Franson et al v. City and County of Honolulu et al

Filing 69

ORDER GRANTING DEFENDANT CITY AND COUNTY OF HONOLULU'S 44 MOTION TO DISQUALIFY ATTORNEY MYLES BREINER. Signed by JUDGE DERRICK K. WATSON on 1/25/2017. - Defendant City and County of Honolulu's Motion To Disqual ify Attorney Myles Breiner, together with the joinders therein (see Dkt. Nos. 46 and 51 ), are GRANTED. ** Attorney Myles S. Breiner terminated; Granting 46 Motion for Joinder; Granting 51 Motion for Joinder. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I

CIVIL NO. 16-00096 DKW-KSC

FRANCISCO FRANSON and
JORDON TOPINIO,

ORDER GRANTING DEFENDANT
CITY AND COUNTY OF
HONOLULU’S MOTION TO
DISQUALIFY ATTORNEY MYLES
BREINER

Plaintiffs,
vs.
CITY AND COUNTY OF
HONOLULU; VINCENT MORRE;
NELSON TAMAYORI; and JOSEPH
BECERA,
Defendants.

ORDER GRANTING DEFENDANT CITY AND COUNTY OF HONOLULU’S
MOTION TO DISQUALIFY ATTORNEY MYLES BREINER

INTRODUCTION
Plaintiffs Francisco Franson and Jordon Topinio were assaulted by on-duty
Honolulu Police Department (“HPD”) Officers and claim that the assault, a
post-assault cover-up, and unspecified HPD policies were unlawful. Through their
attorney, Myles Breiner, Esq., Plaintiffs filed civil claims against the three HPD
Officers, the City and County of Honolulu (“City”), and former HPD Chief Louis

Kealoha, for violations of state and federal law. Mr. Breiner currently represents
Kealoha in an unrelated matter.
Following dismissal of the claims against Kealoha with leave to amend – and
in the midst of responding to an Order to Show Cause directed at Mr. Breiner’s
concurrent representation of Kealoha issued by another federal district judge in an
unrelated matter pending in this court – Plaintiffs filed a First Amended Complaint
that omitted all claims against Kealoha. The City now seeks to disqualify Mr.
Breiner from further representation of Plaintiffs in this matter.
Based upon the Court’s consideration of Plaintiffs’ right to counsel of their
choice, the need to maintain ethical standards of professional responsibility, and the
unique circumstances of this case, the City’s Motion to Disqualify is GRANTED.
Mr. Breiner’s concurrent representation of Plaintiffs in the instant matter and
Kealoha in an unrelated matter presents a non-waivable conflict of interest within
the meaning of Hawaii Rule of Professional Responsibility 1.7, disqualifying Mr.
Breiner from further representation of Plaintiffs in this civil action.
BACKGROUND
I.

Plaintiffs’ Original Complaint
On September 5, 2014, on-duty HPD Officer Vincent Morre assaulted,

allegedly without cause, Franson and Topinio in a Honolulu game room in the
presence of HPD Officers Nelson Tamayori and Joseph Becera. On March 6, 2016,
2

Plaintiffs filed suit against the City, the Defendant HPD Officers in their individual
capacities (Complaint ¶¶ 6-8), and then-Chief Kealoha in both his official and
individual capacities (Complaint ¶¶ 9-10, 41). Mr. Breiner signed the Complaint.
Dkt. No. 1 at 15.
Plaintiffs more specifically allege that Morre assaulted them, without
provocation, and that Tamayori and Becera witnessed the assault, but failed or
refused to intervene. Complaint ¶ 19. According to Plaintiffs, Morre, Tamayori,
and Becera agreed to purposely omit the assault from their subsequent reports of the
incident in an attempt to conceal it. Plaintiffs allege that all three HPD Officers
were members of the HPD Crime Reduction Unit (“CRU”), see Complaint ¶ 12, and
aver as follows with respect to the City and Kealoha’s liability:
10.

Defendant Kealoha is responsible for the instruction,
training, and supervision of the Honolulu Police
Department’s officers and/or members.
****

23.

Plaintiffs are informed and believe and do thereupon
allege that the Honolulu Police Department has a custom,
policy, practice, and/or usage of condoning and/or
ratifying the use of excessive force and/or conditions
amounting to severe punishment by Honolulu Police
Department officers, including but not limited to officers
with the Honolulu Police Department Crime Reduction
Unit.
****

3

33.

