United States District Court, E.D. Tennessee, Knoxville
MEMORANDUM AND ORDER
C. Poplin United States Magistrate Judge.
pretrial motions in this case have been referred to the
undersigned pursuant to 28 U.S.C. § 636(b) for
disposition or report and recommendation regarding
disposition by the District Court as may be appropriate. This
case is before the Court on defense counsel's Motion to
Review Appointment of Counsel [Doc. 62], filed on May 24,
2018. The parties appeared for a hearing on the motion on
June 1, 2018. Assistant United States Attorney Cynthia F.
Davidson appeared on behalf of the Government. Attorney
Robert R. Kurtz represented the Defendant, who was also
April 4, 2018, Defendant Cook entered a guilty plea before
United States District Judge R. Leon Jordan. Defendant
Cook's sentencing hearing is scheduled for July 30, 2018.
On May 21, 2018, Defendant Cook filed a pro se
request to withdraw his guilty plea, contending, among other
things, that his court-appointed counsel failed to
investigate the legality of the traffic stop in his case,
that his attorney “pushed” him into a guilty
plea, and that he did not understand the terms of his plea
agreement, due to his poor hearing. Mr. Kurtz, who is the
Defendant's third appointed attorney, then moved the
Court to hold a hearing on the attorney-client relationship,
stating that a conflict apparently has developed between
himself and Defendant Cook. Mr. Kurtz asked that the
Defendant be returned to the district in time for him to meet
with the Defendant prior to the hearing in order to determine
how the Defendant wanted to proceed and whether the
attorney-client relationship is irreparably broken.
June 1 hearing, Mr. Kurtz informed the Court that he had met
with Defendant Cook, who is adamant that he wants to go
forward with his request to withdraw his guilty plea. Mr.
Kurtz stated that he cannot continue to represent Defendant
Cook, because he will now likely be a witness in a future
hearing on the Defendant's motion to withdraw his guilty
plea. AUSA Davidson said that while she first thought that
the Government would oppose another substitution of counsel
for Defendant Cook, she now agrees that Mr. Kurtz is likely a
witness in any hearing to withdraw the Defendant's guilty
plea. Moreover, AUSA Davidson stated that Mr. Kurtz's
testimony may be a pivotal part of her opposition to the
Defendant's request to withdraw his guilty plea.
3.7(a) of the Tennessee Rules of Professional Conduct
prohibits an attorney from being an advocate in a case in
which the attorney “is likely to be a necessary
witness[.]” Tenn. S.Ct. R.8. This Rule, however,
contains an exception for a lawyer who would provide
“testimony [that] relates to the nature and value of
legal services rendered in the case[.]” Tenn R. Prof.
Cond. 3.7(a)(2). At first blush, the instant situation
appears to fall within this exception to Rule 3.7(a), because
Mr. Kurtz may be called upon to testify about the legal
services he rendered, i.e., the legal advice he gave the
Defendant with regard to entering a guilty plea and about the
terms of the plea agreement. However, comment  to Rule
3.7(a)(2) is illuminating:
Paragraph (a)(2) recognizes that where the testimony concerns
the extent and value of legal services rendered in the action
in which the testimony is offered, permitting the lawyer to
testify avoids the need for a second trial with new counsel
to resolve that issue. Moreover, in such a situation the
judge has firsthand knowledge of the matter in issue; hence,
there is less dependence on the adversary process to test the
credibility of the testimony.
present case, a motion to withdraw the guilty plea raises the
possibility of conducting a trial in this case, without
regard to Mr. Kurtz's substitution. Moreover, the private
conversations of the Defendant and defense counsel are not
something about which the District Judge would have any
firsthand knowledge. Accordingly, the Court finds the
possibility that Mr. Kurtz may need to testify at a hearing
on a future motion to withdraw the guilty plea, which the
Defendant has attempted to file pro se and which the
Government intends to oppose, creates a conflict for Mr.
Kurtz between his role as the Defendant's advocate and
his role as a potential witness. Because such conflict could
deprive the Defendant of the effective assistance of counsel
at a hearing on a motion to withdraw the guilty plea, the
Court believes it is prudent to allow Mr. Kurtz to withdraw
and to substitute new counsel for the Defendant.
the undersigned substituted Mr. Kurtz as the Defendant's
attorney of record, it cautioned the Defendant that it would
not substitute counsel again, unless some exceptional
circumstance existed. In light of the potential conflict
caused by the Defendant's desire to withdraw his guilty
plea, the undersigned finds that good cause and exceptional
circumstances exist to permit the substitution of counsel in
this case. See Wilson v. Mintzes, 761 F.2d 275, 280
(6th Cir. 1985) (holding that a defendant seeking to
substitute counsel must show good cause). Mr. Kurtz is
RELIEVED as counsel of record for Defendant
Jamie Cook. The Court recognizes the need for the Defendant
to be represented continuously by conflict-free counsel.
Attorney Russell T. Greene appeared at the June 1 hearing and
agreed to accept representation of the Defendant. The Court
therefore and hereby substitutes and appoints Mr. Greene as
counsel of record for the Defendant pursuant to the Criminal
Justice Act (“CJA”), 18 U.S.C. § 3006A. Mr.
Kurtz informed the Court that he had the discovery and
information from the Defendant's file to provide to Mr.
Greene at the conclusion of the hearing.
it is ORDERED:
(1) Attorney Robert R. Kurtz's Motion to Review
Appointment of Counsel [Doc. 62] is
GRANTED. The Court held a hearing to review
counsel on June 1, 2018, and found that Mr. Kurtz has a
conflict of interest in representing Defendant Cook;
(2) Mr. Kurtz is RELIEVED as counsel of
record for Defendant Cook;
(3) Attorney Russell T. Greene is
SUBSTITUTED and APPOINTED
as counsel of record for Defendant Cook pursuant to the CJA;
(4) Mr. Greene is DIRECTED to review the
Defendant's pro se filing, to confer with
Defendant Cook, and to file a motion to withdraw guilty plea,
if appropriate, on or before June 29, 2018;
(5) The Government shall respond to a motion to withdraw
guilty plea filed by defense counsel on or ...