• Prosecutors say the mayor's lawyer may have a conflict when it comes to the testimony of one potential witness. The matter gets a hearing today.
BY TRACY BRETON
Journal Staff Writer
PROVIDENCE
-- The U.S. Attorney's office wants the chief judge of the federal court here to revisit the issue of whether Boston lawyer Richard M. Egbert can continue to represent Mayor Vincent A. Cianci Jr. on corruption charges.
In papers filed with Chief U.S. District Judge Ernest C. Torres, prosecutors say that if Egbert is allowed to try the case, he might try to "manufacture a mistrial" based on his "various conflicts of interest" if he thought things were not going well at trial for the mayor.
"The government's continuing concern is that the myriad conflicts presented by defendant's counsel gives him the ability to manufacture a mistrial in this case if he deems it advantageous to his client's interest," Assistant U.S. Attorneys Richard W. Rose and Terrence P. Donnelly say in a memorandum of law made public by the court yesterday.
At a minimum, the prosecutors say in their memo, Torres should prohibit Egbert from cross-examining a potential rebuttal witness the government may present, former City Solicitor Ronald H. Glantz. Glantz, who served a prison sentence on corruption charges, is a former client of Egbert.
But Egbert is fighting the prosecutors' suggestions. He says there is no reason to prohibit him from participating in any part of Cianci's defense and says that removing him would violate Cianci's constitutional right to counsel of his choice.
The issue of whether Egbert can remain -- and in what capacity -- may be resolved as early as this morning. Torres has ordered Cianci to appear at 9 a.m. in his court -- Courtroom 3, Room 209 -- in the newly refurbished courthouse on Kennedy Plaza, to clarify issues that could affect his representation by Egbert.
Torres told Egbert earlier this month in court that he wants to make sure Cianci understands that, if Glantz testifies, "that would very likely result in your disqualification to question Glantz, and possibly your disqualification in the case."
At a hearing on Jan. 31, Torres disclosed that prosecutors want to introduce testimony from Glantz about "alleged bribes and actions of extortion in which [Cianci] was alleged to have participated between 1976 and 1983" -- long before the time period at issue in the corruption charges set to be tried in April.
The issue of Egbert's representation of the mayor was first raised by the government last year based on Egbert's representation of the City of Providence after the estate of slain police Sgt. Cornel Young Jr. filed a wrongful death claim against the city; as well as Egbert's former representation of two of Cianci's codefendants -- his chief of staff, Artin H. Coloian, and convicted felon Edward E. Voccola -- and Voccola's daughter, Patricia A. Forte, a potential government witness.
Torres allowed Egbert to remain on the case if he agreed to stop handling any matters for the city while representing Cianci, and after the two Voccolas and Coloian waived certain legal rights.
Now, the latest potential conflict surrounding Egbert's representation of Cianci involves the defense lawyer's former representation of Glantz, once a close confidant of the mayor who was convicted in the 1980s of extorting $77,350 in kickbacks from a North Providence garbage hauler who received a contract from the city. Glantz was also convicted of perjury and of conspiracy to obstruct justice; he served several years in federal prison.
Egbert represented Glantz in the perjury case, but in his memoranda of law, argues that he should be allowed to continue as Cianci's counsel and to cross-examine Glantz "in the unlikely event that Glantz is called to testify," which he says is doubtful.
The perjury case "has absolutely no relation whatsoever to the charges currently pending against Cianci" and it concluded 15 years ago, Egbert says. He says he has had no contact with Glantz since then.
Egbert says he realizes he must protect the attorney-client relationship he had with Glantz, but does not "currently recall any confidential information about Mr. Glantz or his case" and would not, in any event, use such information against him in cross-examination.
"There is no reason for this court to prevent counsel from cross-examining Glantz should he be called to testify," Egbert wrote. "The applicable rules of professional conduct do not expressly prohibit it; there are ample protections against any potential conflict of interest; Cianci's choice of counsel is guaranteed by the Sixth Amendment; and finally, given the particular circumstances at hand, there is no actual conflict."
Egbert cited case law from other jurisdictions, including Massachusetts, to support his argument. He said that Cianci is willing to waive any potential conflict posed by his possible cross-examination of Glantz.
In their first memorandum, filed with Torres Feb. 7, prosecutors Rose and Donnelly said they would be satisfied with a "partial disqualification" order -- something that would allow Egbert to continue to represent Cianci but not to cross-examine Glantz, "provided that defendant Cianci explicitly waives his right to have counsel represent him regarding any aspect of Mr. Glantz's testimony." If that were to happen, Cianci would have to get another lawyer to cross-examine Glantz.
"The government has found several cases where courts have limited the participation of counsel in response to a conflict of interest, rather than totally disqualify the attorney," the prosecutors say in their memo.
But apparently the government had a change of heart. In a second memorandum, filed with Torres Feb. 14, the government urges Torres to revisit the issue of whether Egbert should be totally disqualified.
"The government's concern is that at some juncture in these proceedings, counsel will exploit one or more of his conflicts to obtain a perceived litigation advantage, perhaps even a mistrial," the prosecutors say.
They note that earlier, when Egbert argued to have Glantz disqualified from testifying, he cited his former representation of Glantz "in regard to Providence corruption issues in particular" and said that if Glantz were allowed to testify, "there is a real likelihood that" he would be forced to withdraw as Cianci's lawyer.
"This court has been more than generous in its attempt to accommodate counsel's conflicts of interest in order to afford defendant Cianci his Sixth Amendment right of counsel of choice. That right, however, is not absolute," the prosecutors say. "Whatever scheduling issues may arise if counsel were disqualified now, they would pale in comparison to those quandries which the court and the parties will have to face should Mr. Egbert or his client attempt to exploit this issue during the trial."
