Full opinion text
OPINION and ORDER MARK S. DAVIS, District Judge. This criminal matter is before the Court on a motion filed by defendant W. Wayne Perry, Jr. (“Perry” or “Mr. Perry”) seeking a bill of particulars as to Count Fourteen of the superseding indictment, ECF No. 64, and a motion filed by the United States of America (“Government”) seeking to disqualify Perry’s retained counsel based on the alleged need for counsel to testify as a fact witness at trial. ECF No. 80. Also pending before the Court is a motion filed by co-defendant Angela Perry, Mr. Perry’s wife, seeking to join in the motion for a bill of particulars. ECF No. 91. This Court previously issued an Order deferring ruling on Mr. Perry’s motion seeking a bill of particulars and instructed the parties to confer in an effort to agree on additional disclosures that could be made by the Government to narrow the field of evidence to be admitted at trial without giving Defendant an improper preview of the Government’s case. ECF No. 74. As the parties were unable to reach such an agreement, the Court held a hearing on both motions on May 30, 2014. For the reasons set forth in detail below: (1) Angela Perry’s written motion for leave to join in Mr. Perry’s motion seeking a bill of particulars is GRANTED; (2) the joint motion seeking a bill of particulars is GRANTED; and (3) the Government’s motion to disqualify defense counsel is DENIED. I. Factual and Procedural Background A. Allegations in the Indictment Mr. Perry and his wife Angela Perry (collectively with Mr. Perry, “Defendants”) are charged with numerous health care fraud related offenses in an eighteen-count superseding indictment that was filed on February 5, 2014. ECF No. 61. As stated in the superseding indictment, Mr. Perry owned and operated Community Personal Care, Inc. (“CPC”), a home health care business, between January of 2009 and January of 2013. Id. The superseding indictment charges that Defendants conspired to commit health care fraud, committed health care fraud, and made false statements relating to health care matters, among other things. Id. Although the majority of the counts in the superseding indictment set forth particular allegations outlining the charged offense conduct, Count Fourteen broadly alleges that Defendants participated in falsification or alternation of “office records” over a nearly four year period without identifying those office records that were allegedly falsified. B. Mr. Perry’s Asserted Facts On November 29, 2012, federal agents investigating CPC executed a search warrant at CPC’s office. During the search, Mr. Perry was informed by federal agents that the search was part of a Medicaid fraud investigation. Bond Hearing Tr. 23, ECF No. 79. Within several days of such search, Mr. Perry retained the Williams Mullen law firm to provide legal advice. Broughton Aff. ¶ 3, ECF No. 87. Williams Mullen immediately began an internal investigation into CPC’s records, and, as characterized by Mr. Broughton of Williams Mullen, such investigation revealed documentary evidence that CPC employees, including but not limited to CPC staffing coordinators Vernice Spain and Sarina Freeman, were stealing from CPC and overbilling Medicaid. Id. ¶ 4. In December of 2012, Perry’s counsel contacted federal agents and prosecuting attorneys to both share defense counsel’s discovery of illegal actions undertaken by CPC employees and to request that the Government investigate such matters. Id. ¶¶ 6-8. Defense counsel specifically requested that the Government perform surveillance of an upcoming meeting between Vernice Spain and another CPC employee that purportedly had an illegal purpose. Id. ¶¶ 7-8. After Perry’s counsel informed him that the Government declined the defense’s invitation to coordinate the investigation of CPC employees and further chose not to perform surveillance of the reported illegal meeting, “Mr. Perry sought advice [of counseljas to whether he could terminate the employment of Vern-ice Spain and Sarina Freeman.” Id. ¶¶ 8-9. After consulting with counsel, Perry/CPC terminated Vernice Spain and Sar-ina Freeman in December of 2012. Id. ¶ 10. However, Mr. Broughton advised Mr. Perry not to take any criminal or civil action agaiinst either of the terminated employees until it was clear how the federal government’s investigation unfolded. Id. ¶ 11. Many months later, on October 16, 2013, Mr. Broughton met with both the FBI agent and Assistant United States Attorney in charge of the CPC investigation/prosecution and again informed them that Vernice Spain and Sarina Freeman, and others, were responsible for false Medicaid billings and theft of both public and CPC funds. Id. ¶ 12. However, the Government made clear to Mr. Broughton that it believed that Mr. Perry was the “mastermind” who had orchestrated the false Medicaid billings and that both Mr. Perry and Angela Perry would likely be named as eo-defendants in a criminal case. Id. Less than a month later, on November 6, 2013, a criminal indictment was returned by the grand jury against Mr. Perry, Angela Perry, and one other individual who was charged with falsification of records to cover-up the Medicaid fraud charged in the superseding indictment. ECF No. 1. After the return of the original indictment, Williams Mullen again reviewed CPC’s records. Broughton Aff. ¶ 13. Such investigation revealed, as characterized by the defense, improper “bonus checks” issued in July of 2012 to Vernice Spain, Sarina Freemen, and Shavonne Freeman, that were separate and apart from their authorized CPC payroll direct deposits. Id. ¶¶ 13-14. According to Mr. Broughton, unlike the previously discovered Medicaid “kickback” scheme involving Vernice Spain and another employee, the unauthorized bonus checks issued in July of 2012 “did not appear to be tied to any false billings to Medicaid, only theft directly from CPC’s account.” Id. ¶ 14. After discussing this matter with Mr. Perry, “Williams Mullen, as counsel for CPC and its owner, Mr. Perry, advised Mr. Perry that CPC should file a criminal complaint against Ms. Spain, Sarina Freeman and Shavonne Freeman.” Id. ¶ 15. Mr. Broughton advised Mr. Perry “that Sha-vonne Freeman should be named in the criminal complaint” because she “had clearly received an unauthorized ‘bonus’ check” in July of 2012. Id. In discussing the proposed criminal complaint with Mr. Perry, a complaint that would be filed with local non-federal law enforcement authorities, Mr. Broughton “did not advise Mr. Perry to inform or not inform the [City of Norfolk] detective of the ongoing federal criminal case.” Id. ¶ 16. In addition to the affidavit Mr. Brough-ton submitted to this Court in opposition to the Government’s pending motion, Mr. Perry submitted his own affidavit confirming each of the above statements of fact. Perry Aff., ECF No. 86. Specifically, Mr. 