As the Chief of Police, Defendant Kealoha’s failure to
train, supervise, and/or discipline Honolulu Police
Department members that use excessive force and/or
expose citizens and/or pretrial detainees to conditions
amounting to punishment demonstrates that he personally
implemented, maintained, enforced, and/or allowed the
continued use of excessive force and/or exposure of
citizens and/or pretrial detainees to conditions amounting
to severe punishment, acted with reckless and callous
indifference, and knew of and/or acquiesced to such
unconstitutional conduct.

34.

Defendant Kealoha’s supervision, training,
implementation, maintenance, enforcement,
acquiescence, and/or allowance of the continued operation
of the use of excessive force or the exposure of citizens
and/or pretrial detainees to conditions amounting to severe
punishment amounts to deliberate indifference to the
rights of persons who are victims of excessive police force
and/or suffer conditions amounting to punishment because
the custom, policy, and/or practice is obviously deficient,
likely to cause the violation of citizens’ constitutional
rights, and closely related to Plaintiffs’ injuries.

35.

Plaintiffs are informed and believe and thereupon allege
that by the aforementioned acts and/or omissions
Defendants, without any probable, sufficient, just, or
reasonable cause, subjected Plaintiffs to illegal and
unreasonable searches and seizures and/or denied
Plaintiffs due process of law in violation of rights
guaranteed to them by the Fourth and Fourteenth
Amendments of the United States Constitution and the
Constitution and laws of the State of Hawaii and 42 U.S.C.
§1983, inter alia.
****

4

37.

Plaintiffs are informed and believe and thereupon allege
that Defendants Kealoha and City and County of
Honolulu negligently failed and refused to properly adopt
and/or enforce policies, train, supervise, and/or discipline
the Defendant Officers when they acted outside of the
scope of their employment to improperly and illegally
assault Plaintiffs and expose them to conditions
amounting to severe punishment.

38.

As a direct and proximate cause thereof, Plaintiffs
sustained severe injuries and damages in an amount to be
proved at trial.

39.

Defendants Kealoha and City and County of Honolulu
should have been aware of and taken appropriate action,
including but not limited to train and/or supervise
Defendant Officers and/or other officers with the
Honolulu Police Department Crime Reduction Unit who
have been involved in prior incidents in which they were
accused of using excessive force.

40.

Defendants Kealoha and City and County of Honolulu
failed in supervising, training, hiring and/or failing to
discipline the Defendant Officers because Defendants
Kealoha and City and County of Honolulu knew or should
have known about the necessity and opportunity to
exercise control and to curtail the continued operation and
use of excessive and/or unnecessary use of force and the
exposure of citizens and/or pretrial detainees to conditions
amounting to sever[e] punishment.

41.

Defendant Kealoha acted with malice.

Complaint (Dkt. No. 1).
The Complaint alleged the following causes of action: (1) a Section 1983
claim against the City and Kealoha based upon excessive use of force, seizure, and

5

severe punishment in violation of the Fourth and Fourteenth Amendments, and the
Constitution and laws of the State of Hawaii (Count I); (2) a negligent training
and/or supervision claim against the City and Kealoha (Count II); (3) an assault and
battery claim against Morre (Count III); (4) a negligence claim against Defendant
HPD Officers based upon conduct during the execution of an arrest warrant in the
game room (Count IV); (5) a negligent infliction of emotional distress (“NIED”)
claim against all Defendants (Count V); (6) an intentional infliction of emotional
distress claim (“IIED”) claim against Defendant HPD Officers (Count VI); (7) a
respondeat superior claim against the City based upon the tortious conduct of Morre
occurring within the scope of his employment (Count VII); (8) a civil conspiracy
claim against Defendant HPD Officers (Count VIII); and (9) a claim for punitive
damages (Count IX).
II.

