United States District Court, D. Nevada
For Arquarius Robertson, Defendant: Rachel M. Korenblat, LEAD ATTORNEY, Federal Public Defender, Las Vegas, NV.
For Cortaz Robertson, Defendant: Benjamin C Durham, LEAD ATTORNEY, Cofer, Geller & Durham, Las Vegas, NV.
For William Will Morrow, Defendant: Ben Nadig, LEAD ATTORNEY, Las Vegas, NV.
For Benjamin Nadig, Interested Party: Joshua Tomsheck, LEAD ATTORNEY, Hofland & Tomsheck, Las Vegas, NV.
For USA, Plaintiff: Cristina D Silva, LEAD ATTORNEY, Lisa Cartier-Giroux, U.S. Attorneys Office, Las Vegas, NV; Nicholas D Dickinson, LEAD ATTORNEY, U.S. Attorneys Office, Las Vegas, NV.
ORDER RE: OBJECTIONS
TO REPORT AND RECOMMENDATION TO DISQUALIFY ATTORNEY BENJAMIN NADIG, ESQ. FROM REPRESENTING
DEFENDANT WILLIAM MORROW [DOC. 111]
Jennifer A. Dorsey, United States District Judge.
Defendants Arquarius Robertson, Cortaz Robertson, and William Morrow are charged with the armed robbery of the Palace Station Casino in Las Vegas, Nevada. Doc. 1. The government has moved to disqualify attorney Benjamin Nadig from representing Morrow, arguing that its investigation of Nadig in connection with an unrelated criminal matter creates an unavoidable conflict of interest that violates Nevada Rule of Professional Conduct 1.7(a) and the Sixth Amendment. Doc. 78. Magistrate Judge Cam Ferenbach issued proposed findings and recommended that the government's motion be denied. Doc. 111. The government now objects. Doc. 122. I find that Morrow has been fully advised of the potential conflict and expressed his desire for Nadig to continue to represent him and that Nadig has affirmed that he does not believe the investigation will compromise his representation, and I overrule the government's objections, with the exception of one " objection" that I sustain as a technical matter. I thus adopt Judge Ferenbach's findings to the extent consistent with this order, and deny the motion.
Defendant Morrow and his co-defendants were jointly indicted on April 17, 2013. Doc. 1. On September 24, 2013, Morrow made his initial appearance and retained Nadig as his lawyer. Docs. 20 (minutes), 21. After his initial appearance, Morrow met with the government and signed a non-binding plea agreement with a cooperation provision. Doc. 78 at 4. The agreement was transmitted to the court in April 2014. Doc. 78 at n.1.
After transmission of the plea agreement, Nadig discovered that he was under investigation by the government for actions he had allegedly taken while representing defendant Robert Wolfe in an unrelated criminal matter. Docs. 78 at 4; 109 at 1. It then moved to appoint Morrow new counsel in this case, claiming that Nadig's continued representation of Morrow (which includes defending Morrow during his anticipated testimony against his co-defendants) is compromised because Nadig will now have an incentive to " appease" the government by permitting Morrow to be subjected to a more comprehensive examination. Doc. 78. Judge Ferenbach conducted hearings on the motion on three occasions, Docs. 97, 101, 110, and ordered supplemental briefing. See Docs. 106, 107, 109. The supplemental briefing included an in camera description of the government's ongoing investigation of Nadig. Nadig also submitted an affidavit attesting that he will be able to provide Morrow with competent representation as his role in the upcoming trial will be de minimis and will pertain only to the advice he provides to Morrow as a cooperating witness. Doc. 109 at 1-2. Nadig also affirms that: (1) he negotiated the plea deal on Morrow's behalf prior to learning of the investigation; (2) that he and Morrow agreed that the plea deal was the best possible deal Morrow would receive; (3) he could not envision how he could benefit from placing Morrow in a worse situation during the course of his continued representation; and (4) if he believed that his continued representation of Morrow would compromise Morrow's case, he would have filed a motion to withdraw. Id. Finally, on October 1, 2014, in compliance with Judge Ferenbach's order, Morrow executed a written waiver of any conflict. Doc. 107 at 6. The waiver is set out in a letter from Nadig to Morrow, acknowledges that Morrow knows that Nadig is under investigation by the Government related to the Wolfe matter, advises that Morrow should consider: (1) how the investigation could impact him; (2) whether the fact of the investigation compromised Morrow's confidence in Nadig's representation; (3) that he could seek independent counsel to assist him in determining whether or not to consent; and (4) that he could reach out to Nadig if he had any questions. Id. at 6-7. Morrow executed the conflict letter acknowledging that he " consent[s] to the terms of representation set forth" in the letter. Id. at 7.
After reviewing this supplemental information, Judge Ferenbach concluded that Nadig's continued representation of Morrow in this case would not violate either the Nevada Rules of Professional Conduct or the Sixth Amendment, and he issued proposed findings and recommendations to that effect. Doc. 111. The government objects to Judge Ferenbach's conclusions. Doc. 122. Having carefully considered the motion de novo, I overrule the government's objections for the reasons below.
The district court reviews objections to a magistrate judge's proposed findings and recommendations de novo  and " may accept, reject, or modify the recommendation, receive further evidence, or resubmit the matter to the magistrate judge with instructions."  Local Rule IB 3-2(b) requires de novo consideration of specific objections only, and the standard of review for the unobjected-to portions of the report and recommendation is left to the district judge's discretion.
Nevada Rule of Professional Conduct 1.7(a) governs conflicts of interest between an attorney ...