'Perry states that he fired Vernice Spain and Sarina Freeman after consulting with counsel, that he did not take any civil or criminal action against these individuals between their December 2012 termination date and October of 2013 based on defense counsel’s advice to wait and see how the federal investigation unfolded, that Perry “did not authorize” the bonus checks issued in July of 2012, and that the bonus checks “did not appear to be linked in any way to Medicaid” but instead “appeared to be stolen directly from CPC’s account.” Perry Aff. ¶¶ 8-10, 14. Mr. Perry further states in his sworn affidavit that Mr. Broughton communicated with both Perry and James Sears (“Mr. Sears”), CPC’s former Chief Financial Officer (“CFO”), about the bonus checks and about filing a criminal complaint, that Mr. Sears and Perry made their report of embezzlement to local authorities at the direction of Mr. Broughton, and that defense counsel “did not advise [Mr. Perry] to inform or not to inform the magistrate or [local] law enforcement of the ongoing federal criminal case.” Id. ¶¶ 18-22. Further corroborating Mr. Perry’s version of events, Mr. Sears also submitted a sworn affidavit to the Court outlining his communications with Perry’s counsel and his involvement in filing the criminal complaint in April of 2014. Sears Aff, ECF No. 88. Specifically, Mr. Sears indicates that he provided CPC financial records to Perry’s counsel at counsel’s request, that typically CPC “bonus” checks were only issued around the holidays, that Perry’s counsel communicated with Mr. Sears via email about filing a criminal complaint with local authorities bajsed on the alleged embezzlement by former CPC employees, and that Mr. Sears ultimately made such report of embezzlement as CFO of CPC on April 1, 2014 “at the direction of Gray Broughton.” Id. ¶¶ 8-17. C. Government’s Asserted Facts The Government has not advanced an affidavit offering any facts at this time, but does cite to testimony provided at Mr. Perry’s bond revocation hearing conducted on May 5, 2014, by Magistrate Judge Lawrence R. Leonard. Bond Hearing Tr., ECF No. 79. The Government also has proffered evidence that it intends to introduce at trial to demonstrate that Mr. Perry was the “mastermind” behind the Medicaid fraud charged in the superseding indictment and that he is accusing former employees Vernice Spain, Sarina Freeman, and others, of illegal conduct to deflect blame from himself. As will be discussed in greater detail below, the Government fails to advance any facts suggesting the existence of any inconsistencies between defense counsel’s version of events leading up to the April 2014 complaint and Mr. Perry’s own version of the same events. Moreover, the Government openly acknowledges that it does not dispute the accuracy of Mr. Broughton’s statements in his affidavit, and does not accuse defense counsel of any misconduct. However, it appears that the Government seeks to question defense counsel at trial for two reasons: (1) the Government speculates that it can elicit inconsistencies between defense counsel’s testimony and Perry’s testimony; and (2) the Government seeks to demonstrate, through referencing trial evidence that will be before the jury at the time the Government questions defense counsel, that Mr. Perry did not admit his criminal conduct to his lawyers, thus undercutting Perry’s ability to rely on an “advice of counsel” defense at trial. II. Discussion — Motion for Bill of Particulars A. Standard As discussed on the record at the hearing on Perry’s motion seeking a bill of particulars, “the purpose of a bill of particulars is to enable a defendant to obtain sufficient information on the nature of the charge against him so that he may prepare for trial, minimize the danger of surprise at trial, and enable him to plead his acquittal or conviction in bar of another prosecution for the same offense.” United States v. Schembari, 484 F.2d 931, 934-35 (4th Cir.1973) (citing United States v. Dulin, 410 F.2d 363, 364 (4th Cir.1969)). However, a bill of particulars is “not to be used to provide detailed disclosure of the government’s evidence in advance of trial.” United States v. Automated Medical Labs., Inc., 770 F.2d 399, 405 (4th Cir.1985) (citing United States v. Anderson, 481 F.2d 685, 690 (4th Cir.1973)). A bill of particulars does not amend or alter the indictment, but instead “merely amplifies the indictment by providing missing or additional information so that the defendant can effectively prepare for trial.” United States v. Fletcher, 74 F.3d 49, 53 (4th Cir.1996) (citing United States v. Howard, 590 F.2d 564, 567 (4th Cir.1979)). In considering whether to grant a defendant’s motion seeking a bill of particulars, it is appropriate for the district court to inquire into the information that has already been provided by the government during discovery. United States v. Society of Independent Gasoline Marketers of America, 624 F.2d 461, 466 (4th Cir.1980). Although a motion seeking a bill of particulars should not be used to require the government to preview its case, in cases involving vaguely asserted charges of fraud, perjury, or alteration of records, a bill of particulars may be necessary in order to provide a defendant a full and fair opportunity to prepare a defense. See United States v. Sampson, 448 F.Supp.2d 692, 696 (E.D.Va.2006) (“In the case of fraud or perjury, it is critical that the government identify in the indictment the dates of the fraudulent conduct, the specific fraudulent documents, and the fraudulent statements within the documents.” (citing United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir.1987))); Bortnovsky, 820 F.2d at 574 (holding that the defendants were “hindered in preparing their defense” in light of “the district court’s failure to compel the Government to reveal crucial information,” associated with fraud charges, including the dates of several staged burglaries and “the identity of three fraudulent documents”). A defendant is not fairly apprised of the necessary information merely because the government provided “mountains of documents to defense counsel who were left unguided as to which documents would be proven falsified” at trial. Bortnovsky, 820 F.2d at 575; see United States v. Modi, 197 F.Supp.2d 525, 530 (W.D.Va.2002) (recognizing, “as argued by the defendants, that the volume of discovery in a complex case may itself impede rather than assist the defense in its understanding of the government’s case,” but nevertheless denying a motion for a bill of particulars in a criminal case involving a medical fraud conspiracy because the defendants conceded that the government provided “charts or summaries” identifying the “patients at issue, the dates of services, the suspect treatments, and the amounts paid for those allegedly improper services”). B. Analysis Here, Defendant Perry seeks a bill of particulars only as to Count Fourteen of the superseding indictment, which broadly alleges that, over a period of almost four years, Defendants, and other CPC employees acting under the direction of Defendants, “knowingly altered, falsified and made a false entry” in CPC’s “office records ... including DMAS-90s” with the intent to obstruct and influence the proper administration of the federal Medicaid program. Super. Indict. Count 14, ECF No. 61. It appears largely undisputed from the parties’ briefs and