Waivable Conflict from Counsel’s Firm’s Prior Representation of a Victim Bank and Permissible PSR Disclosure to Treatment Providers on Supervised Release

I. Introduction

In United States v. Wells (2d Cir. Mar. 9, 2026) (summary order), defendant-appellant Laurell Wells appealed from a judgment of conviction in the Southern District of New York (Rakoff, J.) following a guilty plea to conspiracy to commit wire and bank fraud (18 U.S.C. § 1349), bank fraud and aiding and abetting (18 U.S.C. §§ 1344, 2), and aggravated identity theft (18 U.S.C. §§ 1028(a)(1), 1028A(b), 2). The district court imposed an aggregate 132-month term of imprisonment and five years of supervised release.

Wells raised two principal issues on appeal:

  1. Whether the district court erred in denying defense counsel’s motion to withdraw based on an asserted conflict arising from counsel’s firm’s prior representation of Chase Bank, an institutional victim of the charged fraud scheme.
  2. Whether the district court erred by authorizing disclosure of Wells’s Presentence Report (PSR) and mental-health evaluations to his cognitive behavioral therapy provider as part of supervised release.

The Second Circuit affirmed on both issues. Although the decision is a nonprecedential summary order, it is a useful synthesis of the Circuit’s conflict-waiver framework and its supervision-condition jurisprudence regarding treatment-related disclosures.

II. Summary of the Opinion

The court held that: (1) counsel’s firm’s prior representation of Chase created, at most, a waivable potential conflict, not an “actual” or “unwaivable” conflict; (2) the district court satisfied its duty to inquire and properly conducted a Curcio waiver process, and Wells knowingly and intelligently waived conflict-free representation; and (3) the supervised release authorization allowing the Probation Office to provide the therapist with the PSR and mental-health evaluations was within the court’s broad discretion and was reasonably related to treatment needs under 18 U.S.C. § 3553(a), without imposing a greater deprivation of liberty than necessary.

III. Analysis

A. Precedents Cited

1. Sixth Amendment conflict-free counsel and the trial court’s obligations

  • United States v. Levy, 25 F.3d 146 (2d Cir. 1994) (quoting Wood v. Georgia, 450 U.S. 261 (1981)): The court reiterates that the Sixth Amendment includes a right to counsel free from conflicts of interest. This anchors the inquiry/waiver framework the panel applies to Wells’s claim.
  • United States v. Lussier, 71 F.3d 456 (2d Cir. 1995): Provides the core structure used by the panel: when conflicts arise, the court must (i) inquire; then, if a conflict exists, (ii) ensure elimination or waiver; disqualifying counsel only when the conflict is so severe that “no rational defendant” would choose the representation. The opinion repeatedly uses Lussier’s taxonomy of severe/unwaivable vs. waivable conflicts.
  • United States v. Kliti, 156 F.3d 150 (2d Cir. 1998): Cited for the requirement that the district court determine whether there is an “actual conflict,” “potential conflict,” or “no conflict,” and that the court may rely on counsel’s representations in making that threshold assessment.
  • United States v. Curcio, 680 F.2d 881 (2d Cir. 1982): Supplies the procedural mechanism for obtaining a knowing, voluntary, and intelligent waiver of conflict-free counsel, including ensuring the defendant understands the risks and has an opportunity to consult independent counsel.
  • United States v. Oberoi, 331 F.3d 44 (2d Cir. 2003): Establishes the deferential abuse-of-discretion review for denial of withdrawal motions, particularly where withdrawal would disrupt proceedings (a salient point given the “eve of trial” timing here).

2. Waivability and the narrow category of “unwaivable” conflicts

  • United States v. Perez, 325 F.3d 115 (2d Cir. 2003): Central to the panel’s conclusion that “unwaivable” conflicts are a “very narrow category” and that prior representation of a witness/victim is “generally waivable.” Perez frames Wells’s argument as overinclusive and sets the default rule in favor of Curcio waivers rather than automatic disqualification.
  • United States v. Leslie, 103 F.3d 1093 (2d Cir. 1997): Used as an analogy that even prior representation of a codefendant may be merely potential and waivable, especially when the former client waives and does not testify. Wells extends this logic to a firm’s prior relationship with an institutional victim bank.
  • United States v. Basciano, 384 F. App’x 28 (2d Cir. 2010): Reinforces that prior representation of a cooperating witness is not necessarily unwaivable, supporting the court’s refusal to treat the Chase relationship as categorically disqualifying.
  • United States v. Arrington, 941 F.3d 24 (2d Cir. 2019): Cited for indicia of a valid waiver: understanding the risks, time to digest, and opportunity for independent counsel—factors the panel finds satisfied by the district court’s repeated advisals and offers to appoint separate counsel.

