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Mindful that motions to disqualify an attorney should be viewed skeptically but unable to fathom how a “Chinese wall” could prevent an exchange of confidences in a two-person law office, a Northern District of New York judge has taken the unusual step of barring a Manhattan lawyer from an upstate criminal case. Senior Judge Howard G. Munson granted a motion by federal prosecutors and barred Jeffrey L. Bernfeld from an ongoing prosecution, mainly on the grounds that Bernfeld’s partner was previously disqualified in the multidefendant case. Although Bernfeld’s clients opposed their attorney’s disqualification, none of the 13 former clients of his law partner did so. The unusual ruling in United States v. Salvagno, 5:02-CR-51, stems from an indictment alleging multiple counts of racketeering, money laundering and fraud in connection with an asbestos abatement business. Two of the defendants were represented by David B. Bernfeld of Skolnick, Hochberg & Bernfeld in Manhattan and his son, Jeffrey, of New York’s DeMatteo Bernfeld. The disqualification motion arises from the fact that the younger Bernfeld’s partner, Joseph DeMatteo, was previously disqualified from representing 10 separate targets of a probe that led to an indictment and two superseding indictments. DeMatteo was initially hired by 10 targets at the behest of David Bernfeld. Prosecutors moved to disqualify DeMatteo on the grounds that his representation of several suspects in a single investigation created an actual conflict of interest. Ultimately, DeMatteo and the elder Bernfeld consented to an order of disqualification that barred DeMatteo from representing the 10 initial targets. DeMatteo continued to represent three other targets, but discontinued his representation of one of them. That left a situation in which 13 of DeMatteo’s former clients, including seven unindicted co-conspirators and six cooperating co-defendants, have interests at odds with those of the remaining defendants. David and Jeffrey Bernfeld were co-counsel to two defendants, with the son operating as a solo practitioner. However, on April 1, 2001, Jeffrey Bernfeld joined DeMatteo in a partnership. The question before Judge Munson was whether DeMatteo’s access to client secrets and confidences should preclude his partner from participating in the case. Munson observed that the 2nd U.S. Circuit Court of Appeals has held that disqualification motions reside in the sound discretion of the trial court, but also that such motions are viewed with disfavor, and “a party seeking disqualification must meet a high standard of proof.” Here, while Bernfeld’s clients had no issue, DeMatteo’s former clients did. In fact, all 13 have specifically declined to waive any conflict of interest, and one joined in the government’s motion. ‘CHINESE WALL’ The court noted that Bernfeld and DeMatteo apparently made a sincere effort to “screen each other from their involvement in this case,” and erected a so-called “Chinese Wall” to protect the integrity of client confidences. However, Judge Munson expressed doubt that those efforts were truly effective. “Although Jeffrey Bernfeld and DeMatteo aver that they implemented the screening procedures prior to forming their law firm, it is not clear to the court how disclosures, albeit inadvertent, can be prevented in a firm consisting of only two attorneys,” Munson wrote. Additionally, Judge Munson said that even if the inadvertent sharing of confidences did not occur, the matter creates an appearance of impropriety that could undermine public confidence in the bar. Munson’s order does not affect the continued participation of David Bernfeld in the case. He gave the defendants until March 14 to retain additional counsel, should they choose to do so. Appearing were David Bernfeld, Jeffrey Bernfeld and Emil M. Rossi of Syracuse, N.Y., for the defendants, and Assistant U.S. Attorney Craig A. Benedict for the prosecution.

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