BECKLEY — An order was filed regarding a potential conflict of interest of an attorney in a criminal case against Dr. William Earley.
Earley is represented by Wesley Page of Flaherty Sensabaugh Bonasso. At the hearing, Jeffrey Wakefield represented the law firm, along with Salem Smith.
"Defendant Earley deserves counsel in which there is no question that his counsel is able to provide a complete, vigorous defense," the order states. "Unfortunately, due to the actions of the Flaherty Sensabaugh Bonasso PLLC in taking on the representation of Drs. [Chad and Samia] Turner with full knowledge of the disclosures made by the United States that made it clear that Drs. Turner were critical, adverse witnesses against Defendant Earley, Defendant Earley does not have the assurance that his attorneys can provide him the defense he deserves."
Earlier this year, 12 individuals were indicted on several felony charges involving controlled substances and violations of the Controlled Substances Act by employees of HOPE Clinic.
Earley was indicted on nine counts in February, an additional nine counts in March and a third set of nine counts in June.
In March, Page filed a notice of appearance that he would now be representing Earley. The United States filed a Notice of Potential Conflict on July 24, wherein Wakefield responded on Aug. 7. The United States then filed a memorandum regarding the issue and a hearing was scheduled for Aug. 13.
The United States believes that because Salem and Page work for the same law firm, and Salem was representing the Turners in an unrelated medical malpractice suit, that Page should not be representing Earley.
The Turners had previously worked as physicians with HOPE Clinic.
When the United States raised the issue of a potential conflict of interest, Smith responded that the law firm had done an analysis and concluded that no conflict existed.
The United States then requested further discussion in the matter and a conference call was held between Smith, Page, Wakefield and the counsel for the United States on June 21.
During the conference call, Wakefield stated that there was no conflict of interest and that the suit involving the Turners would be resolved and they would be former clients before Earley's trial, according to the order.
The United States believes there is a conflict between Earley and the Turners because Chad Turner's anticipated testimony involves Earley. Wakefield indicated they would do another analysis and that they believed if Chad Turner consented, there would be no possible conflict.
Chad Turner signed a waiver and Earley consented in July. Later, the United States spoke with the Turners after Smith's representation of them had ended and it was determined that the Turners had not spoken with independent counsel prior to signing the waiver and that they likely did not understand the nature of the conflict or the consequences of waiving the conflict.
At the Aug. 13 hearing, the court found that the law firm had a conflict at the time it took on the Turners as clients in May and that the Turners' adversity against Earley was known beforehand, according to the order.
Before taking on the Turners as clients in their case, the firm should have had Earley sign written consent based on the Turners' anticipated testimonies, which the firm did not do.
"The undersigned cannot overstate the gravity of the decision that was made by Flaherty Sensabaugh Bonasso, PLLC in taking on the representation of Drs. Turner knowing what was known by Wesley Page, Esq. regarding the evidence disclosed by the United States," U.S. Magistrate Judge Omar J. Aboulhosn wrote in the order. "Because of this action, the undersigned has no other choice but to deny Defendant Earley the choice of his counsel to represent him in this matter."
The law firm objected to the order on Aug. 29, stating that the United States failed to carry its “heavy burden” to demonstrate that disqualification is justified.
"Regardless of the Government’s contentions as to whether a concurrent conflict existed under Rule 1.7, however, it is clear that such a conflict, if any, was appropriately resolved upon the conclusion of Flaherty’s representation of Drs. Turner in connection with their providing informed consent, confirmed in writing, for Flaherty to continue its representation of Dr. Earley under Rule 1.9," the firm stated in the objection. "There being no ethical violation warranting Flaherty’s disqualification, and recognizing that disqualification 'should be a measure of last resort,'"
The firm requested that Aboulhosn's order be vacated and that the motion for disqualification filed by the United States be denied.
The United States filed a response to the objection on Sept. 4, in which it stated the court should uphold Aboulhosn's order, arguing that as soon as the firm took on the Turners as clients, there was actual conflict and it was no longer a "potential" conflict.
U.S. District Cout for the Southern District of West Virginia Case number: 5:18-cr-00026