The City’s Motion To Dismiss
On April 19, 2016, the City, through its Corporation Counsel, moved to

dismiss all claims in Plaintiffs’ Complaint alleged against itself and Kealoha, in both
his official and individual capacities. Dkt. No. 7. On April 28, 2016, Kealoha,
also through Corporation Counsel, joined in the City’s Motion to Dismiss. Dkt. No.
13.
The Motion to Dismiss argued, in part, that the Complaint failed to allege that
Kealoha was personally involved in any constitutional violation, that he set in
6

motion any series of acts by others that caused constitutional injury, or that a
constitutionally deficient policy was the moving force behind any harm to Plaintiffs.
See City’s Motion to Dismiss at 20-21. Plaintiffs filed their opposition to the City’s
Motion to Dismiss on June 9, 2016. Dkt. No. 23. Plaintiffs’ opposition
highlighted Kealoha’s individual liability under Section 1983 and the City’s
potential liability for his conduct as follows:
Plaintiffs further contend that the allegations against Chief Louis
Kealoha are sufficient to satisfy the “final policy-making
authority” pleading requirement of § 1983 liability under Monell
and Gillette. The Complaint clearly pleads that the
constitutional tort was committed by the Police Chief. (See
also, Gillette, at 1346. Allegations against the Chief of Police
satisfy this requirement. (See, Complaint ¶¶ 9, 10, 33, 34, 37,
39, and 40). The policy and practice of deputizing the CRU,
and ignore [sic] the hundreds of complaints of violence over the
years is a policy which stops with the Police Chief. He alone
could have changed this.
****
And the § 1983 allegations are plead against the Chief of Police
and the three individual officers are plead [sic] personally.
(See, Complaint ¶ 9, 10, 33 & 34).
Plaintiffs’ Opp. to City Motion to Dismiss at 7, 11 (footnote omitted).
With respect to dismissal of their claims for damages against Kealoha,
Plaintiffs argued that:
the Motion again seeks to avoid punitive damages. Such
punitive damages are clearly available against the individual
Defendants. The Complaint only pleads for punitive damages
7

against “Defendant officers.” (Complaint at p.14). Plaintiffs
submit that whether punitive damages apply to Chief Kealoha
are [sic] a question of fact, which brings us full circle to “the
final policy maker” discussion. (Supra p.7)
. . . The Motion’s final objection is that allegations against Chief
Kealoha are not specific enough. Again, Defendants are
applying a “plausibility” test. Under FRCP 12(b)6, the
Complaint must only name the “final policy maker” is named,
[sic] identify the policy in question -- the continued existence
and supervision (or lack thereof of the “CRU” — so that the
Defendants are afforded enough notice to prepare their defense.
Plaintiffs’ Opp. to City Motion to Dismiss at 12. Plaintiffs’ opposition was signed
by Mr. Breiner and supported by his Declaration. Plaintiffs’ Opp. to City Motion to
Dismiss at 13 (Dkt. No. 23).
The Court held a hearing on the Motion to Dismiss on July 1, 2016. Dkt. No.
28. Mr. Breiner appeared at the hearing on behalf of Plaintiffs. On July 26, 2016,
the Court issued an Order Granting In Part And Denying In Part Defendant City And
County Of Honolulu’s Motion to Dismiss Complaint. Dkt. No. 32 (7/26/2016
Order). The Court concluded that Plaintiffs’ official-capacity claims against
Kealoha duplicated the claims asserted against the City and, accordingly, dismissed
them without leave to amend. 7/26/2016 Order at 23-24. With respect to the
individual-capacity claims against Kealoha, the Court found that the Complaint
alleged no facts supporting Section 1983 liability and dismissed Count I against
Kealoha with leave to amend. 7/26/2016 Order at 17, 24. The Court also

8

dismissed with leave to amend the Section 1983 municipal liability claim against the
City based on Plaintiffs’ allegations that Kealoha, an official with final
policy-making authority, ratified the unconstitutional action of a subordinate.
7/26/2016 Order at 15-16. The Court granted Plaintiffs leave to file a First
Amended Complaint by no later than August 22, 2016.
III.

Plaintiffs’ First Amended Complaint
Plaintiffs filed their First Amended Complaint on August 18, 2016 and, this

time, did not name Kealoha as a defendant in any capacity. Dkt. No. 39. The First
Amended Complaint again alleged Section 1983 municipal liability claims against
the City (Counts I and II), with similar factual averments regarding City policies, but
omitted any reference to Kealoha’s role in the alleged constitutional violations. For
example, Plaintiffs alleged, in part:
43.

