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Kronberg v. LaRouche, Not Reported in F.Supp.2d, 2010 WL 1443934

Facts

Over twenty years ago, Markham, as an AUSA, prosecuted Lyndon LaRouche, during which time Kronberg testified against LaRouche. In 2009, Kronberg filed a lawsuit against LaRouche and others, alleging conspiracy and defamation stemming from her testimony. Defendants moved to disqualify Markham, claiming he had access to confidential information that could disadvantage them in the current case.

Markham was substantially and personally involved in prosecuting LaRouche in a number of jurisdictions over a period of years during the 1980's.

Issue

Whether Markham should be disqualified from representing Kronberg due to his prior access to confidential government information related to LaRouche.

Defendants have now moved to disqualify Markham on the grounds that Markham had access to non-public, confidential information concerning LaRouche in connection with the criminal prosecutions against him, including classified information, that has never been disclosed to LaRouche or his criminal defense counsel.

Rule

Virginia Rule of Professional Conduct 1.11(c) prohibits a lawyer from representing a private client whose interests are adverse to a person about whom the lawyer has confidential government information acquired while serving as a public officer.

Rule 1.11(c) states in relevant part: Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.

Analysis

The court found that Markham had actual knowledge of confidential government information related to LaRouche from his time as a prosecutor. Despite Markham's claims of not recalling the information, the court determined that the passage of time did not negate his actual knowledge. The court also concluded that the confidential information could be used to the material disadvantage of the Defendants, thus warranting disqualification.

The Court must therefore consider whether the passage of twenty years coupled with Markham's assertion that he does not recall the substance of any of the information is sufficient to establish that Markham no long has actual knowledge of the confidential government information.

Conclusion

The court granted the motion to disqualify Markham, emphasizing the need to preserve the integrity of the judicial system and avoid any appearance of impropriety.

Accordingly, Rule 1.11(c) applies and Markham must be disqualified.

Who won?

Defendants prevailed in the motion to disqualify Markham because the court found that his prior access to confidential information could materially disadvantage them in the current litigation.

For all of these reasons, the Court concludes that Defendants have met the high burden of establishing that the confidential government information obtained by Markham during the LaRouche prosecution 'could be used to the material disadvantage' of Defendants in this lawsuit.

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