United States District Court, M.D. Alabama, Northern Division
OPINION AND ORDER
MYRON H. THOMPSON, District Judge.
A jury found defendant Steven P. Mock guilty of one count of conspiracy to commit wire fraud and financial-institution fraud, 18 U.S.C. § 1349, six counts of wire fraud, 18 U.S.C. § 1343, and three counts of financial-institution fraud, 18 U.S.C. § 1344. The question of Mock's competency was raised at sentencing, and the court ordered that the government's evaluation of Mock be conducted on an outpatient, non-custodial basis. United States v. Mock, 2014 WL 1491198 (M.D. Ala. Apr. 15, 2014) (Thompson, J.). The case is now before the court on Mock's motion to determine whether the government's proposed evaluator should be disqualified because of a conflict of interest. The government will be permitted to proceed with its proposed evaluator.
In its indictment and at trial, the government alleged that Mock, along with co-defendants Paul Hulse, Sr., and Frank J. Teers, conspired to, and actually did, defraud financial institutions out of millions of dollars. Specifically, Hulse represented himself to be a wealthy businessman seeking loans and offering ample collateral in the form of bonds, when in reality he owned no bonds. Teers, a stockbroker, provided documentation and managed the buying and selling of bonds to facilitate the scheme. Mock is an attorney. As alleged by the government, Mock contributed to the conspiracy by vouching for Hulse and confirming his supposed assets. Hulse pleaded guilty to a related charge, while Mock and Teers were convicted at trial. Hulse and Teers have been sentenced; Teers, but not Hulse, has appealed.
The procedural background with regard to Mock's competency is set forth in more detail in the court's previous opinion. Mock, 2014 WL 1491198 at *1-2. The issue of Mock's competency was raised by the court at sentencing, which was continued generally pending a competency hearing. Mock's counsel arranged a private evaluation, the conclusion of which was that Mock is not competent and was not competent at the time of trial. The parties agreed that the government would conduct its own evaluation. The government sought an inpatient evaluation in Bureau of Prisons ("BOP") custody, and Mock sought to have the evaluation conducted out of custody, on an outpatient basis. The court concluded that due process required the government to establish a compelling government interest in order to justify a custodial evaluation and that the government had failed to do so in this case. The court therefore ordered that the government's evaluation be conducted on an outpatient basis. Id.
Apparently, the government had some difficulty finding an expert to conduct that evaluation in Texas, where Mock lives. Eventually, the government reached an agreement with Dr. Steven Rosenblatt, a forensic psychiatrist. However, during the course of the government's discussions with Rosenblatt, it became clear that Rosenblatt had been involved in this case previously: he was retained to, and actually did, conduct a competency evaluation of Mock's co-defendant, Hulse. Rosenblatt informed the government that he had received no information about Mock during the course of his evaluation of Hulse, and Hulse's counsel confirmed that he did not provide Rosenblatt with any information about Mock. The government informed Mock's counsel of the prior involvement, and Mock filed the instant motion to determine whether Rosenblatt has a conflict of interest.
Mock asks the court to disqualify Dr. Rosenblatt from conducting a competency evaluation in this case. Before turning to whether that step is warranted, and indeed whether the court even has the authority to do so, the court will first strive to distill Mock's argument and the support he cites for it. In so doing, the court notes that this argument is quite difficult to follow, and so the court will try to be as concrete as possible in discussing Mock's position.
Mock's core argument is that Rosenblatt's prior involvement in Hulse's case, combined with his proposed involvement in Mock's case, creates a conflict of interest. Generally speaking, a conflict of interest is defined as "A real or seeming incompatibility between one's private interests and one's public or fiduciary duties" or "A real or seeming incompatibility between" two different duties, such as a conflict between "the interests of two of a lawyer's clients." Black's Law Dictionary (9th ed. 2009), Conflict of Interest.
