witness to retain, or appointing for him, counsel who has no such conflict. Although there will obviously be great reluctance to interfere with the individual's freedom to select his own attorney, the suggested course is the only one that can preserve the equally. valid right of the Government to his full and truthful testimony.

Both the courts and the various bar groups should be alerted to the serious issues of professional responsibility arising out of the representation of multiple interests during grand jury investigations, and Government counsel should press on every justifiable occasion for a judicial ruling on the question of conflict of interest and, where a conflict is found, for the replacement of the attorney involved.

RE:

Power of the Committee to Disqualify an Attorney
from Representing Multiple Witnesses

CONCLUSION

The committee under the House and its own rules accords

to witnesses the privilege to be accompanied by counsel.1

In doing so, it expressly reserves to the Chairman the discretion to punish breaches of order and decorum, and of professional ethics on the part of counsel by censure and exclusion from the hearing and may even cite the offender to the House for contempt.

Assuming the Chairman found the multiple representation of certain witnesses to be a violation of counsel's ethical responsibilities, the relevant rules would allow the Chairman to exclude the attorney from a hearing. In such an event both counsel and the witness would be restricted in challenging exclusion. An injunction in Federal Court would be barred

by the "speech or debate clause".3 The exclusion conceivably

could be attacked in a subsequent contempt action.

However,

no sixth amendment right to counsel attaching, it is unlikely the reviewing court would consider anything beyond the question

of whether the rules of the committee were satisfied.

The

requirements could be fulfilled by a summary finding by the Should the court find the proceedings

Chairman on the record.

require presence of counsel, then the committee may have to conduct a more rigorous examination of all the facts and circumstances to determine the validity of any applicable waiver and the degree of conflict before an exclusion could be validated by the court. In any event, the chairman or committee may wish to adopt by analogy the standards which would be operative in a judicial setting.5

Should the exclusion go unchallenged but the counsel undertake to represent the witness in a subsequent contempt

action, then the committee could oppose counsel's representation by special motion. The standards applied by the court in passing on the committee's motion would, of course, depend upon the court's interpretation of the demands of the Sixth Amendment and the relevant case law. The weight of authority seems to favor an independent judgment by the court as to the dangers presented by the representation. Waiver by defendant, no matter

how knowing or voluntary, would probably not be found to be determinative in such circumstances.

I. The Right to Counsel in
Congressional Committee Hearings

6

A witness called before the Select Committee on Assassinations has the privilege of being accompanied by counsel to assist the witness in his giving testimony. The privilege is extended pursuant to the rules of the Committee and of the House of Representatives.

The Committee by its own rules also endeavors to ensure that any witness who desires counsel but cannot afford one, is provided one on a voluntary basis.

7

In so doing the rules reserve to the chairman the

power to punish breaches of order and decorum, and of professional

ethics on the part of counsel, by censure and exclusion from

reason why the power could not be used to exclude an attorney from the committee's proceedings if the chairman found that the attorney's representation of several witnesses before the committee constituted a breach of order or professional ethics. In such circumstances there is little a witness or his counsel could do about it. Conceivably they could challenge the exclusion by court order. However, it seems more than likely that such an unjunction would be dismissed on "speech or debate" grounds.9

The only alternative open to witness would be to refuse to answer and take his chances on a contempt action. The witness could raise the objection in an inherent contempt or a criminal action. Or, should the witness be under an immunity order, the committee could choose to seek a civil contempt order in federal district court.

The witness would argue that the exclusion of his attorney deprived him of his constitutional right to counsel. However, the privilege of being represented by counsel in congressional hearings should not be confused with the right of a defendant to be represented by counsel in a criminal prosecution. The right to counsel is rooted in the Sixth Amendment to the Constitution. It provides that:

SIXTII AMENDMENT

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the assistance of counsel for his defense.