On March 1, 2018, attorney Wesley Page of Flaherty, Sensabaugh Bonasso, PLLC (“Flaherty”) agreed to defend William Earley, D.O. on indictments of violations of the Controlled Substances Act as employees and/or operators of the HOPE Clinic in West Virginia. Dr. Early and 12 other physicians were indicted for seeing patients on a cash-only basis and prescribing oxycodone and other prescription pain medications while refusing to accept insurance.
On May 31, 2018, attorney Salem Smith of Flaherty, Sensabaugh Bonasso, PLLC was retained to represent Dr. Chad Turner in a potential medical malpractice suit contemplated to be filed against him by the estate of a former Hope Clinic patient. As a former Hope Clinic physician, Dr. Turner was scheduled to testify against Dr. Early in the criminal proceeding. According to the U.S. Attorney, Dr. Turner’s testimony was expected to directly inculpate Dr. Early.
When the U.S. Attorney brought this conflict to both Messrs. Page’s and Smith’s attention, they both said they performed the requisite conflicts checks and did not believe that a conflict existed. They indicated that Dr. Turner signed a conflict waiver and Mr. Early waived the conflict orally.
Believing there was a conflict that could affect the integrity of the prosecution, the U.S. Attorney filed a Notice with the U.S. District Court for the Southern District of West Virginia, Beckley Division. At hearings on the issue, the U.S. Attorney said the Flaherty firm’s dual representation created an impermissible conflict under Rule 1.7 of the West Virginia Rules of Professional Conduct. Comment  prohibits an attorney from cross-examining a current client who appears as a witness in a lawsuit where the testimony is damaging to another current client. Counsel for Flaherty countered that Flaherty’s representation of Dr. Turner ended by June 28, with no lawsuit being filed against him. The criminal trial against Dr. Early was scheduled for August.
Because Dr. Turner is a former client, Flaherty’s counsel analyzed the conflict under Rule 1.9, which permits the cross-examination of a former client. The U.S. Attorney countered that the conflict is analyzed at the time the conflict arises, not at the time a motion to disqualify is filed. The U.S. Attorney indicated that Flaherty has the burden to show that the physicians waived the conflict with informed consent so as to defeat a motion to disqualify. Flaherty countered that, as the filer of the motion, the U.S. Attorney has the burden to prove disqualification should occur. Moreover, civil cases on disqualification cannot stand in a criminal case where a defendant has a 6th Amendment right to counsel of his choice.
The Court ruled that when the Flaherty firm began representing Dr. Turner on May 31, 2018, the firm had a conflict with its current client. Flaherty knew as early as March 2018 that Dr. Turner was to be a witness on behalf of the United States and would give adverse testimony against Dr. Early. The Court ruled that Rule 1.9 was inapplicable. Rule 1.7 required not only that Dr. Turner give informed consent in writing, but that Dr. Early, who was a Flaherty client first, also give informed consent in writing. There was no evidence that this had occurred.
There was a significant risk, the Court ruled, that Dr. Early’s representation would be materially limited by the lawyer’s responsibility to another current client. Because Mr. Page would have to cross-examine Dr. Turner, which would require Mr. Page to attempt to impeach Dr. Turner’s credibility at trial to protect Dr. Early’s position, the conflict was not waivable.
The Court ruled that the presumption of prejudice to the client had not been overcome. It noted the Court had the duty to ensure that criminal trials are conducted within the ethical standards of the profession. And the United States had the duty to ensure the integrity of the prosecution. Since neither of those could occur if Flaherty remained as counsel, it disqualified the firm from further representing Dr. Early.