“Law Firm Can’t Represent Defendant Where Potential Adverse Witness Was Its Client” —

• “The Ninth U.S. Circuit Court of Appeals has affirmed the disqualification of a Bunker Hill law firm from defending a retired physician accused of participation, while practicing medicine in Orange County, in a multi-million dollar COVID-connected fraud scheme, holding that the attorneys’ previous representation of an alleged co-conspirator who might testify for the prosecution justifies the order.”
• “Under Tuesday’s decision in a memorandum opinion, the firm of Brown White & Osborn LLP (‘BWO’) is barred from providing further legal services to Matthew Hoang Ho, now a resident of Alabama and Florida, who is scheduled to go on trial July 23 in the U.S. District Court for the Central District of California. He is charged with submitting fraudulent loan applications for COVID-related relief programs, conspiracy to commit wire fraud, wire fraud, aiding and abetting wire fraud, money laundering, and aiding and abetting money laundering.”
• “For a short time after her indictment, BWO represented Hanna ‘Hang’ Trinh Dinh who pled guilty to conspiracy to commit wire fraud in connection with the alleged billing scam and was sentenced on Feb. 12 to one year and eight months in prison, followed by three years of probation, with seven months to be served in home confinement.”
• “She is the sister of defendant Anthony Hao Dinh, a medical doctor who is described by the U.S. Attorney’s Office for the Central District of California as ‘the second-highest biller in the country to the Health Resources and Services Administration COVID-19 Uninsured Program,’ accused of submitting false claims to the government.”
• “In light of BWO’s representation of Hanna Dinh and others who were purportedly implicated in a scheme to cheat the government, prosecutors contended in the District Court that the law firm must be forced to step aside based on conflicts of interest.”
• “There are no conflicts, Ken White, general counsel of BWO, insisted in response, pointing out that the firm had secured the necessary waivers by its clients. Those waivers, however, did not deter Senior Judge James Selna from ordering on Feb. 26 that BWO be parted from the case.”
• “With a narrowing of the focus to the link between Ho and Dinh, Selna explained: ‘Although BWO obtained waivers regarding potential conflicts from both Ho and H. Dinh, conflicts are often very difficult for even an experienced attorney, let alone his client, to appreciate given the fluidity of a criminal trial.'”
• “He declared that ‘the potential for an actual conflict to develop as the case progresses is serious,’ setting forth that the government might call Hanna Dinh as a witness ‘to testify about her knowledge of Ho’s activities in the conspiracy or at the very least the process the co-conspirators used” in perpetrating their alleged ruse.'”
• “Selna said that ‘[t]his would create an unethical situation where BWO would be faced with the choice of either exploiting its prior, privileged relationship with her or failing to defend Ho zealously for fear of misusing confidential information.'”
• “A Ninth Circuit panel [affirmed]: ‘[T]he district court did not clearly err as a matter of law when it disqualified BWO based on a finding of a ‘serious potential for conflict’ after the government listed Hanna as a witness whom it intends to call at Dr. Ho’s criminal trial. Dr. Ho and Hanna are co-defendants in the same alleged criminal conspiracy; the government alleges that they both worked with Hanna’s brother, Anthony, to submit fraudulent loan applications; and BWO previously represented Hanna concerning the same or substantially similar alleged criminal conduct…The district court did not clearly err when it found, based on these facts, that it is possible that BWO may have knowledge from Hanna that would be helpful to Dr. Ho, but cannot be used without violating BWO’s duty of loyalty and confidentiality to Hanna…'”

“New trial in murder case ordered over counsel’s conflict of interest” —

• “A defendant convicted of first-degree murder has been granted a new trial because his trial counsel labored under an actual conflict of interest.”
• “A jury convicted defendant Nathaniel Brown of first-degree murder on the theory of extreme atrocity or cruelty in connection with the stabbing death of Jordan Baskin. Following his conviction, represented by new counsel, the defendant filed a motion for a new trial, claiming two violations of his right to counsel under Article 12 of the Massachusetts Declaration of Rights.”
• “First, the defendant argued that his trial counsel failed to provide minimally effective representation before and during a police interview in which police acquired incriminating evidence later introduced at his trial.”
• “Second, the defendant claimed that his trial counsel suffered from a conflict of interest in her continued representation of him following the police interview, because filing a motion to suppress the resulting incriminating evidence on the ground of ineffective assistance of counsel would have been contrary to his trial counsel’s own interests.”
• “‘Finding no error of law or abuse of discretion in the motion judge’s conclusion that trial counsel labored under an actual conflict of interest in representing the defendant, we affirm the allowance of a new trial on this ground and do not reach the defendant’s other claimed art. 12 violation,’ Justice Elizabeth N. Dewar wrote for the SJC.”
• “‘In the circumstances of this case, ‘the probity’ of trial counsel’s ‘own conduct’ would be put ‘in serious question’ by the motion to suppress, where, amidst a homicide investigation, trial counsel failed to end the defendant’s police interview even after the defendant made statements to the police that counsel immediately recognized to be falsehoods, and the interview instead went on to yield additional inculpatory evidence,’ the SJC found.”
• “‘Yet trial counsel also had an obvious ‘competing interest’ of her own that ‘materially interfere[d] with [her] independent professional judgment in considering’ whether to file a motion to suppress on the defendant’s behalf: such a motion would inherently call into question her own professional competence.'”
• “‘For this reason, the motion judge correctly found that trial counsel’s own personal interests as a practicing attorney would materially interfere with her independent professional judgment in considering whether to file such a motion to suppress, and that, burdened by this actual conflict, she could not pursue any such motion with the ‘full force and zealousness’ we require of criminal defense counsel,’ Dewar wrote.”
• “‘Such a motion would, moreover, place trial counsel in the inherently ineffectual position of arguing to the court that she herself performed deficiently. … We therefore see no error in the motion judge’s conclusion that ‘no impartial observer could reasonably conclude that’ trial counsel would be ‘able to serve the defendant with undivided loyalty’ in the circumstances of this case,’ she added.”