oral argument that, during discovery, the .Government has in essence “opened its files” to Defendants. However, it also appears undisputed that the Government’s “files” associated with this case include tens of thousands of documents. The most glaring issue with the manner in which Count Fourteen is charged is the fact that it alleges alteration of unidentified “office records” over a nearly four year period of time. At the hearing on the instant motion, the Government explained to the Court that, in an effort to reduce the number of relevant documents, the Government specifically identified to Defendants 72 of the 504 patient files that were seized from CPC as the files on which the Government will rely during its case in chief at trial. Moreover, the Government indicated on the record that, with respect to Count Fourteen, the Government’s eyidence will not rely on unidentified types of “office records,” but will instead be limited to the “DMAS-90” time sheets found within the 72 identified patient files. When determining whether to grant a criminal defendant’s motion for a bill of particulars, the government’s disclosures during discovery are clearly relevant to the Court’s exercise of its discretion to grant such a motion. Modi, 197 F.Supp.2d at 530. Here, the Government has both greatly reduced the number of relevant patient files and has limited the relevant evidence to a single type of allegedly false document: DMAS-90 time sheets. However, notwithstanding the Government’s good-faith actions to reduce the pool of relevant documents, both parties represented at the hearing that there are likely “thousands” of DMAS-90 time sheets in the 72 patient files at issue, as these time sheets were filled out for each patient, sometimes on a weekly basis, and some of the patient files cover the entire period of almost four years set forth in Count Fourteen. Based on this Court’s questioning of counsel at the hearing on the motion for a bill of particulars, it is clear to the Court that Mr. Perry’s motion has merit. The Government has acknowledged that the falsification/alteration charged in Count Fourteen took different forms, including adding or changing information on previously created DMAS-90 time sheets, or creating an entirely new falsified time-sheet to replace a previously created DMAS-90. Such differing forms of alteration/falsification will undoubtedly make it difficult for the defense to predict, in advance of trial, which of many thousands of documents the Government will seek to prove were altered or falsified. Adding to such difficulty, it appears that the DMAS-90s included in any given patient file may have been prepared by several different individuals that provided care to such patient, and differing preparers may have differing methods of completing (or altering) such forms. Moreover, the Government has acknowledged that even its witnesses will have difficulty identifying which DMAS-90s were falsified because many of such witnesses participated in the alteration or falsification of “hundreds and hundreds” of DMAS-90s covering a several year period. Accordingly, without further particularization, Defendants will be left to sift through thousands of DMAS-90s contained in 72 patient files covering a nearly four-year period with limited, if any, ability to reasonably identify which documents the Government will attempt to prove false at trial. As noted at the hearing, to the extent the defense seeks to call a handwriting expert, or seeks to cross check the relevant time-sheets against other CPC records in an effort to defend the authenticity/accuracy of such documents, the thousands of potentially falsified documents create a herculean task for the defense. The instant scenario therefore appears even more likely to result in “unfair surprise” at trial than the scenarios faced by the courts in Sampson and Bortnovsky. Moreover, the Government’s admission that its own witnesses might have difficulty identifying the falsified/altered documents underscores the need for further particularization to the extent that the Government seeks to introduce altered or falsified documents at trial to prove the Defendants’ guilt as to Count Fourteen. Accordingly, after considering the nature of the charge set forth in Count Fourteen, and the facts of this case, including disclosures made during discovery, the Court finds that the Government must provide more particularity than is currently provided through the identification of “thousands” of DMAS-90s that may, or may not, have been altered or falsified. The Defendant’s joint motion for a bill of particulars is therefore GRANTED, and the Government is ORDERED to identify to counsel for both remaining Defendants the falsified/forged/altered DMAS-90s that the Government will, or may, rely on at trial as evidence of Defendants’ guilt as to Count Fourteen of the superseding indictment. The Government should identify such DMAS-90s to counsel for both remaining defendants, no later than July 23, 2014. The timing of such disclosure should both allow the Government sufficient time to review the relevant DMAS-90s with its witnesses, and allow sufficient time for Defendants to hire any responsive experts (if necessary). To the extent that, after such date, the Government identifies, one or more additional altered or falsified DMAS-90s which it will, or may, rely on at trial with respect to Count Fourteen, the Government should immediately notify defense counsel. III. Discussion — Motion to Disqualify The Government has filed a motion seeking to disqualify Mr. Perry’s lawyers, including Mr. Broughton, Mr. Davis, and the entire Williams Mullen law firm. EOF No. 80.- The Government asserts that Mr. Perry’s April 2014 complaint to local authorities about embezzlement allegedly committed by former CPC employees was actually an effort to tamper with witnesses who will be called to testify against Perry at trial. Although Mr. Perry has not been formally charged with witness tampering, the Government contends that Perry’s 2014 conduct is evidence of his “guilty knowledge” as to the fraud crimes that are charged in the superseding indictment. The Government further argues that, because defense counsel provided Mr. Perry advice regarding the 2014 complaint, counsel “injected” themselves into the fact pattern of this case, are necessary and likely adverse witnesses to Mr. Perry, and that based on such facts, the entire Williams Mullen law firm should be disqualified. Mr. Perry counters by arguing that defense counsel’s testimony is not necessary at trial, that such testimony is not in dispute, and that it is subject to stipulation. Moreover, defense counsel represents that the defense strategy does not require defense counsel to testify on behalf of Mr. Perry at trial, and that even if defense counsel were called as a witness by the Government, any such testimony would only corroborate Mr. Perry, and thus it will not be “adverse” to Mr. Perry’s interests. A. Ethical Standard The standard governing disqualification based on the potential that an attorney will be called on to testify as a fact witness