representation. See N.M. R. Profl Conduct 16-109(C). Correlatively, there is no significant risk that Mr. Blackburns representation of A. Garcia will be materially limited by his duty of confidentiality to J. Garcia. N.M. R. Profl Conduct 16-107(B). The Court accordingly concludes that Mr. Blackburns representation of A. Garcia can continue notwithstanding Mr. Blackburns continuing duty to maintain J. Garcias confidences.
Similarly, there is no substantial risk that information as would normally have been obtained in Mr. Blackburns representation of J. Garcia in a non-SNM-related murder prosecution would materially advance A. Garcias position in this case. See N.M. R. Profl Conduct 16-109 cmt. 3. Further, A. Garcias federal prosecution for a Violent Crime in Aid of Racketeering, 18 U.S.C. § 1959 (VICAR) based on his alleged participation in SNM does not involve the same transaction or legal dispute as J. Garcias non-SNM-related state murder prosecution. See N.M. R. Profl Conduct 16-109 cmt. 3. Accordingly, the Court concludes that A. Garcias VICAR prosecution is not substantially related Mr. Blackburns prior representation of J. Garcia. Likewise, Mr. Blackburn cannot be justly regarded as changing sides, so the two matters are not the same. See N.M. R. Profl Conduct 16-109 cmt. 3. Accordingly, the Court concludes that Mr. Blackburn can continue to represent A. Garcia notwithstanding Mr. Blackburns continuing duty of loyalty to J. Garcia.
To the extent that Mr. Blackburns prior representation of J. Garcia creates any issues under the Sixth Amendment to the Constitution of the United States of America-e.g., by causing Mr. Blackburn to pull his punches while cross-examining J. Garcia-A. Garcia can unilaterally waive those issues. Conflicts of interest potentially create Sixth Amendment issues, because an attorneys divided loyalties may render their assistance constitutionally ineffective. See Cuyler v. Sullivan, 446 U.S. 335, 345, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) ([A] lawyer forced to represent codefendants whose interests conflict cannot provide the adequate legal assistance required by the Sixth Amendment.). A defendant can, however, waive his right to the assistance of an attorney unhindered by a conflict of interests. Holloway v. Arkansas, 435 U.S. 475, 483 n.5, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Consequently, if A. Garcia knowingly and intelligently waives any conflicts that stem from Mr. Blackburns prior representation of J. Garcia, Mr. Blackburns continued representation of A. Garcia does not offend A. Garcias Sixth Amendment rights.
The Court grants the Motion insofar as it seeks a determination regarding whether Mr. Blackburn can ethically continue to represent A. Garcia. The Court denies the Motion-insofar as it seeks Mr. Blackburns disqualification-because it concludes that Mr. Blackburns representation of A. Garcia does not create a conflict of interest vis-à-vis Mr. Blackburns former representation of J. Garcia. Out of an abundance of caution, however, the Court will seek a conflict-of-interest waiver from A. Garcia to avoid any Sixth Amendment issues, because such a waiver resolves any potential Sixth Amendment issues down the road.
IT IS ORDERED that: (i) the request for a determination in the United States Sealed Motion Regarding Attorney Conflict, filed April 4, 2018 (Doc. 2071), is granted in part and denied in part.
In addition to the duties owed to a former client, the New Mexico Rules of Professional Conduct state that a lawyer cannot represent a client if there is a significant risk that the representation of one or more clients will be materially limited by the lawyers responsibilities to ... a former client. N.M. R. Profl Conduct 16-107(A)(2).
An attorney is permitted to use information relating to a former clients representation-as opposed to information relating to a current clients representation-if the information has become generally known. See N.M. R. Profl Conduct 16-109(C)(1).