At the outset, it is helpful to distinguish three kinds of problems that are sometimes described as falling under this rubric: (1) actual conflict of interest, meaning a situation that actually compromises an individual's ability to fulfill his public or fiduciary duties; (2) potential conflict of interest, meaning a situation that presents a substantial risk, depending on intervening events, of compromising an individual's ability to fulfill his public or fiduciary duties; and (3) appearance of conflict of interest, meaning an individual's ability to fulfill his public or fiduciary duties is not compromised but may be perceived as compromised by third parties. See, e.g., Kevin McMunigal, Rethinking Attorney Conflict of Interest Doctrine, 5 Geo. J. Legal Ethics 823, 846 (1992) (discussing, and criticizing as theoretically inconsistent, distinctions drawn among actual, potential, and appearance of conflicts).
Mock argues that Dr. Rosenblatt's situation is an example of ethically problematic "multiple relationships." The best way to grasp what he means by multiple relationships is to consider the most common example of multiple relationships in the context of forensic psychiatry: the so-called dual agency' problem. See Steven H. Berger, MD, Ethics and Dual Agency in Forensic Psychiatry, Psychiatric Times, June 1, 1998 (Doc. No. 475). This problem generally arises when a single psychiatrist serves in the same case as both the clinical treating physician and the forensic evaluator. This can create a conflict of interest: as the treating physician, the doctor's primary duty is to do what is best for the patient; but, as a forensic evaluator, the doctor's primary duty is to give the court an honest assessment of the subject. Sometimes an honest assessment is not in the patient's best interests, hence the conflict.
Mock does not argue that Rosenblatt's involvement in this case presents the dual-agency problem of acting in both treating and forensic capacities. After all, Rosenblatt has not served as a treating physician to anyone involved in this case. Rather, he has served in only forensic roles: first performing a forensic evaluation of Hulse, and now proposing to perform such an evaluation of Mock.
Nevertheless, Mock argues that Rosenblatt's involvement raises the related issue of multiple relationships, meaning in general two or more roles or relationships that are in tension with each other. To flesh out the nature of Mock's concerns, the court looks to the various ethical guidelines for psychiatrists and psychologists on which the parties have relied in this case. The forensic psychiatry guidelines indicate that involvement in the adversarial process carries with it the potential to infect an evaluator's opinions with bias. American Academy of Psychiatry and the Law, Ethics Guidelines for the Practice of Forensic Psychiatry (2005) (Doc. No. 471-1) at 3 ("Being retained by one side in a civil or criminal matter exposes psychiatrists to the potential for unintended bias and the danger of distortion of their opinion."). "It is the responsibility of psychiatrists to minimize such hazards by acting in an honest manner and striving to reach an objective opinion." Id . Of particular concern when it comes to such bias is the conflict, discussed above, "inherent in... differing clinical and forensic roles." Id . The more general Principles of Medical Ethics further recognizes that the psychiatrist's outside relationships, separate and apart from his dual clinical and forensic roles, have the potential to conflict with his duties and taint his evaluation. American Psychiatric Association, Principles of Medical Ethics, With Annotations Especially Applicable to Psychiatry (Doc. No. 471-2) (2013) at 13.
Finally, Mock relies on guidelines for psychologists. He acknowledges that Rosenblatt, as a psychiatrist, is not bound to follow those guidelines. But, he argues, they are relevant and shed light on the similar ethical issues presented in the two closely related fields. The psychology guidelines warn against conflicts which may impair the practitioner's ability to perform his work, and offer guidance with regard to resolving such conflicts:
"Forensic practitioners refrain from taking on a professional role when personal, scientific, professional, legal, financial, or other interests or relationships could reasonably be expected to impair their impartiality, competence, or effectiveness, or expose others with whom a professional relationship exists to harm.
"Forensic practitioners are encouraged to identify, make known, and address real or apparent conflicts of interest in an attempt to maintain the public confidence and trust, discharge professional obligations, and maintain responsibility, impartiality, and accountability.... Forensic practitioners consider whether a prudent and competent forensic practitioner engaged in similar circumstances would determine ...