at trial is grounded in counsel’s ethical duties to the client, as well as counsel’s ethical duties to the legal profession as a whole. The Local Rules of the United States District Court for the Eastern District of Virginia state that “the ethical standards relating to the practice of law in criminal cases in this Court shall be Section II of Part Six of the Rules of the Virginia Supreme Court as it may be amended or superseded from time to time.” E.D. Va. Loc.Crim. R. 57.4(1). Such cross-reference to the Virginia Rules of Professional Conduct results in Rule 3.7, titled “Lawyer . as Witness,” being the guiding ethical standard for the analysis of the pending motion to disqualify counsel. Va. Rule Prof 1 Conduct 3.7. Such Rule is commonly referred to as the “witness-advocate rule.” i. Analysis of Virginia Rule 3.7 In order to properly interpret the current version of Virginia’s witness-advocate rule, Rule 3.7, one must first examine both the predecessor Virginia Model Code of Professional Responsibility, and Rule 3.7 of the ABA Model Rules of Professional Conduct on which the current Virginia Rule 3.7 was based. Prior to Virginia’s adoption of Rule 3.7, which took effect on January 1, 2000, a Virginia lawyer’s conduct was governed by the Virginia Code of Professional Responsibility. Relevant here are former Disciplinary Rules 5-101 and 5-102, which provide as follows: DR 5-101. Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment.— (A) A lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client may be affected by his own financial, business, property, or personal interests, except with the consent of his client after full and adequate disclosure under the circumstances. (B) A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify: (1) If the testimony will relate solely to an uncontested matter or to a matter of formality and there is no reason to believe that substantial evidence 'will be offered in opposition to the testimony. (2) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client. (3) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value - of the lawyer or his firm as counsel in the particular case. DR 5-102. Withdrawal as Counsel When the Lawyer Becomes a Witness.— (A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his. firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(1) through (3). (B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a ivitness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client. Rules of the Supreme Ct. of Va. Pt. 6, § II Canon 5 (1999) (emphasis added). Virginia subsequently overhauled its Code of Professional Responsibility, and adopted a new version of the witness advocate rule, drawing heavily from the ABA’s Model Rules of Professional Conduct. The relevant ABA Model Rule states as follows: Rule 3.7 Lawyer As Witness (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client. (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9. ABA Model Rule of Professional Conduct 3.7. Largely adopting the ABA Model Rule, Virginia Rule 3.7, as currently in force, provides as follows: Rule 3.7. Lawyer As Witness (a) A lawyer shall not act as an advocate in an adversarial proceeding in which the lawyer is likely to be a necessary witness except where: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client. (b) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer may be called as a witness other than on behalf of the client, the lawyer may continue the representation until it is apparent that the testimony is or may be prejudicial to the client. (c) A lawyer may act as advocate in an adversarial proceeding in which another lawyer in the lawyer’s firm is likely to be called as witness unless precluded from doing so by Rule 1.7 or 1.9. Va. Rule Prof 1 Conduct 3.7. Critical to the proper interpretation of Virginia Rule 3.7 is the fact that, unlike many jurisdictions, Virginia did not fully transition from the witness advocate rule as set forth in the prior ABA Model Code of Professional Responsibility to the new Rule 3.7 as modeled by the ABA’s Rules of Professional Conduct. Rather, Virginia retained a vestige of the former disciplinary rules when it retained, in large part, DR 5-102(B). Comparing the text of Virginia Rule 3.7 with the ABA Model Rule, subpart (a) of the Virginia Rule is substantially similar to ABA Model Rule 3.7 sub-part (a), although the Virginia Rule applies not just to trials but also to adversarial proceedings. Subpart (b) of the Virginia Rule is not found in the ABA Model Rule, but is instead a modified version of DR 5-102(B). Subpart (c) of the Virginia Rule is substantially similar to subpart (b) of the ABA Model Rule, again expanding its application from trials to include adversarial proceedings. In order to determine the effect of Virginia’s retention of a vestige of the former Code of Professional Responsibility, it is helpful to begin with an analysis of the prior Code. DR 5 — 101(B) generally prevented a lawyer from accepting employment in contemplated or pending litigation when that lawyer “ought to be called” as a witness. Importantly, the text of DR 5-101(B) does not differentiate as to which party will later have the need to call a lawyer to testify as a witness, but instead appears to apply to all pre-engagement scenarios when a lawyer recognizes a need to testify for any party in contemplated or pending litigation. In contrast to DR 5-101(B), DR 5-102 governed a lawyer’s discovery of an apparent need to testify when such discovery was made after a lawyer accepted employment. Also critically different from DR 5-101 § B), DR 5-102 did not provide one collective rule that was applicable irrespective of which party would likely call the lawyer as a witness, but instead provided one rule applicable only to situations where the lawyer would testify “on behalf of his client,” DR 5-102(A), and a second rule applicable where the lawyer would be called as a witness “other than on behalf of his client,” DR 5-102(B). When the ABA adopted Model Rule 3.7, it replaced DR 5-101(B) (pre-engagement rule) and DR 5-102 (post-engagement rule that delineated different guidelines depending on which party would be calling the lawyer as a witness) with a single rule. Such single Model Rule is not only applicable to all engagements irrespective of the timing of the discovery of the apparent need to testify, but it is also applicable to all situations where a lawyer is a necessary witness regardless of which party will call the lawyer as a witness. As indicated above, although Virginia adopted, with only slight modification, the ABA’s new facially all inclusive single rule as set forth in ABA Model Rule 3.7(a), Virginia retained a vestige of its old rule, which applies only when two criteria are satisfied: (1) a lawyer’s discovery of the need to testify occurs after the lawyer undertakes employment; and (2) the lawyer will (or may) be called on to testify “other than on behalf of the client.” Va. Rule Profl Conduct 3.7(b). When interpreting the scope of current Virginia Rules 3.7(a) and 3.7(b), it appears that, when read together, Rule 3.7(a) applies in