USA v. TAPIA et al

IN THE DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
UNITED STATES OF AMERICA, 	)
)
Plaintiff, 	)
) 	Crim. No. 2013-22
)
v. 	)
)
RAYMOND BROWN, 	)
)
Defendant. 	)
)
____________________________________)
REPORT AND RECOMMENDATION
Before the Court is the motion of Arturo Watlington, Jr., to withdraw from his retained
representation of defendant herein, pursuant to Rule 1.7 of the American Bar Association’s Model
Rules of Professional Conduct (“Rule 1.7”). 	[DE 545]. 	On February 10, 2014, the District Court
heard argument on the motion and asked Attorney Watlington to supplement his motion with
certain information, which Attorney Watlington purported to submit later that day.1 [DE 571].
Thereafter, the District Court referred the motion to withdraw to the undersigned for a Report and
Recommendation. 	[DE 572].
Attorney Watlington seeks to withdraw primarily based upon an alleged conflict of interest
between the current representation of defendant Raymond Brown, and his representation of
defendant’s father, Omar Brown, Jr.2 While the motion itself contains no reasoning as to the
1 	Following the hearing, the Court issued a written order requiring Attorney Watlington to submit “a copy of
the contract discussed at the hearing” and “the specific language of the utterances or statements made by Raymond
Brown on January 6, 2014.” 	[DE 569]. 	Attorney Watlington’s submission contained only selected pages of a
“Contract for Sale” dated May 8, 2000, and a Certificate of Attachment from the Office of the Lieutenant Governor
regarding a piece of property in Dorothea on St. Thomas. 	He did not submit anything regarding defendant’s January
6, 2014 statements. 	[DE 571]
2 	Attorney Watlington also apparently argues that there is “serious animosity” that has arisen between him and
defendant’s mother that somehow may affect his ability to represent defendant here. 	[DE 545, ¶¶ 6-8]. 	Counsel
neither articulates any authority to support such a contention, nor can the Court discern any reason to permit
withdrawal on that basis.
Case: 3:13-cr-00022-CVG-RM Document #: 573 Filed: 02/11/14 Page 1 of 4

USA v. Raymond Brown
Crim. No. 2013-22
Page 2
application of Rule 1.7, Attorney Watlington proffered an unsigned “Affirmation” that describes
some of the factual underpinnings of the alleged conflict, and offers that “Rule 1.7 states that a
counsel not involve himself in representing adverse parties at the same time.” 	[DE 545, p.2, ¶ 12,
(“Watlington Aff.”)].
In the Affirmation, Attorney Watlington explains that, during a discussion of a pending
real estate issue, defendant “commenced to express his opinion or position with the proposed
transfer of real property between his parents and espousing a position and claim which counsel
believes created on [sic] adversarial position between the Defendant and Defendant’s father whom
counsel is committed to and most comfortable representing.” 	Id. at ¶ 9. 	He states defendant’s
comments “seemingly creates in counsel’s mind an opinion that he is representing two adverse
parties; the Defendant in this criminal matter and Defendant’s father in a pending real estate
transaction in which the Defendant feels he has a vested interest.” 	Id. at 10. 	He is concerned
that in advising defendant in the criminal matter, “it may be assumed that such representation and
advice may be scrutinized, characterized as given to benefit the interest if [sic] the Defendant’s
father and not the Defendant,” and that he may be “accused of partiality between my family
members.” 3 Id. at ¶¶ 11, 13.
Rule 1.7 provides as follows:
RULE 1.7: CONFLICT OF I NTEREST :
CURRENT C LIENTS
(a) 	Except as provided in paragraph (b), a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest. 	A concurrent conflict
of interest exists if:
3 	“Counsel is also related to the Defendant by blood since his paternal grandmother was my first cousin.”
Watlington Aff., ¶ 2. 	Attorney Watlington also detailed his relationship to both Omar Brown, Jr. and defendant at the
February 10, 2014 hearing.
Case: 3:13-cr-00022-CVG-RM Document #: 573 Filed: 02/11/14 Page 2 of 4

USA v. Raymond Brown
Crim. No. 2013-22
Page 3
(1) 	the representation of one client will be directly adverse to another client; or
(2) 	there is a significant risk that the representation of one or more clients will
be materially limited by the lawyer’s responsibilities to another client, a
former client or a third person or by a personal interest of the lawyer.
(b) 	Notwithstanding the existence of a concurrent conflict of interest under
paragraph (a), a lawyer may represent a client if:
(1) 	the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;
(2) 	the representation is not prohibited by law;
(3) 	the representation does not involve the assertion of a claim by one client
against another client represented by the lawyer in the same litigation or
other proceeding before a tribunal; and
(4) 	each affected client gives informed consent, confirmed in writing.
ABA Rule 1.7. 	The Comments to Rule 1.7 provide that “[e]ven where there is no direct
adverseness, a conflict of interest exists if there is a significant risk that a lawyer’s ability to
consider, recommend or carry out an appropriate course of action for the client will be materially
limited as a result of the lawyer’s other responsibilities or interests, [however, t]he mere possibility
of subsequent harm does not itself require disclosure and consent.” ABA Rule 1.7 cmt. 8.
In the present case, Attorney Watlington apparently relies upon subsection (a)(2) of Rule
1.7, as he claims a concurrent conflict of interest between his clients Omar Brown, Jr., and
Raymond Brown. 	His representation of Raymond Brown in this criminal matter is obviously not
directly adverse to that of Omar Brown, Jr., as the senior Brown is not a party to this criminal
litigation. 	Rather, counsel suggests that in a real estate transaction that he is apparently handling
on behalf of Omar Brown, Jr., defendant has suddenly expressed he has some interest in the
property at issue that is adverse to that of his father. 	It is this “adverseness” that counsel argues
now makes him “very certain that he cannot continue to adequately and comfortably represent and
advise the defendant.” 	Watlington Aff., ¶ 11.
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USA v. Raymond Brown
Crim. No. 2013-22
Page 4
In support of his position, however, Attorney Watlington, despite having been ordered to
produce a copy of the contract that he claims gives rise to the adverse interests of his clients, has
only produced a part of a 14-year-old “contract for sale” that nowhere demonstrates any interest on
the part of defendant. 	Nor has counsel provided the Court with defendant’s statements that
counsel claims triggered his belief that there is some adverseness of position between father and
son as to this property. 	This Court simply cannot conclude, based on this record, that there is “a
significant risk that the representation of one or more clients will be materially limited by the
lawyer’s responsibilities to another client” sufficient to require withdrawal at this point in the
representation.
It should also be noted that the record is devoid of any indication that defendant considers
continued representation by Attorney Watlington unpalatable. 	Counsel’s recitation that when
asked his position on withdrawal after the February 10, 2014 hearing, defendant responded
“whatever just wants this over with” [DE 571] is hardly a condemnation of counsel warranting
withdrawal. 	Of course, defendant is free to retain substitute counsel should he want to do so, but
on this record, the Court sees no conflict mandating that current counsel withdraw.
Accordingly, the premises considered, IT IS HEREBY RECOMMENDED that the motion
be DENIED.
DATED: 	February 11, 2014 	S\___________________________
RUTH MILLER
United States Magistrate Judge
Case: 3:13-cr-00022-CVG-RM Document #: 573 Filed: 02/11/14 Page 4 of 4