Free Motion for Reconsideration - District Court of Colorado - Colorado

Case 1:04-cr-00423-MSK

Document 53

Filed 10/16/2006

Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CASE NO. 04-cr-00423-MSK UNITED STATES OF AMERICA, Plaintiff, v. 1. CHRISTINA D. ORTIZ, Defendant. ______________________________________________________________________________ MOTION TO RECONSIDER DEFENDANT'S MOTION TO WITHDRAW AS COUNSEL OF RECORD ______________________________________________________________________________ Undersigned counsel respectfully moves this Court to re-consider counsel's Motion to Withdraw as Counsel of Record for Christina Ortiz, and in support of this motion, states as follows: 1. On April 10, 2006, the Office of the Federal Public Defender was appointed to represent Mr. Ortiz on a violation of supervised release. Undersigned counsel entered his appearance on April 13, 2006. 2. On May 25, 2006, this Court held a violation hearing in which Ms. Ortiz admitted several violations of supervised release. This Court continued sentencing in order to monitor Ms. Ortiz's progress. 3. On August 31, 2006, the United States filed a motion asking this Court to set a sentencing hearing on the matter. That same date, this Court granted the motion and set a sentencing hearing for October 16, 2006, at 1:30 p.m. 4. On October 12, 2006, the United States filed a supplemental motion for this sentencing

Case 1:04-cr-00423-MSK

Document 53

Filed 10/16/2006

Page 2 of 6

hearing. As set forth in the initial Motion to Withdraw as Counsel of Record, this supplemental motion creates a conflict of interest for undersigned counsel and the Office of the Federal Public Defender that prohibits further representation of Ms. Ortiz by the Office. 5. On October 16, 2006, this Court heard argument on the Motion to Withdraw as Counsel of Record. During this argument, Assistant United States Attorney James Alison stated that he would withdraw the allegations creating the conflict. This Court found that, following this allegation withdrawal, the conflict did not exist and denied the Motion to Withdraw as Counsel of Record. 6. Undersigned counsel now moves this Court to reconsider its Order denying the Motion to Withdraw as Counsel of Record. In support of this motion, counsel states that continued representation would violate Counsel's ethical duties of candor to the tribunal (Colorado Rule of Professional Conduct 3.3), Diligence (Colorado Rule of Professional Conduct 1.3), and Conflict of Interest: General Rule (Colorado Rule of Professional Conduct 1.7). 7. First, continued representation would implicate undersigned counsel's duty of candor to the tribunal. The government has provided information that, if true, would undercut the argument that undersigned counsel intended to make at the time of sentencing. While undersigned counsel respects this Court's ability to disregard dismissed allegations, undersigned counsel's duty of candor to the Court prohibits counsel from making an argument to the Court that he does not believe is supported by the facts. See Colorado Rule of Professional Conduct 3.3(a)(1) ("A lawyer shall not knowingly make a false statement of material fact or law to a tribunal.") 8. Second, continued representation would violate undersigned counsel's duty of diligence. Given that the information provided by the government contradicts an argument that

Case 1:04-cr-00423-MSK

Document 53

Filed 10/16/2006

Page 3 of 6

counsel believes would benefit Ms. Ortiz, diligence requires counsel to investigate the government's information to determine if it is true. See Colorado Rule of Professional Conduct 1.3, Comment ("A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy on the client's behalf."). If counsel would establish that the government's assertion is unfounded, he would be free to argue what he intended to prior to the disclosure of the government's new information. 9. Finally, continued representation would violate undersigned counsel's duty of loyalty and avoiding conflicts of interest. In order to investigate whether or not the government's new information is accurate, counsel would have to investigate whether a (former) client of the Office of the Federal Public Defender, the source of the information, was telling the truth. Such a situation violates counsel's duty to avoid representation of a client that is directly adverse to another client, see Colorado Rule of Professional Conduct 1.7(a), as well as counsel's duty of loyalty to the former client, see Colorado Rule of Professional Conduct 1.7, Comment ("Loyalty is an essential element in the lawyer's relationship to a client."). 10. Counsel does not believe that he can continue his relationship with Ms. Ortiz without potentially adversely affecting the interests of either Ms. Ortiz or the former client. See Colorado Rule of Professional Conduct 1.7(a)(1); see also Colorado Rule of Professional Conduct 1.10(a) ("While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7, 1.8(c), 1.9, or 2.2."). 11. Undersigned counsel has consulted with Warren R. Williamson, a member of the United States District Court's Committee on Conduct, and the Office's in-house ethics advisor. Mr. Williamson agrees that there is a potential conflict in continuing to represent Ms. Ortiz.

Case 1:04-cr-00423-MSK

Document 53

Filed 10/16/2006

Page 4 of 6

12. Undersigned counsel has also spoken with Assistant United States Attorney James Alison and Mr. Alison does not object to this motion.

Case 1:04-cr-00423-MSK

Document 53

Filed 10/16/2006

Page 5 of 6

WHEREFORE, undersigned counsel respectfully moves this Court to reconsider its denial of the Motion to Withdraw as Counsel fo Record, and to issue an Order removing counsel and the Office of the Federal Public Defender from this case. Respectfully submitted, RAYMOND P. MOORE Federal Public Defender

s/ Scott T. Varholak SCOTT T. VARHOLAK Office of the Federal Public Defender 633 - 17th Street, Suite 1000 Denver, Colorado 80202 Telephone: (303) 294-7002 FAX: (303) 294-1192 E-mail: [email protected] Attorney for Defendant

Case 1:04-cr-00423-MSK

Document 53

Filed 10/16/2006

Page 6 of 6

CERTIFICATE OF SERVICE I hereby certify that on October 16, 2006, I electronically filed the foregoing MOTION TO RECONSIDER DEFENDANT'S MOTION TO WITHDRAW AS COUNSEL OF RECORD with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

James Allison, Assistant United States Attorney [email protected]

s/ Scott T. Varholak Scott T. Varholak Assistant Federal Public Defender Attorney for Defendant 633 - 17th Street, Suite 1000 Denver, Colorado 80202 (303) 294-7002 (303) 294-1192 [email protected]