all situations except when the dual requirements of Va. Rule 3.7(b) are satisfied. In the latter scenario, Rule 3.7(b) controls. Supporting the above textual analysis, the “Commentary” that follows Virginia Rule 3.7, which was authored by the Virginia Standing Committee on Legal Ethics, states as follows: “[T]he Committee incorporated the language of DR 5-102(B) as paragraph (b) to give the Rule additional flexibility.” Va. Rule Profl Conduct 3.7, Committee Commentary. Such statement, albeit brief, clearly establishes both that: (1) the retention of a' vestige of Virginia’s former ethical rules was intentional; and (2) that the goal for such retention was to create a rule that is more flexible than the ABA Model Rule. Athough the Committee comment does not provide a detailed explanation as to the justifications for retaining language from DR 5-102(B), the retention of such language appears to be supported by the well-documented concern that a motion to disqualify opposing counsel is subject to abuse, as it can be used solely as a tactical weapon. See Adelman v. Kernbach, 43 Va.Cir. 544, 549, 1997 WL 33573504 (Norfolk 1997) (indicating that the prejudice requirement included in DR 5-102(B) “guards against parties filing motions merely to obtain a tactical advantage”) (citations omitted); Personalized Mass Media Corp. v. Weather Channel, Inc., 899 F.Supp. 239, 242-43 (E.D.Va.1995) (indicating that “[mjotions for disqualification under DR 5-102(B) ... are subject to abuse1,” that there is a “real risk that disqualification will be sought for tactical advantage only and not because of the ethical considerations on which the witness-advocate rule is based,” and disqualification under DR 5-102(B) therefore requires, among other things, a showing that counsel’s testimony “is or may be prejudicial to the client whose lawyer is to be called as a witness by the adverse party”); Richard E. Flamm, Lawyer Disqualification: Disqualification of Attorneys and Law Firms 233-34 (2d ed. 2014) (“[Sjeveral courts have made it clear that the advocate-witness rule was not designed to permit a party to call an opposing attorney as a witness for the purpose of disqualifying him, that they will not tolerate attempts to invoke the rule for such a purpose; and that, when a lawyer is to be called other than on behalf of his own client, thé court must take pains to ascertain whether the challenged lawyer’s testimony is truly necessary,1 or merely a fabrication of [the] client’s adversary.”); see also Va. Rule Prof'l Conduct 1.7, Comment [9] (indicating that objections raised by opposing parties regarding conflicts of interest “should be viewed with caution” as they are subject to misuse). In addition to the above, although there appears to be limited case law from state or federal courts analyzing the interplay between Virginia Rule 3.7(a) and 3.7(b), one appellate decision from Virginia arguably recognizes that Virginia Rule 3.7(b) is an alternative to the otherwise broad applicability of Virginia Rule 3.7(a), stating as follows: Virginia Rule of Professional Conduct 3.7 provides that “a lawyer should not act as an advocate in an adversarial proceeding in which the lawyer is likely to be a necessary witness.” Teleguz v. Commonwealth, 273 Va. 458, 490, 643 S.E.2d 708 (2007). This rule also provides, however, that “[i]f, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer may be called as a witness other than on behalf of the client, the lawyer may continue the representation until it is apparent that the testimony is or may be prejudicial to the client.” Va. R. of Profl Conduct 3.7(b). Campbell v. Commonwealth, No. 269-12-1, 2012 WL 6571281, at *2 (Va.App. Dec. 18, 2012) (emphasis added). Lending further support for this Court’s textual analysis of Virginia Rule 3.7, one commentator examining the state to state differences in Rule 3.7 has noted as follows: “Virginia incorporates language from DR 5-102(B) of the ABA Model Code of Professional Responsibility to deal with situations in which a lawyer learns that he or she may be called as a witness ‘other than on behalf of the client’ after accepting the representation.” Stephen Gillers et al., Regulation of Lawyers: Statutes and Standards 350 (Concise ed.2014) (emphasis added). For the reasons discussed above, Virginia Rule 3.7, when read in its entirety, appears to be best interpreted as providing one ethical rule that is generally applicable in most cases where a lawyer learns that his testimony is “likely to be necessary” at a trial or adversarial proceeding. Va. Rule Profl Conduct 3.7(a). However, in the defined circumstances where a lawyer discovers, during representation that he is likely to be called as a witness by the opposition, the alternative rule set forth in 3.7(b) applies. Id. at 3.7(b). Here, as the Government’s motion implicates both whether defense counsel are “necessary” witnesses for the defense, and whether defense counsel will be called at trial as witnesses for the Government, this Court will separately analyze Rules 3.7(a) and 3.7(b). Before doing so, the Court reviews both the justifications for the witness advocate rule and the constitutional right to counsel of choice in criminal proceedings. ii. Justification for Witness Advocate Rule Notwithstanding the significant revisions of Virginia’s ethical rules taking effect in 2000, cases decided prior to Virginia’s adoption of Rule 3.7 remain instructive, particularly when considering the reasons underpinning the witness advocate rule. In Personalized Mass Media, a case decided by another judge of this Court under the predecessor ethical rules, the Court explained the witness advocate rule as follows: The rule derives from the fundamental fact that the roles of advocate and witness are inconsistent, it being the function of the advocate to argue the cause of another and the role of a witness to state facts objectively. In recognition of this fundamental difference in the roles of witness and advocate, the rule serves as a “prophylactic rule designed to protect the interests of the client, the adverse party, and the institutional integrity of the legal system as a whole.” Personalized Mass Media, 899 F.Supp. at 242 (quoting Estate of Andrews v. United States, 804 F.Supp. 820, 823 (E.D.Va.1992)). Similarly, the commentary to Virginia Rule 3.7 provides the following explanation: Combining the roles of advocate and witness can prejudice the opposing party and can involve a conflict of interest between the lawyer and client. The opposing party has proper objection where the combination of roles may prejudice that party’s rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.... Whether the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the lawyer’s testimony, and the probability that the lawyer’s testimony will conflict with that of other witnesses.... Va. Rule of Profl Conduct 3.7, Comments [1], [2], [4]. See Flamm, supra, 224-31 (discussing “a number of very different reasons” offered for the witness advocate rule by various courts over the years, labeling as “[p]erhaps the most compelling reason” the possibility that the