UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) UNITED STATES OF AMERICA ) ) v. ) Criminal No. 21-0598 (PLF) ) TERENCE SUTTON, ) ) Defendant. ) ____________________________________)

MEMORANDUM OPINION AND ORDER

On October 5, 2021, the United States moved to disqualify counsel for defendant

Terence Sutton, arguing that a conflict of interest requiring disqualification arose because, at the

time the motion was filed, defense counsel also represented ,

. Motion to Disqualify Counsel [Dkt. No. 34] at 1. On November 18, 2021, the parties

appeared before the Court for a sealed hearing on the motion, at which time defense counsel

stated that they would withdraw from representing but would continue to represent Mr.

Sutton. On November 19, 2021, the Court appointed John Marston, Esq., as independent

conflicts counsel with respect to

The Court reserved decision on whether to appoint independent conflicts counsel

for Mr. Sutton because defense counsel represented that Mr. Sutton had retained attorney

Carmen Hernandez as conflicts counsel. At the November 18, 2021 hearing, the Court directed

counsel for the parties and Ms. Hernandez to consider whether it is appropriate for Ms.

Hernandez to play this role, given that she is also acting as third-party custodian for Mr. Sutton

and that her daughter is in a romantic relationship with Mr. Sutton. On December 3, 2021, the Court held a sealed status conference concerning the

motion to disqualify counsel, at which both Mr. Marston and Ms. Hernandez were present. Ms.

Hernandez stated that she was neither an expert on ethics nor a fully independent person, given

her other role in this case and her personal ties to Mr. Sutton. She nonetheless expressed

willingness to analyze the existence of conflicts or potential conflicts that might affect Mr.

Sutton, based on her extensive experience as a criminal defense attorney. Counsel for the United

States said that the United States defers to the Court’s determination of whether Ms. Hernandez

can advise Mr. Sutton concerning conflicts, or whether the Court should appoint a separate and

independent conflicts counsel.

In light of the representations made at the December 3, 2021 status conference

and the relevant case law, the Court concludes that it is appropriate to appoint independent

conflicts counsel to advise both Mr. Sutton and the Court concerning the existence and nature of

any conflict that Mr. Sutton’s counsel might have as a result of their previous representation of

and to advise Mr. Sutton concerning his interests and rights. See, e.g., United States v.

Lorenzana-Cordon,

(D.D.C. 2015); United States v. Carlyle,

(D.D.C. 1997); United States v. Brown, Crim. No. 07-75,

, at *3

(D.D.C. June 7, 2007). While the Court appreciates Ms. Hernandez’s willingness to advise Mr.

Sutton concerning conflicts, the Court also believes that both Mr. Sutton and the Court have an

interest in receiving the views of a fully independent attorney who has expertise in the area of

conflicts and ethics.

The Court therefore will appoint Justin Shur, Esq., of the firm MoloLamken, LLP,

as independent conflicts counsel with respect to Mr. Sutton. Mr. Shur should specifically

evaluate the existence or risk of any “adverse positions,” “adversely affected” representation,

2 “adversely affected” professional judgment, or “materially adverse” interests as between Mr.

Sutton and as those terms are used in Rule 1.7 and Rule 1.9 of the District of Columbia

Rules of Professional Conduct. See D.C. RULES OF PROF’L CONDUCT R. 1.7(a), R. 1.7(b)(2)-(4);

R. 1.9. Mr. Shur also should advise Mr. Sutton of the risks, if any, that Mr. Sutton may face

regarding the potential that defense counsel’s “loyalties” may be “divided” based on their prior

representation of . Freeman v. United States,

(D.C. 2009) (quoting

Pinkney v. United States,

(D.C. 2004)). If Mr. Shur believes that any conflict

is waivable, he should advise Mr. Sutton concerning “the consequences of waiver.” United

States v. Lopesierra-Gutierrez,

(D.C. Cir. 2013); see also D.C. RULES OF

PROF’L CONDUCT R. 1.7(c).

To this end, the Court will direct counsel for the United States and defense

counsel to provide Mr. Shur with copies of all papers in this case that are relevant to the issue of

conflicts, including the report prepared by Mr. Marston concerning conflicts with respect to

Because the motion to disqualify substantially ,

the Court finds that Mr. Shur has a particularized need to review certain materials protected from

disclosure by Rule 6(e) of the Federal Rules of Criminal Procedure. See FED. R. CRIM.

P. 6(e)(3)(E) (“The Court may authorize disclosure . . . of a grand-jury matter: (i) preliminarily

to or in connection with a judicial proceeding . . . .”); United States v. Sells Eng’g,

(disclosure of grand jury materials “preliminarily to or in connection with a

judicial proceeding” “require[s] a strong showing of particularized need”). The Court will

authorize the United States to disclose such materials to Mr. Shur, but only to the extent

necessary for Mr. Shur to understand, analyze, and advise Mr. Sutton and the Court on the issue

of conflicts as set forth in this Order.

3 The Court will direct Mr. Shur to review the relevant papers in this case, meet

with counsel for the United States, meet with defense counsel, and meet with Mr. Sutton. Mr.

Shur is expected to attend and participate in any future hearing concerning the issue of conflicts,

including the sealed hearing currently scheduled for December 15, 2021 at 2:00 p.m., and may

file a memorandum with the Court in advance of any such hearing.

In light of the foregoing, it is hereby

ORDERED that the Court appoints Justin Shur, Esq., of the firm MoloLamken,

LLP, as independent counsel for the limited purpose of advising Mr. Sutton and the Court

concerning the existence and nature of any conflict that Mr. Sutton’s counsel might have as a

result of their previous representation of , and to advise Mr. Sutton concerning his interests

and rights; it is

FURTHER ORDERED that counsel for the United States and defense counsel

shall provide Mr. Shur with copies of all papers relevant to the issue of conflicts, including the

report prepared by Mr. Marston concerning conflicts with respect to ; it is

FURTHER ORDERED that the United States is authorized to provide items

protected by Rule 6(e) of the Federal Rules of Criminal Procedure to Mr. Shur, but only to the

extent necessary for Mr. Shur to understand, analyze, and advise Mr. Sutton and the Court

regarding the issue of conflicts; and it is

FURTHER ORDERED that Mr. Shur shall review the relevant papers in this case,

meet with counsel for the United States, meet with defense counsel, meet with Mr. Sutton and

4 attend and participate in any future hearing with respect to the issue of conflicts, including the

sealed hearing currently scheduled for December 15, 2021 at 2:00 p.m.

SO ORDERED.

/s/ ________________________ PAUL L. FRIEDMAN United States District Judge

DATE: December 7, 2021

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