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United States of America v. Real Property Located At 6415 North Harrison Avenue

September 20, 2011


The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge




I. Introduction

On February 22, 2011, Plaintiff, United States of America ("United States" or "the government"), filed a complaint for forfeiture of Defendant Real Property located at 6415 North Harrison Avenue, Fresno, California ("the subject property"). (Doc. 1). On July 7, 2011, Brenda Grantland, counsel for Claimant Bok Hee Ee ("Claimant" or "Ms. Ee"), filed a motion to allow her to withdraw as counsel, as well as an application for court appointed counsel pursuant to 18 U.S.C. § 983(b)(2)(A). (Doc. 20). On July 11, 2011, the United States filed a response. (Doc. 21). On July 12, 2011, Claimant filed a motion for extension of time to file an answer to the complaint and a reply to the United States' response. (Doc.23).*fn1 She also filed a supplement memorandum in support of her requests on July 26, 2011. (Doc. 28).

On July 27, 2011, this Court ordered supplemental briefing. (Doc. 30). On August 10, 2011, Claimant filed a second declaration. (Doc. 38). The United States filed an opposition on August 24, 2011. Claimant filed a Reply on August 31, 2011. (Doc. 41). The matter was set for hearing on September 9, 2011. The Court took the matter under submission pursuant to Local Rule 230(g) on September 8, 2011. (Doc. 54). Upon a review of all of the pleadings, the Motion to Withdraw as Counsel is GRANTED. The Motion for Appointment of Counsel is DENIED. The Motion for an Extension of Time to File an Answer is GRANTED.

II. The Motion to Withdraw as Counsel

Ms. Grantland filed the Motion to Withdraw on the basis that she currently represents the Claimant and Claimant's daughter who are joint tenants of the subject property. Since the time Ms. Grantland was retained, she contends that a conflict has arisen between her two clients. In particular, she asserts pleadings filed in this case by the United States indicate that Claimant has been under investigation as a co-conspirator in the underlying criminal case against Claimant's husband in United States v. Kwan Choi, 1:10-cr-206 OWW. Although Claimant has not been indicted, counsel argues that her two clients now have divergent interests. Initially, both clients had an innocent owner defense, however, if Ms. Ee were to reveal any Fifth Amendment privileged information, Ms. Grantland's representation of both clients would be compromised. Ms. Grantland contends that California Rule of Professional Conduct 3-310(C) requires that she withdraw since Ms. Ee is unwilling to sign a written consent waiving the conflict. Additionally, although counsel has handled some criminal matters, criminal law is not her area of expertise and she believes Claimant would be better served by an attorney who specializes in that area.

The government argues that there currently is no conflict of interest because Ms. Ee has not been criminally indicted. Moreover, the United States contends that counsel appears to be using the alleged conflict as a basis to support Claimant's request for court appointed counsel.

Rule 3-310(C)(2) of the California Rules of Professional Conduct prohibits counsel from representing clients with adverse interests unless the client gives informed written consent. Rule 3-310 (C)(2) of the California Rules of Professional Conduct; Cal West Nurseries, Inc. v. Superior Court, 129 Cal. App. 4th 1170, 1175 (2005). In the Ninth Circuit, the California Rules of Professional Conduct are interpreted according to California state law. Image Technical Services, Inc. v. Eastman Kodak Co., 820 F.Supp. 1212, 1215 (N.D. Cal. 1993). Under California law, an adverse interest is one that is hostile, opposed, antagonistic, detrimental, or unfavorable to one's own interests. Ames v. State Bar, 8 Cal. 3d 910, 917 (1973). An attorney-client conflict of interest exists when an attorney must contend or assert a position on behalf of one client, that he must oppose on behalf of another client. Flatt v. Superior Court, 9 Cal. 4th 275, 282 fn 2 (1994).

In this case, counsel has argued that an actual conflict exists because Claimant may be criminally prosecuted in the future. The United States contends that there is no actual conflict because no indictment has been filed. At this juncture, it is unclear whether an indictment may be filed which at a minimum creates a potential conflict. The issue of whether this situation is a potential or actual conflict is of no consequence because both forms of conflict requires a written waiver. Rule 3-310 (C)(2) of the California Rules of Professional Conduct. In this instance, Claimant has indicated that she is not willing to sign a consent to continued joint representation. Thus, Ms. Grantland's continued representation of Claimant and her daughter is not appropriate. Moreover, counsel has indicated that given her limited experience in criminal law, she believes counsel with criminal law expertise would better represent Claimant's interest. This Court will not require Ms. Grantland to continue representing Claimant under these circumstances. Accordingly, the Motion to Withdraw as Counsel is GRANTED.

III. The Motion to Appoint Counsel

Claimant requests that she be appointed counsel pursuant to the Civil Asset Forfeiture Reform Act ("CAFRA") which provides that a claimant may be appointed counsel in a judicial forfeiture proceeding if the claimant is financially unable to obtain representation by counsel and the property subject to forfeiture is real property that is being used by the person as a primary residence. 18 U.S.C. § 983(b)(2)(A). Claimant argues that she qualifies under this provision because she has no funds to pay for counsel and the subject property is her primary residence. The government opposes the appointment of counsel on the basis that Claimant has not lived at the subject property for over three years. Moreover, the government alleges Claimant is financially able to pay for counsel as evidenced by the fact that she recently transferred approximately $400,000.00 to accounts in Korea.

Claimant concedes that she has not lived at the residence since March 2008 when she moved to Korea. See, Declaration of Bok Hee Ee dated August 8, 2011 at ΒΆ 3. (Doc. 38 at pg. 3-4). She returned to the United States in March of 2011 and moved to her daughter's house because she did not have any money. Id. Claimant alleges that while she was living in Korea she intended to return to the subject residence. Id. She left her belongings at the house and allowed a friend to stay there in her absence. Id. While she was gone, she kept the subject property as the address listed on all of her bank accounts, tax documents, and drivers license and she set up automatic payments to pay her monthly bills. Id. Claimant alleges that during her absence, her friend stole her identity including taking out credit cards her name and making deposits and withdrawals from her bank account. As a result, she has no money and her credit is ruined. Id. She has rented out the subject property because she did not have a car or ...

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