Former baseball star Roger Clemens today agreed to keep a lead attorney on his defense team even though the lawyer’s potential conflict of interest will restrict what he can say in court proceedings and share with another lawyer on the case.
The lead attorney, Rusty Hardin, simultaneously represented Clemens and Andy Pettitte for a brief period in 2007, prior to the publication of the so-called “Mitchell Report” that examined steroid use in Major League Baseball.
Pettitte is a government witness who is expected to testify that Clemens once told him about his use of performance enhancing drugs. Federal prosecutors in Washington notified the trial judge, Reggie Walton, about the potential defense attorney conflict of interest. Walton convened the lawyers in court this afternoon to discuss the issue.
Hardin told Walton that he does not recall giving Pettitte advice during the week or so that he and Pettitte shared an attorney-client relationship.
Co-counsel Michael Attanasio, vice chairman of Cooley LLP's litigation department, was retained specifically to get around any conflict of interest, Hardin said in court. He said he has not shared with Attanasio any information that Pettitte provided. Attanasio is expected to cross-examine Pettitte if the Clemens case goes to trial. (Prosecutors said today they are seeking an affidavit from Pettitte regarding his waiver of any conflict.)
Standing between Hardin and Attanasio, Clemens told Walton he knows he’s entitled to conflict-free counsel. Walton went on to describe a hypothetical scenario in which Hardin would not be able to use certain information that Pettitte provided—or omitted—to challenge his credibility. Clemens, dressed in a black suit with a black tie, said he understood. Asked whether he waived the potential conflict, Clemens said, “That is correct, your honor.”
The hearing was short and drama free. As the proceeding was wrapping up, Walton spoke up from the bench to tell the lawyers about a recent conversation that he said needed to be put on the record in an abundance of caution.
Walton also told the lawyers in the case about a chat he had a couple of months ago with former baseball outfielder Ken Griffey Sr., with whom Walton said he used to play ball. During a homecoming event in Pennsylvania, Griffey told Walton that Clemens is a “good guy.” Walton declined to speak about the Clemens case with Griffey.
In court today, Walton said he doesn’t think Griffey was trying to influence his handling of the case. Hardin and the prosecutors said they have no problem with Walton remaining as the presiding judge.
isn't the more significant conflict, what advise Mr. Hardin provided to Roger Clemens in the run-up to his testimony before congress, which is the subject matter of the perjury prosecution. my recollection is that the under-oath hearing was held at the request of Hardin, who demanded on Clemens' behalf an opportunity to clear his name of the conclusions reached in the Report to Congress on steroid use.
Posted by: jrterrier | February 03, 2011 at 11:17 AM
I don't think this is a waivable conflict.
Rule 1.7 that a waiver must be accompanied by... (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
If the judge can cite a hypothetical whereby this won't be true, how can the conflict be waived? There can be circumstances where Hardin can't meet this requirement.
Posted by: Jack Marshall | February 03, 2011 at 09:26 AM