Kenneth Coffelt v. Honorable Terry L. Shell

577 F.2d 30

• Court: Court of Appeals for the Eighth Circuit
• Decided: June 14, 1978
• Docket: 77-1957
• Status: Published

Opinions

PER CURIAM.

This case is an appeal by an attorney, Kenneth Coffelt, from a district court¹ order relieving Coffelt of his representation of a certain criminal defendant, Arthur Lewis Gordon, and ordering a modification of Coffelt’s fee arrangement with Gordon. The order came during the Government’s presentation of its case against Gordon and was accompanied by a judicial declaration of mistrial. The case was being tried to the court without a jury. We have been advised by the appellee’s brief that the court appointed a new attorney for Gordon and he was subsequently convicted by a jury on the charges against him of distributing heroin in violation of 21 U.S.C. § 841(a).

The dispute arose when the Government called as a witness against Gordon an informant named Willie Jackson. At this time Coffelt was representing Jackson in a pending state criminal prosecution on drug-related charges.² Coffelt’s wife had posted a $20,000 bond for Jackson, and the Coffelts had become concerned that the bond might be forfeited because they had had difficulty locating Jackson. With this concern in mind Coffelt approached the bench and asked for a chambers conference. In chambers Coffelt apprised the court of his prior relationship with Jackson and asked that Jackson be taken into custody so that Mrs. Coffelt could be relieved on her bond.

The district court found that the actions of Coffelt in defending Gordon constituted a violation of the ABA Code of Professional Responsibility. Specifically, the district court held that Coffelt was acting contrary to the provisions of Disciplinary Rule 5— 105(A), which provides:

A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C).³

Cf. Holloway v. Arkansas,-U.S.-, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). The district court also found that Coffelt’s conduct at least created the appearance of a conflict of interest and thus Coffelt’s continued representation of Gordon was inappropriate. See ABA Code of Professional Responsibility Canon 9 (“A lawyer should avoid even the appearance of impropriety.”) See also Fred Weber, Inc. v. Shell Oil Co., 566 F.2d 602, 609-10 (8th Cir. 1977); Richardson v. Hamilton International Corp., 469 F.2d 1382, 1385-86 (3d Cir. 1972), cert. denied, 411 U.S. 986, 93 S.Ct. 2271, 36 L.Ed.2d 964 (1973); Estep v. Johnson, 383 F.Supp. 1323, 1325 (D.Conn.1974); Handelman v. Weiss, 368 F.Supp. 258, 263-64 (S.D.N.Y. 1973). Coffelt did not anticipate any ethical problem and stated to the court that he perceived no appearance of impropriety.

An order was entered relieving Coffelt as counsel of record and declaring a mistrial. The court also determined that Coffelt’s fee arrangement with Gordon, which called for a total payment of $1,000, was excessive in view of the early termination of the proceedings and “Coffelt’s obvious lack of preparation for trial.” ⁴ The court ordered the fee reduced to $100 on grounds of fairness and equity.

“The district court bears the responsibility for the supervision of the members of its bar.” Fred Weber, Inc. v. Shell Oil Co., supra, 566 F.2d at 605, quoting from Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir. 1975). In addition to its authority to disqualify attorneys, the court has the inherent power to inquire into the amount charged by an attorney in order to protect a client from excessive fees. See In re Michaelson, 511 F.2d 882, 888 (9th Cir.), cert. denied, 421 U.S. 978, 95 S.Ct. 1979, 44 L.Ed.2d 469 (1975); In re Silver, 508 F.2d 647 (9th Cir. 1974).

In matters concerning the supervision of members of its bar, “the finding of the district court will be upset only upon a showing that abuse of discretion has taken place.” Fred Weber, Inc. v. Shell Oil Co., supra, 566 F.2d at 605, quoting from Hull v. Celanese Corp., supra, 513 F.2d at 571. “Moreover, in the disqualification situation, any doubt is to be resolved in favor of disqualification.” Hull v. Celanese Corp., supra, 513 F.2d at 571.

We conclude the district court did not abuse its discretion in disqualifying Coffelt from further representation of Gordon and in modifying Coffelt’s fee arrangement with Gordon.

Affirmed.

1 . The Honorable Terry L. Shell, United States District Judge for the Eastern District of Arkansas.

2 . The state charges against Jackson were eventually dismissed in return for Jackson’s work as an informant.

3 . DR 5-105(C) permits a client to waive a conflict of interests if the waiver is made knowingly and intelligently after a full disclosure. No request was made by Coffelt that he be given an opportunity to explain fully the conflicting interests to Gordon. Gordon did state that he wanted Coffelt to continue to represent him. However, the appellee’s brief claims that Gordon was motivated solely by his understanding that under any circumstances he would be obligated to pay Coffelt’s fee. In any event, Gordon did not make a knowing and voluntary waiver as required by DR 5-105(C).

4 . A further ground for declaring a mistrial and relieving Coffelt as counsel, which is asserted in the appellee’s brief, is that Coffelt was not adequately prepared to provide competent representation for Gordon.