factfinder will confuse what an attorney states “in her witness capacity” with what she states “in her role as advocate,” and further noting that some early rationales for the witness advocate rule, including the “perceived need to preserve the integrity of the judicial process by avoiding even the appearance” that counsel may distort the truth to benefit his or her client, have more recently been criticized as insufficient to warrant “the drastic remedy of disqualifying counsel”). Because the witness-advocate rule protects not only the interests of the client, but also the adverse party and the legal system as a whole, a party is generally prohibited from “waiving” its application. Premium Products, Inc. v. Pro Performance Sports, LLC, 997 F.Supp.2d 433, 437-38, 2014 WL 644398, at *5 (E.D.Va. Feb. 19, 2014). Having outlined some of the reasons that courts generally disfavor permitting counsel to perform dual roles in the same adversarial proceeding, this Court must separately consider the contours of a litigant’s right to counsel of his or her choice, because “[e]ven if there is risk of ... prejudice” resulting from a court allowing a lawyer to act in a dual role, “in determining whether the lawyer should be disqualified, due regard must be given to .the effect of disqualification on the lawyer’s client.” Va. Rule of Profl Conduct 3.7, Comments [1], [2], [4], As discussed below, the interests at stake in a criminal case unquestionably have, a constitutional dimension, and therefore, a'motion filed by the government seeking to disqualify a criminal defendant’s chosen retained attorney is not to be taken lightly. B. Constitutional Right to Counsel of Choice i. Right Rooted in the Sixth Amendment The Sixth Amendment to the .United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const. Amend VI. As the Supreme Court of the United States (“Supreme Court”) has long-recognized, when an individual is charged with a criminal offense he must be afforded a “fair opportunity to secure counsel of his own choice.” Powell v. State of Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932). This is so because “the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment.” Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). However, because the “essential aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers,” the right to counsel of one’s own choosing is “circumscribed in several important respects.” Id. These include: (1) • a chosen attorney must be licensed to practice; (2) a defendant cannot insist on representation “by an attorney he cannot afford or who for other reasons declines to represent the defendant”; and (3) a defendant cannot insist on an attorney who has an “ongoing relationship with an opposing party,” to include the government, nor may he insist on a lawyer who has ethical obligations to other defendants charged in the same conspiracy, because even if all such defendants seek to waive any ethical conflicts, “[flederal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.” Id. at 159-60, 108 S.Ct. 1692. Although a criminal defendant’s right to counsel of choice is not unlimited, the Supreme Court has recently clarified the constitutional underpinnings of such right and expressly recognized the severe consequences flowing from the improper deprivation of that right. In United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), the Court reiterated the fact that “an element” of the constitutional right to counsel is “the right of a defendant who does not require appointed counsel to choose who will represent him.” Id. at 144, 126 S.Ct. 2557 (citing Wheat, 486 U.S. at 159, 108 S.Ct. 1692). In explaining the breadth of such right, and the consequences for its violation, the Court explained that while the Due Process clause of the Constitution guarantees a fair trial, and the provisions in the Sixth Amendment (including the right to effective counsel) help define the basic elements of a fair trial, “[t]he right to select counsel of one’s choice ... has never been derived from the Sixth Amendment’s purpose of ensuring a fair trial.” Id. at 146-47, 126 S.Ct. 2557. Rather, the right to counsel of choice “has been regarded as the root meaning of the constitutional guarantee,” and thus,- if such right is wrongly denied, “it is unnecessary to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation.” Id. at 147-48, 126 S.Ct. 2557 (citing Wheat, 486 U.S. at 160, 108 S.Ct. 1692; Andersen v. Treat, 172 U.S. 24, 19 S.Ct. 67, 43 L.Ed. 351 (1898)); see United States v. Basham, 561 F.3d 302, 324-25 (4th Cir.2009) (clarifying that while an indigent criminal defendant only has the constitutional right to the effective assistance of counsel, a defendant with means to hire an attorney has the additional constitutional right to “counsel of [his] own choosing”). Stated differently, deprivation of the right to counsel of choice for a defendant with means to hire an attorney “is ‘complete’ when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received.” Gonzalez-Lopez, 548 U.S. at 148, 126 S.Ct. 2557. Because the erroneous deprivation of counsel of choice “pervades the entire trial,” and the consequences are “ ‘necessarily un-quantiflable and indeterminate,’ ” such deprivation is a “structural error” warranting a new trial. Id. at 150, 126 S.Ct. 2557 (quoting Sullivan v. Louisiana, 508 U.S. 275, 282, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993)); see United States v. Davila, — U.S. -, 133 S.Ct. 2139, 2149, 186 L.Ed.2d 139 (2013) (discussing the “ Very limited class of [structural]errors’ that trigger automatic reversal because they undermine the fairness of a criminal proceeding as a whole,” which include improper “denial of counsel of choice” (quoting United States v. Marcus, 560 U.S. 258, 263, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010))). ii. Balancing of Rights Notwithstanding the fact that the right to counsel of choice is rooted in the Sixth Amendment, a trial court maintains “ “wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar.’ ” Hyatt v. Branker, 569 F.3d 162, 172 (4th Cir.2009) (quoting Gonzalez-Lopez, 548 U.S. at 152, 126 S.Ct. 2557). Accordingly, as explained by the United States Court of Appeals for the Fourth Circuit (“Fourth Circuit”), while there is “ ‘a presumption in favor of [a defendant’s] counsel of choice,’ ” a conflict of interest remains an adequate basis on which to disqualify a defendant’s chosen attorney because the judiciary has an ‘“independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that, legal proceedings appear fair to all who observe them.’” Basham, 561 F.3d at 323 (quoting Wheat, 486 U.S. at 160, 108 S.Ct. 1692). The decision to disqualify a criminal defendant’s counsel of choice is “a serious matter and must be decided on a case-by-case basis.” United States v. Franklin, 177 F.Supp.2d 459, 464 (E.D.Va.2001) (citing Tessier v. Plastic Surgery Specialists, Inc., 731 F.Supp. 724, 729 (E.D.Va.1990)); see United States v. Collins, 920 F.2d 619, 625 (10th Cir.1990) (“ ‘Attorneys are not fungible;’ often ‘the most important decision a defendant makes in shaping his defense is his .selection of an attorney.’ ” (quoting United States v. Laura, 607 F.2d 52, 56 (3d Cir.1979))). Moreover, even in a civil case, where Sixth Amendment protections are not implicated, “the disqualification of a party’s chosen counsel is a serious matter which cannot be based on imagined scenarios of conflict.” Tessier, 731 F.Supp. at 729 (citing Richmond Hilton Associates v. City of Richmond, 690 F.2d 1086, 1089 (4th Cir.1982)). Rather, there must be an “actual conflict of interest” or a “likely” conflict. Richmond Hilton, 690 F.2d at 1089. Because a motion seeking to disqualify counsel can be used improperly “for purely strategic purposes,” the moving party “bears a ‘high standard of proof.’ ” Tessier, 731 F.Supp. at 729 (quoting Government of India v. Cook Industries Inc., 569 F.2d 737, 739 (2d Cir.1978)). Accordingly, when faced with a motion seeking disqualification of a retained attorney, a district court must balance the interests' of the public, and of the legal profession, against: (1) in a criminal case, the defendant’s Sixth Amendment right to counsel of choice; or (2) in a civil case, “ ‘the fundamental principle that a party ought to be represented by its counsel of choice if that is at all possible.’ ” Ford Motor Co. v. National Indem. Co., No. 3:12cv839, 2013 WL 4498698, at *4 (E.D.Va. Aug. 21, 2013) (quoting Personalized Mass Media, 899 F.Supp. at 242). In Aetna Casualty & Surety Co. v. United States, 570 F.2d 1197 (4th Cir.1978), a civil case, the Fourth Circuit’s opinion highlights the importance of a district court carefully evaluating, on a case by case basis, the likelihood of an ethical conflict arising at trial. In such case, the Fourth Circuit held that the district court erred by disqualifying defense counsel— the Department of Justice and United States Attorney — based on a purported conflict of interest between defendants. Id. at 1200-01. The Fourth Circuit explained that the district court’s hypothesis about possible scenarios that could arise wherein one defendant could exculpate himself by inculpating his codefendants was “based solely upon conjecture,” and “ignored the representation of Government counsel, which was accepted by the court ” that there was “no dispute” among the defendants with respect to the relevant facts. Id. at 1201 (emphasis added). In reaching such conclusion, the Fourth Circuit stated that it was in “full accord” with the following comments made by the Connecticut Bar Association as amici curiae in International Electronics Corp. v. Flanzer, 527 F.2d 1288 (2d Cir.1975): It behooves this court, therefore, while mindful of the existing [Disciplinary Rules of the] Code, to examine afresh the problems sought to be met by that Code, to weigh for itself what those problems are, how real in the practical world they are in fact, and whether a mechanical and didactic application of the Code to all situations automatically might not be productive of more harm than good, by requiring the client and the judicial system to sacrifice more than the value of the presumed benefits. Aetna Casualty, 570 F.2d at 1202 (quoting International Electronics, 527 F.2d at 1293). In addition to the' above, it must be noted that in seeking to define the legal test governing motions to disqualify opposing counsel, several prior opinions of this Court have relied, at least in part, on the following statement made by the Fourth Circuit: In determining whether to disqualify counsel for conflict of interest, the trial court is not to weigh the circumstances “with hair-splitting nicety” but, in the proper exercise of its supervisory power over the members of the bar and with a view of preventing “the appearance of impropriety,” it is to resolve all doubts in favor of disqualification. United States v. Clarkson, 567 F.2d 270, 273 n. 3 (4th Cir.1977) (quoting Gas-A-Tron of Arizona v. Union Oil Co. of California, 534 F.2d 1322, 1324-25 (9th Cir.1976)). The above quoted statement indicating that “all doubts” should be resolved in favor of disqualification, however, is arguably dicta as it does not appear in an opinion reviewing the propriety of a disqualification order, but instead appears in an opinion affirming a district court’s “judgment of contempt” flowing from a violation of a previously entered disqualification order. Id. at 271-73. Notably, the Clarkson opinion expressly states that the district court’s prior disqualification order was entered “without objection,” and further notes that the prior disqualification order was based on “an obvious conflict of interest.” Id. at 272-73. Additionally, and most importantly, the reference to erring on the side of disqualification not only appears in a footnote, but was made prior to the Supreme Court’s decisions in Wheat and Gonzalez-Lopez, which lend further clarity to the depth of the Sixth Amendment right to retain counsel of choice. See Sanford v. Commonwealth of Virginia, 687 F.Supp.2d 591, 602-03 (E.D.Va.2009) (noting that “[wjhile, as the Fourth Circuit explained in Clarkson, the assessment to be made in a disqualification motion cannot be made with ‘hair-splitting nicety,’ it is nonetheless true that the asserted conflict must be a real one and not a hypothetical one or a fanciful one,” and that “some stronger indicator than judicial intuition or surmise on the part of opposing counsel is necessary to warrant the drastic step of disqualification of counsel”) (internal quotation marks and citations omitted) (emphasis added). Moreover, the Fourth Circuit’s footnote statement in Clarkson, which has never been repeated by the Fourth Circuit, is expressly directed at “determining whether to disqualify counsel for conflict of interest,” not determining whether disqualification is necessary in a criminal case due to the potential that counsel will be called as a fact witness at trial. Clarkson, 567 F.2d at 273 n. 3; cf. United States v. Urutyan, 564 F.3d 679, 686-87 (4th Cir.2009) (noting in a more recent conflict of interest case that the presumption in favor of a criminal defendant’s counsel of choice, as recognized in Wheat, can be overcome by demonstrating either an “actual conflict” or a “serious potential for conflict,” without mentioning that a court should err on the side of disqualification) (internal quotation marks and citations omitted). Finally, subsequent to Clarkson, numerous states, including Virginia, have overhauled their ethical guidelines and adopted a rule that appears to create a higher burden in order to disqualify counsel. See Cannon Airways, Inc. v. Franklin Holdings Corp., 669 F.Supp. 96, 99-100 (D.Del.1987) § citing to various federal and state cases, as well as manuals/handbooks on professional responsibility, and concluding that the “language of [Delaware] Rule 8.7(a) is more restrictive than the ... language of [Delaware] DR 5-101(B) and DR 5-102(A)” and that a moving party is therefore required “to bear a higher burden” to demonstrate the propriety of disqualification); Flamm, supra, 217-18 (indicating that ABA Model Rule 3.7 was designed to “minimize the use of the advocate-witness rule as a tactical weapon, and