3. Tactical disagreements vs. conflicts requiring substitution

  • United States v. Rosemond, 958 F.3d 111 (2d Cir. 2020): The court relies on Rosemond to distinguish conflict concerns from ordinary strategic disagreements, emphasizing that the adversary process would break down if every tactical decision required client approval.
  • United States v. Rivernider, 828 F.3d 91 (2d Cir. 2016): Supports the principle that defendants cannot disrupt proceedings by demanding new counsel whenever they disagree with strategic, legal, or ethical judgments—key to rejecting Wells’s day-of-trial attempt to replace counsel based on cross-examination preferences.

4. Special conditions of supervised release and treatment disclosures

  • United States v. Dupes, 513 F.3d 338 (2d Cir. 2008): Provides the abuse-of-discretion standard of review for special supervised-release conditions.
  • United States v. Oliveras, 96 F.4th 298 (2d Cir. 2024): Confirms district courts’ “broad discretion” in crafting supervised-release conditions, framing the supervised-release issue in Wells.
  • United States v. Eaglin, 913 F.3d 88 (2d Cir. 2019): Supplies the limiting principles: conditions must be reasonably related to statutory sentencing factors, no greater deprivation of liberty than necessary, and consistent with Sentencing Commission policy statements.
  • United States v. Washington, 904 F.3d 204 (2d Cir. 2018): Treated as persuasive confirmation that authorizing release of psychological/psychiatric evaluations and the PSR to treatment providers is an accepted feature of treatment conditions, even though Washington was remanded on other grounds.
  • United States v. Harris, No. 24-1099-CR, 2025 WL 1040034 (2d Cir. Apr. 8, 2025): Directly supports the proposition that authorizing disclosure of PSRs and mental-health reports to providers is not error.

B. Legal Reasoning

1. The conflict inquiry: the court’s threshold duty

The panel first evaluates whether the district court satisfied its obligation to identify and classify the potential conflict. Applying Lussier and Kliti, it emphasizes that the trial court may rely on counsel’s representations and must determine whether the conflict is actual, potential, or nonexistent. The record showed: (i) counsel disclosed the issue pretrial; (ii) the court required written submissions; (iii) counsel explained why the conflict was “background,” likely not strategically salient, and waivable; and (iv) the court held a hearing to address waiver. That sequence satisfied the inquiry obligation.

2. Classification: why this was “waivable potential,” not “unwaivable”

Wells argued that prior firm representation of Chase (a victim bank) created an “actual and unwaivable” conflict. The panel rejected that framing. Relying on Perez (unwaivable conflicts are rare) and decisions treating prior representation of witnesses/codefendants as generally waivable (Perez, Leslie, Basciano), the court reasoned that:

  • Chase was an institutional victim rather than a current client whose interests were being actively advanced in related litigation.
  • The firm obtained a conflicts waiver from Chase, which purported to free counsel to cross-examine Chase witnesses without limitation.
  • Even when prior representation might affect cross-examination decisions, Second Circuit doctrine treats that as a candidate for disclosure and waiver, not automatic disqualification.

The net doctrinal move is to locate the case within the ordinary Curcio-waiver universe rather than the exceptional “no rational defendant” category that mandates disqualification under Lussier.

3. Validity of Wells’s waiver: knowing, voluntary, intelligent

The panel upholds the waiver as adequate under Curcio and Arrington. It highlights multiple safeguards:

  • Wells received notice of the conflict in advance and discussed it in court.
  • The district court explained the risk (e.g., less vigorous cross-examination of Chase employees because of the firm relationship).
  • The court repeatedly offered to appoint independent counsel to advise Wells, which he declined.
  • When Wells later sought to replace counsel, his stated reasons centered on tactical disagreement, not renewed conflict concerns.
  • The district court revisited and clarified the conflict on the first day of trial, including eliciting the government’s preview of the Chase witness testimony.