Defendant Officers used unnecessary and excessive force
against, seized and/or exposed Plaintiffs to conditions that
amounted to severe punishment. This use of excessive
force is a result of a policy and practice of maintaining the
Crime Reduction Unit (“CRU”), which allows
free-roaming plain-clothed officers to violate individual
rights, roam the city without authorized direction of
assignment or documentation of purpose and method.

44.

The policy of condoning, ratifying, and/or failing to
prevent the excessive and/or unnecessary use of force
and/or exposing citizens and/or pretrial detainees to
conditions that amount to severe punishment by Honolulu
Police Officers is a constitutionally deficient custom and
policy that violated the constitutional rights of persons
9

such as Plaintiffs, and there is a direct causal connection
between the custom, policy, practice, and/or usage and
these constitutional deprivations.
****
52.

Plaintiffs are informed and believe and thereupon allege
that Defendant City and County of Honolulu routinely and
negligently failed to train, supervised, and/or discipline
the Defendant Officers when they acted outside of the
scope of their employment, allowing and even
encouraging Defendant Officers to improperly and
illegally assault Plaintiffs and expose them to conditions
amounting to severe punishment.
****

55.

Defendant City and County of Honolulu’s supervision,
training, and oversight of its officers on this unit CRU was
negligent, if not entirely absent. There is no
accountability for the use of time, direction of the
commitment of manpower, or recording of daily activities.
Work for the CRU does not involve any identifiable goals
at the onset, specific recording of methodology or
problems encountered, progress reporting, and legitimate
target success achievements.
****

69.

Defendant City and County of Honolulu has long been
aware that the supervisors were instructing otherwise
good officers to file false police reports, lie to
investigators and perjure themselves before the courts.
That this has created a policy and/or practice which
exposes citizens and/or pretrial detainees to conditions
amounting to severe punishment amounts to deliberate
indifference to the rights of those persons.
****
10

71.

Defendants City and County of Honolulu should have
been aware and had a duty to take appropriate action
involving all officers with the Honolulu Police
Department who have been involved in incidents where
they are accused of using excessive force.

72.

Defendant City and County of Honolulu deliberately
failed to supervise, train and discipline the Defendant
Officers because Defendant City and County of Honolulu
condones the policy and practice of targeting those who
cannot credibly report misconduct or patronize game
rooms.

73.

Defendant City and County of Honolulu is responsible for
the instruction, training, and supervision of the Honolulu
Police Department’s officers.

First Amended Complaint.
IV.

Mr. Breiner’s Concurrent Representation Of Kealoha And Plaintiffs
On August 27, 2016, the City filed the instant Motion to Disqualify (Dkt. No.

44) based on Mr. Breiner’s concurrent representation of Plaintiffs in the instant
matter and Kealoha in an unrelated matter. Although the record is not entirely clear
on the timing or scope of his representation of Kealoha, there is no dispute for
purposes of the instant Motion that Mr. Breiner currently represents both Plaintiffs
and Kealoha and has since at least May 2016.
In support of its Motion, the City submitted several media interviews from
May through August 2016 in which Mr. Breiner held himself out as Kealoha’s
attorney, commenting on a possible federal investigation and indictment of Kealoha
11

and others. See City Motion to Disqualify, Declaration of Counsel, Exs. A, B, C,
and F (Dkt. No. 44). The City also provided a May 4, 2016 letter from Mr. Breiner
to the Office of the United States Attorney, Southern District of California, with the
subject line “Louis and Katherine Kealoha,” which states in pertinent part:
Please be advised that my office represents Honolulu Police
Department Chief Louis Kealoha and Katherine Kealoha.
Please direct any and all communication and/or correspondence
regarding Chief Kealoha or Ms. Kealoha to my office.
Second Declaration of Counsel, Ex. L (Dkt. No. 56).
Kealoha describes his attorney-client relationship with Mr. Breiner as
follows:
4.

I have agreed to have Mr. Breiner represent me and my
wife on a limited basis for certain matters involving a
supposed federal grand jury investigation, about which
much information has been reported by the press as leaks
from the grand jury, but which the federal government
will not confirm or deny.

5.

