John Dougherty addresses reporters outside the courthouse following his arraignment, Feb. 1, 2019. (Photo: P.J. D'Annunzio/ALM)

The federal judge overseeing the case of Philadelphia union leader John Dougherty and several co-defendants has ruled that attorneys from the same firm working for two separate defendants can continue their representation, despite the government's concerns that a conflict of interest exists.

U.S. District Judge Jeffrey Schmehl of the Eastern District of Pennsylvania ruled in a March 25 order that Brian McMonagle and Fortunato Perri of McMonagle Perri McHugh Mischak and Davis could continue representing city Councilman Bobby Henon and International Brotherhood of Electrical Workers (IBEW) Local 98 union political coordinator Marita Crawford. Neither lawyer responded to a request for comment.

Prosecutors claimed that because both defendants were represented by the same firm, there was an inherent conflict of interest. In his Monday order, Schmehl said the defendants waived the right to raise any conflict concerns, but left room for the prosecution to bring up the issue again down the line.

“After conducting an inquiry into joint representation under Federal Rule of Civil Procedure 44(c), it is hereby ordered that counsel for Robert Henon and Marita Crawford may continue representation at the present time,” Schmehl said in his order. “Defendants Robert Henon and Marita Crawford waive any conflict of interest but the government reserves the right to raise this issue at a later time.”

Dougherty and seven others were charged in late January on 116 counts for allegedly conspiring to funnel union money into a personal “slush fund” for the Local 98 boss. Henon, a Philadelphia city councilman, is accused of acting at Dougherty's behest to advance the union leader's interests, including allegedly delaying legislation and drafting a resolution proposing to investigate a company that had towed Dougherty's car. Crawford, IBEW Local 98's political director, is charged with embezzlement of union funds, among other charges.

All defendants have pleaded not guilty. Both Henon and Crawford are out on bail.

“Despite the fact that Henon and Crawford are not charged together in any count, the government expects, at the very least, to introduce recorded conversations Crawford had with John Dougherty and with Robert Henon that constitute evidence of the honest services charges lodged against Dougherty and Henon,” Assistant U.S. Attorney Paul Gray wrote in the government's filing earlier this month. ”Thus, it is apparent that Henon or Crawford could take conflicting positions before trial, or during trial by testifying or making argument contrary to the other's interest. Additionally, one of these defendants could plead guilty and testify. In addition to the possibility that the cooperating defendant could inculpate the other, counsel for the remaining defendant would also face the possibility of having to cross-examine a client of his law firm, without making use of any privileged information that he might have obtained as a result of the joint representation.”

Gray added that while Henon and Crawford may put up a united front, “it is also possible that at least one of the defendants' best defense may be to deflect blame to the other.”