The panel also rejects Wells’s claim that he was coerced into waiver by the prospect of proceeding pro se. It treats the “counsel vs. pro se” choice as arising only after Wells’s tactical dispute, and it invokes Rosemond and Rivernider to explain that strategic friction does not entitle a defendant to new counsel, especially when substitution would disrupt trial.

4. Supervised release: disclosure of PSR and evaluations to treatment providers

On the supervised-release issue, the panel applies Dupes (abuse of discretion) and the constraint framework from Eaglin. It reasons that if mental health treatment is conceded to be appropriate, then providing the treating professional with relevant records—PSR plus psychological/psychiatric evaluations—is reasonably related to “medical care” and “corrective treatment” under 18 U.S.C. § 3553(a).

The court characterizes such disclosures as “routine” and relies on Washington and Harris as practical confirmation that authorizations of this kind fall within standard, lawful supervision practice. It also stresses the limited nature of the disclosure (to the provider) in concluding the condition is not a greater-than-necessary liberty deprivation under Eaglin.

C. Impact

  • Conflict practice (Curcio hearings): The decision reinforces that a law firm’s prior representation of an institutional victim (even one central to the charged conduct, like a bank) will typically be handled as a waivable potential conflict, especially where the former client provides a waiver. Practically, it encourages district courts to build a record through repeated advisals and explicit offers of independent counsel.
  • Limits on day-of-trial counsel substitution: By separating “conflict” from “tactics,” the order supports trial courts in denying substitution requests that are grounded in cross-examination disagreements, thereby reducing the ability to delay proceedings through late-stage dissatisfaction.
  • Supervised release confidentiality vs. treatment efficacy: The ruling adds to a line of Second Circuit dispositions approving PSR/evaluation disclosure to therapists when tied to treatment conditions, signaling that defendants challenging such disclosures must show something beyond generalized privacy concerns—e.g., overbreadth, lack of tailoring, or unnecessary downstream dissemination.

IV. Complex Concepts Simplified

Actual conflict vs. potential conflict
An actual conflict generally means a lawyer’s interests (or duties to someone else) are presently pulling against the client’s interests in a way that affects performance. A potential conflict means the risk exists but may never materialize. Potential conflicts are often handled through disclosure and waiver.
“Unwaivable” conflict
A conflict is “unwaivable” only in rare situations where the conflict is so severe that no rational defendant would choose to proceed with the lawyer even after being fully informed. Most conflicts—including many involving prior representations—are treated as waivable if properly disclosed.
Curcio hearing / Curcio waiver
A Curcio hearing is the process a judge uses to ensure a defendant understands a conflict of interest and voluntarily decides whether to give up the right to conflict-free counsel. Judges often offer appointment of independent counsel to advise the defendant before deciding.
Presentence Report (PSR)
A PSR is a confidential report prepared for sentencing that includes offense details, criminal history, and personal background (sometimes including mental-health information). Courts may permit limited sharing of a PSR with treatment providers when necessary to deliver effective court-ordered care.
Special conditions of supervised release
These are tailored requirements imposed after imprisonment (e.g., therapy, drug treatment). They must be connected to sentencing goals, be no more restrictive than necessary, and align with policy statements.

V. Conclusion

United States v. Wells affirms two practical rules within Second Circuit doctrine: (1) a defense lawyer’s firm’s prior representation of a victim bank is ordinarily a waivable potential conflict that can be managed through a properly conducted Curcio inquiry and waiver, rather than requiring automatic disqualification; and (2) when mental health treatment is imposed as a supervised-release condition, authorizing limited disclosure of the PSR and related evaluations to the treating provider is typically a permissible, reasonably related measure under 18 U.S.C. § 3553(a) and the Eaglin framework.

While nonprecedential, the order is a clear checklist-style application of established conflict and supervised-release principles, illustrating how robust record-making—especially repeated advisals and an offered opportunity for independent counsel—can insulate trial-court decisions from appellate reversal.