I have not spoken to Mr. Breiner about any matter other
than the limited issues pertaining [to] what I or my wife
may know about the federal grand jury as reported by the
press or by others. Except as noted below, those matters
do not in any way involve departmental matters or
procedures, any pending lawsuits filed by Mr. Breiner’s
office, any other pending civil matters. The only
exception is a discussion with Mr. Breiner about the
nature of the civil cases brought against HPD and myself
as Chief, and the relief sought, and whether I would waive
any conflict that Mr. Breiner may have as the attorney for
the civil claimants and as my attorney for the limited
purposes noted above. I have signed a written waiver.
12

6.

I have not communicated with Mr. Breiner about any
departmental matters, or any other matter except the
limited issues relating to the federal grand jury. It was
made clear to Mr. Breiner, and he agreed, that we would
not discuss any matter other than the limited matters for
which he has agreed to represent us, knowing that he
represents parties in other matters, both criminal and civil,
which are adverse to HPD, the City and/or myself as
Chief.

9/19/16 Kealoha Decl. (Dkt. No. 57-2).
In response to the City’s Motion, on October 12, 2016, Plaintiffs submitted a
Declaration of Attorney Myles Breiner setting forth the following chronology of his
representation of both Kealoha, and his wife, Katherine Kealoha:
4.

Deputy Prosecuting Attorney [Katherine] Kealoha
approached me about representing her and her husband, in
the event that there is an indictment in the federal Grand
Jury. In the midst of these negotiations, I contacted the
State Bar to discuss the potential conflicts. I informed
Mrs. Kealoha of my two cases where the Chief of Police
was a named Defendant. The Kealohas had previously
retained Attorney Kevin Sumida to represent them in
Kealoha vs. Totto, Civ. No. 16-1-001166 (1st Cir. HI
2016). DPA Kealoha and I discussed using Kevin
Sumida in the event there was anything I could not cover
with Chief Kealoha.

5.

I consulted the Hawaii State Bar to see if I could represent
the Kealohas. In a conversation with Staff Attorney
Bruce Kim at the Office of Disciplinary Counsel, Bar
Association for the State of Hawaii, (“ODC”) we
discussed the potential for conflict, simply because Chief
Louis Kealoha was a named Defendant in the two PI
cases. Attorney Kim referred me to HRPC Rule 1.7 and I
13

asked questions about the application of the Rule to the
relationship between my PI cases. We concluded that the
clients should be consulted, and if they so chose to waive
this conflict in an informed manner, they could do so in
accordance with Hawaii Rules of Professional Conduct
(“HRPC”) Rule 1.7.
6.

[The City’s] motion makes numerous references that I
denied representing the Kealohas. This is complete
nonsense. In fact when the question first appeared to be
an issue, Attorney Breiner filed a “Notice of Appearance”
in the Kealoha’s matter, September 20, 2016.

7.

I took the prescribed proactive efforts to consult with each
of his clients, and secured their informed consent in
writing before agreeing to represent the Kealohas.
Before August 7, 2016 when Judge Gillmor held the Order
to Show Cause hearing, I had on file with the Court
“Memorandum in Response to OSC” Franson, [ECF No.
43], containing written waivers for Franson, Topinio, Mr.
and Mrs. Ka‘ahu and Chief & DPA Kealoha.

Declaration of Attorney Myles Breiner (“10/12/16 Breiner Decl.”) (Dkt. No. 57-1).1
In response to an August 1, 2016 Order to Show Cause issued by Judge
Gillmor in Ka‘ahu v. Randall, Civ. No. 14-00266 – another case pending in this
district in which Mr. Breiner represents plaintiffs in a civil rights action against the
City, HPD, and Kealoha – Mr. Breiner submitted a Memorandum of Law Re:

1

Although the Declaration indicates that it was executed on September 1, 2016, certain events set
forth in the Declaration post-date September 1, 2016. See 10/12/16 Breiner Decl. ¶ 6. The
Declaration was filed with the Court on October 12, 2016.

