United States District Court, E.D. Louisiana
ORDER AND REASONS
SUSIE MORGAN, District Judge.
This is a criminal action charging Abide Home Care Services, Inc. ("Abide") and its associates with a scheme to defraud Medicare. The Government has moved to disqualify Ike Spears on the basis of an alleged attorney-client relationship formed with Lisa Crinel on March 25, 2014. Mr. Spears now represents Wilneisha Jakes-Ms. Crinel's daughter and co-defendant. The question presented is whether this successive representation presents a conflict of interest that requires disqualification. It does. The motion is GRANTED, and Mr. Spears is disqualified from representing Ms. Jakes.
At approximately 9:00 a.m. on March 25, 2014, federal agents arrived at the corporate office of Abide to execute a search warrant. Several employees were already at the office, including Ms. Jakes-the Chief Administrative Officer at Abide. Ms. Jakes subsequently informed her mother (and boss), Ms. Crinel, of the search. Ms. Crinel arrived approximately thirty minutes later and contacted her attorney, Clarence Roby. Due to a prior commitment, Mr. Roby was unable to go to Ms. Crinel's office right away, so he reached out to Mr. Spears. Mr. Spears was not in his office. Mr. Roby left a message requesting Mr. Spears to attend the search in his place. Upon receiving this message, Mr. Spears stopped what he was doing and left for Abide's offices.
Mr. Spears arrived at approximately 10:00 a.m. while the search was ongoing. After identifying himself as Ms. Crinel's attorney, Mr. Spears was escorted to a room in which Ms. Crinel, Ms. Jakes, and various federal agents were present. Approximately one hour later, David Belfield-another of Ms. Crinel's attorneys-joined the group. Mr. Roby arrived one hour after Mr. Belfield. Mr. Roby, Mr. Belfield, and Mr. Spears remained in the room with Ms. Crinel, Ms. Jakes, and federal agents for an indeterminate amount of time. At some point, Mr. Roby and Mr. Belfield left Abide's office. Mr. Spears stayed throughout the entirety of the search, which concluded at approximately 7:00 p.m.
Ms. Crinel convened an employee meeting the next day. Ms. Crinel explained that her three attorneys-including Mr. Spears-were scheduled to meet with federal agents in Baton Rouge to discuss the search. Mr. Belfield and Mr. Roby eventually met with agents. Mr. Spears was not present for this meeting.
At some point after the search, Mr. Spears received a check from Ms. Crinel (through Abide) for five thousand dollars. Mr. Spears attempted to cash the check. Because the Government had frozen Ms. Crinel's accounts, the check never cleared.
On or about June 11, 2014, Mr. Roby began working with Assistant United States Attorney Jordan Ginsberg to develop a procedure for reviewing information seized from Abide computers for privileged attorney-client communications. In an email sent by Mr. Roby to AUSA Ginsberg, Mr. Roby identified Mr. Spears as one of Ms. Crinel's attorneys.
On or about December 3, 2014, the United States Attorney's Office for the Eastern District of Louisiana received an email from Senator Mary Landrieu's office forwarding an email sent by Ms. Crinel (the "December Email"). In the December Email, Ms. Crinel purported to create a "timeline of the federal investigation" in which she identified Mr. Spears, Mr. Roby, and Mr. Belfield as her attorneys.
On March 12, 2015, a federal grand jury in the Eastern of District of Louisiana returned a twenty-six count indictment. Count 1 charges Abide and seventeen codefendants with an elaborate conspiracy to commit healthcare fraud. Count 2 alleges a conspiracy involving eleven defendants to pay and receive illegal healthcare kickbacks. Ms. Crinel and Ms. Jakes are named defendants in both counts. The remaining counts allege substantive acts of healthcare fraud related to six Medicare beneficiaries.
The Government contends that Mr. Spears represented Ms. Crinel during the search of Abide's offices and that therefore he should be disqualified from representing Ms. Jakes. In order to prevail, the Government must prove three things. First, the Government must establish there was an attorney-client relationship between Mr. Spears and Ms. Crinel on the date of the search. Second, the Government must establish this relationship creates a conflict of interest. Third, the Government must establish the conflict is not waiveable.
I. Attorney-Client Relationship
The existence of an attorney-client relationship vel non is governed by the law of the forum state. Under Louisiana law, this inquiry "turns largely on the client's subjective belief...." Ms. Crinel clearly believed Mr. Spears was her attorney during the search on March 25, 2014. In Mr. Spears's own words, he appeared at the search as the "surrogate" or "substitute" attorney for Mr. Roby. Mr. Spears remained by Ms. Crinel's side and did not leave when Mr. Roby arrived. The day after the search, Ms. Crinel announced to her staff that ...