The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER DENYING MOTION TO DISQUALIFY ATTORNEY GARY S. HARRISON
Attorney Gary S. Harrison represents the lead Defendant in this case, Henry Huynh. The Government moves to disqualify Harrison asserting that there is a serious potential for conflict arising out of his representation of three former clients, Vi Kien Tang, Henry Liu, and Da Thi Lam. For the reasons explained below, the Court DENIES without prejudice the Government's Motion for Harrison's disqualification.
On July 10, 2008, the Grand Jury indicted fourteen defendants in the instant matter, which involves an alleged ecstasy distribution ring. Attorney Gary S. Harrisoncommenced his representation of the lead defendant, HenryHuynh, on December 11, 2008 [Docket No. 21].
On January 9, 2009, the Government brought a Motion to Inquire as to a Conflict of Interest of Attorney Gary S. Harrison [Docket No. 73]. The Government brought to the attention of the Court Harrison's representation of Vi Kien Tang (Defendant 8 in this case) in a related Central District of California matter. Upon learning that the Government had also charged Vi Kien Tang in the instant matter, Harrison promptly withdrew from his representation of Tang in the Central District. (Harrison Decl. ¶ 8.)
On February 2, 2009, Attorney Harrison filed a Response to the Government's Motion to Inquire [Docket No. 90]. On February 5, 2009, the Government filed an Ex Parte Memorandum in Support of the Disqualification of Attorney Gary S. Harrison Because of an Actual Conflict of Interest.The Government's Ex Parte Memorandum alleges a conflict of interest based not only on Harrison's former representation of Tang, but also his representation of another individual, Henry Liu, in a prior matter. Harrison represented Liu when he was initially charged with attempted murder based on an incident involving several individuals in two cars outside an arcade. (Harrison Decl. ¶ 11.) Liu entered a negotiated plea for assault with a deadly weapon and was sentenced to two years in prison. (Id.) It is unclear from the record when Harrison's representation of Liu ended.
On February 23, 2009, the Government filed a Supplemental Submission in Support of Disqualification of Attorney Gary S. Harrison. The Government's Supplemental Submission alleges an additional potential conflict of interest based on Harrison's former representation of Da Thi Lam, Huynh's mother. On February 6, 2009, Harrison submitted a claim by Lam to the Drug Enforcement Administration Asset Forfeiture Section, concerning her alleged ownership of a 2004 Mercedes Benz that was seized in connection with this action. (Govt. Supp. Submission in Support of Disqualification, Ex. E.) The Government's wiretap line sheets present evidence that Huynh himself owned the car and that Lam may have falsified her claim. (Govt. Supp. Submission in Support of Disqualification, Ex. F--G.) On March 2, 2009, Harrison filed a Supplement Response to the Government's Supplemental Submission.
In its Motion, the Government contends that a serious potential for conflict of interest exists based on attorney Harrison's probable division of loyalties between his current client, Defendant Huynh, and his former clients, Vi Kien Tang, Henry Liu, and Da Thi Lam. The Government argues that this potential for conflict warrants Harrison's disqualification even if he obtains conflict waivers from all four clients.
A. The Right to Conflict-Free Counsel
An element of the Sixth Amendment right to counsel is the right of a defendant who does not require appointed counsel to choose who will represent him. United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006). The Court must recognize a presumption in favor of Defendant's counsel of choice. United States v. Wheat, 486 U.S. 153, 164 (1988). This presumption may only be overcome by an actual conflict or a serious potential for conflict. Id. However, an attorney may proceed despite a conflict "if the defendant has made a voluntary, knowing, and intelligent waiver." United States v. Martinez, 143 F.3d 1266, 1269 (9th Cir. 1988) (quoting Garcia v. Bunnell, 33 F.3d 1193, 1195 (9th Cir. 1994)).
Nevertheless, "the essential aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant be inexorably represented by the lawyer whom he prefers." Wheat, 486 U.S. at 159. Federal district courts have an independent interest in ensuring that criminal trials are fair and ethical. Id. at 160. Accordingly, district courts possess "substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses." Wheat, 486 U.S. at 163.
Conflicts of interest may result from either simultaneous or successive representation. Thomas v. Municipal Ct. Of the Antelope Valley Judicial District of Cal., 878 F.2d 285, 288 (9th Cir. 1989). Here, attorney Harrison no longer represents Vi Kien Tang, Henry Liu, or Da Thi Lam. Thus, this is a case of successive representation. "With successive representation cases, 'conflicts of interest may arise if the cases are substantially related or if the attorney reveals privileged communications of the former client or otherwise divides his loyalties.'" Id. (quoting Manhault v. Reed, 847 F.2d 576, 580 (9th Cir. 1988), cert. denied, 488 U.S. 908 (1988)). "Substantiality is present if the factual contexts of the two representations are similar or related." Trone v. Smith, 621 F.2d 994, 998 (9th Cir. 1980). Moreover, where there is a "reasonable probability that confidences were disclosed which could be used against the former client in the later adverse proceeding, a substantial relationship between the two cases will be presumed." Thomas, 878 F.2d at 288.
In assessing the potential for conflict, the Court may look in part to the relevant rules of professional conduct. See United States v. Gaitan-Ayala, No. 07-CR-00268-01, 2008 WL 1752678 *3 (D. Haw. April 17, 2008). The Local Rules of this District require attorneys to comply with the State Bar of California's Rules of Professional Conduct. CivLR 83.4(b). These rules are not exhaustive and ...