ensure that a litigant’s choice of trial counsel would not be lightly disturbed,” and that although “[t]he wording of DR 5-102 and Model Rule 3.7 is similar, ... the Model Rule places a higher burden” on the party moving for disqualification). In contrast to Clarkson, here, this Court’s inquiry is informed by the Supreme Court’s opinions in Wheat and Gonzalez-Lopez, to include the direction in Wheat that a district court “must recognize a presumption in favor of [a defendant’s]counsel of choice.” Wheat, 486 U.S. at 164, 108 S.Ct. 1692 (emphasis added); see Gonzalez-Lopez, 548 U.S. at 148 n. 3, 126 S.Ct. 2557 (indicating that it was in Wheat that the Supreme Court “formulated the right to counsel of choice”) (emphasis added). Moreover, the facts of this case focus this Court’s inquiry on the ethics surrounding the witness advocate rule, not conflict of interest rules, and the fact pattern before this Court is a far cry from the clear conflict of interest that arose in Clarkson where the defendant attorney, in direct violation of a prior court order, had continued involvement with former tax clients while the government was in the process of interviewing such individuals as potential witnesses against the attorney in a criminal tax fraud case. Although one may question whether the footnote statement in Clark-son requires this Court to “resolve all doubts” in favor of disqualification when applying the witness advocate rule, this Court acknowledges the wealth of authority from prior opinions of this Court holding that “ ‘the right of one to retain counsel of . his choosing is secondary in importance to the Court’s duty to maintain the highest ethical standards of professional conduct to insure and preserve trust in the integrity of the bar.’ ” Sanford, 687 F.Supp.2d at 602 (quoting Tessier, 731 F.Supp. at 729). Moreover, the Fourth Circuit recently noted in Urutyan that the “paramount concern is the judiciary’s ‘independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.’ ” Urutyan, 564 F.3d at 686 (quoting Wheat, 486 U.S. at 160, 108 S.Ct. 1692). There is therefore no question that the proper course is to disqualify counsel in the name of upholding compliance with ethical rules when an ethical conflict will undermine, or seriously threaten to undermine, the integrity of judicial proceedings. That said, this Court’s disqualification analysis is mindful of the Fourth Circuit’s post-Clarkson direction in Aetna Casualty that federal courts should avoid doing more harm than good through a “mechanical and didactic” application of the ethical rules, Aetna Casualty, 570 F.2d at 1202 (quoting International Electronics, 527 F.2d at 1293), as well as the Fourth Circuit’s subsequent statements in Shaffer v. Farm Fresh, Inc., 966 F.2d 142, 146-47 (4th Cir.1992), indicating that “in assessing the propriety of disqualifying counsel on ‘likely’ conflict grounds ... [t]he dras tic nature of disqualification [even in a civil casejrequires that courts avoid overly-mechanical adherence to disciplinary canons at the expense of litigants’ rights to freely choose their counsel.” This Court therefore endeavors to carefully weigh the unique facts of this case against the relevant ethical standards, taking into consideration defense counsel’s assurances, which cannot be discounted, id. at 147, as well as the prior decisions of this Court, the Fourth Circuit, and the Supreme Court, in a manner that seeks to avoid' not seeing the forest for the trees. Accordingly, as “charged by Wheat ” this Court is called upon to “exercise its sound discretion and determine independently whether the continued representation by [defense] counsel impedes the integrity of the proceedings” such that Perry’s chosen counsel' should be disqualified. Franklin, 177 F.Supp.2d at 464. Explaining the district court’s “broad discretion” in performing such balancing, the Fourth Circuit has noted as follows: Wheat thus requires a district court to exercise its own independent judgment as to whether the proceedings are likely to have the requisite integrity if a particular lawyer is allowed to represent a party. And, it made plain that for this purpose the court must have sufficiently broad discretion to rule without fear that it is setting itself up for reversal on appeal either on right-to-counsel grounds if it disqualifies the defendant’s chosen lawyer, or on ineffective-assistance grounds if it permits conflict-infected representation of the defendant. United States v. Williams, 81 F.3d 1321, 1324 (4th Cir.1996). In the end, while this Court must ensure the integrity of the proceedings, and will demand nothing less of licensed counsel than strict compliance with the ethical standards of the bar, contrary to the Government’s suggestion at oral argument, “there is no rule of evidence absolutely excluding the testimony of a lawyer on behalf of his client.” United States v. Nyman, 649 F.2d 208, 211 (4th Cir.1980). Rather, “the question whether an attorney is competent to testify” turns on application of the relevant ethical rules and is a matter “committed to the discretion of the trial court.” Id.; see Christensen v. United States, 90 F.2d 152, 154 (7th Cir.1937) (noting that there is not “ ‘a rule of absolute exclusion’ ” that prevents an attorney from testifying as a witness and that “ ‘the great majority of the courts prefer to leave the question to the sound discretion of members of the bar with a threat of scathing reprimand in case of abuse’ ” (quoting 5 Jones’ Commentaries on Evidence (Second Ed.) § 2154, p. 4079)). Stated differently, the witness advocate rule “does not render an attorney ' incompetent to testify,' but merely vests the Court with discretion to determine whether counsel may appear as a witness without withdrawing from the case.” Mercury Vapor Processing Technologies, Inc. v. Village of Riverdale, 545 F.Supp.2d 783, 788 (N.D.Ill.2008). As noted at the motions hearing, the balancing tasked to this Court is necessarily difficult at this stage in the proceedings because the Court is required to prognosticate how complex ethical principles will apply in light of the evidence to be presented at trial, yet the Court lacks access to the bulk of the evidence to be presented at trial. It is plain that this Court begins with the settled “presumption in favor of [Perry’s] counsel of choice,” Wheat, 486 U.S. at 164, 108 S.Ct. 1692, and the Court should “not interfere with that relationship” unless the government has met the “high standard of proof to show that disqualification is warranted” in light of the governing ethical standards and the “specific circumstances of the representation,” Franklin, 177 F.Supp.2d at 463-64 (quotation marks and citations omitted) (emphasis added); see United States v. Gearhart, 576 F.3d 459, 464 (7th Cir.2009) (noting that, in light of the Sixth Amendment right to counsel of choice, “disqualification of defense counsel should be a measure of last resort” (citing United States v. Diozzi, 807 F.2d 10, 12 (1st Cir.1986))). Although this Court’s analysis will be conducted through a careful step by step consideration of Rule 3.7, the Court’s