14

Professional Rules of Conduct Rule 1.7 and Attorney Myles S. Breiner’s
Declaration (Dkt. No. 43).2 The August 2016 Memorandum states that:
Some time in May of 2016, Attorney Breiner began talks with
. . . Chief Kealoha, in the event that there are indictments filed
against them. Those indictments have not been secured as of
this date. There has, however, been some initial pre-indictment
activity, and several press statements where Attorney Breiner
spoke on behalf of [Chief and Mrs. Kealoha].
****
Attorney Breiner plans to represent [the Kealohas] only if
criminal charges are brought by a federal prosecutor, and that
matter would have nothing to do with []either Franson/Topinio’s
nor [redacted] claims. And no position Mr. Franson, Mr.
Topinio or the [redacted] could imaginably have [] overlap[s]
with the Chief Kealoha’s defense. The anticipated claims being
investigated against [the Kealohas] are totally unrelated to the
policies being challenged in Franson and Topinio.
****
The agreement between [the Kealohas] and Attorney Breiner is
that Attorney Breiner would represent [them] in the event that
indictments are filed in the Federal District Court, District of
Hawaii. To date, no such indictments have been handed down.
Memorandum of Law at 2, 7-8 (Dkt. No. 43). In his Declaration, attached to the
Memorandum responding to the Order to Show Cause, Mr. Breiner explains that he
obtained waivers from his clients as follows:

2

Mr. Breiner filed his Memorandum of Law Re: Professional Rules of Conduct Rule 1.7 in both
Ka‘ahu and the instant case.

15

7.

My office issued a letter pursuant to the Hawaii Rules of
Professional Conduct, Rule 1.7, advising Jordon Topinio
and Francisco Franson of the potential for a conflict. A
true and correct copy of the letter that was sent to
Francisco Franson and Jordan Topinio is attached as
“Exhibit C”.

8.

After being fully informed of the option to find another
attorney and provided with the written option to do so,
both Francisco Franson and Jordon Topinio signed the
“Waiver of Conflict to Continue Representation.” A true
and correct copy is attached hereto as “Exhibit D.”

Breiner Decl. (Dkt. No. 43).3
The letters sent to Franson and Topinio state that because Mr. Breiner is
currently representing the Kealohas, a potential conflict of interest arises under
HRPC 1.7. For example, the July 19, 2016 letter to Franson states, in part:
I do not believe that a conflict of interest presently exists as your
matters are separate and independent from the matters in which I
am representing the [Kealohas].
I believe I can continue to represent your legal interests without
adversely affecting or compromising the attorney-client
relationship. Rest assured, your agreement to waive any
potential conflict does not allow me to disclose any information
regarding your case to the Kealohas and vice-versa.
If you believe that this potential conflict of interest will not
adversely impact my ability to represent you and desire
continued representation, please execute the enclosed Waiver of
Conflict to Continue Representation. However, if you believe

3

The conflict letter sent to Franson is dated July 19, 2016 and the letter sent to Topinio is dated
June 7, 2016. See Breiner Decl. Exs. C through E (Dkt. No. 43).

16

that the potential conflict of interest will affect my ability to
represent you or you wish to seek new counsel if my law office
continues to represent the [Kealohas], please execute the
Non-Waiver of Conflict to Discontinue Representation. Please
return the completed Waiver form to my office.
Breiner Decl. Ex. D (Dkt. No. 43). The waivers executed by Plaintiffs state:
I, [Francisco Franson/Jordon Topinio], hereby acknowledge that
I have carefully read and understand the foregoing letter. I am
informed that The Law Office of Myles S. Breiner is currently
representing my interests and those of [the Kealohas].
I further understand and am aware that certain conflicts of
interests may exist by The Law Office of Myles S. Breiner
representing both [the Kealohas] and myself.
I knowingly and freely waive any such conflict as provided for
by HRPC § 1.7, and consent to such concurrent representation by
The Law Office of Myles S. Breiner.
Breiner Decl. Exs. D and E (Dkt. No. 43). Kealoha also executed a waiver
consenting to Mr. Breiner’s continued representation, which provides:
I have carefully read and understand the foregoing letter.[4] I am
informed that The Law Office of Myles S. Breiner is currently
representing my interests and those of numerous clients involved
in civil and criminal cases that may inherently possess a conflict
of interest.
I knowingly and freely waive any such conflict as provided for
by HRPC § 1.7, and consent to such concurrent representation
by The Law Office of Myles S. Breiner.

4

The letter referenced in the Kealoha waiver is neither attached to the waiver itself nor the Breiner
Declaration. See Dkt. No. 43.

17

Breiner Decl. Ex. C (Dkt. No. 43).
DISCUSSION
I.

Legal Standard
The City moves to disqualify Mr. Breiner pursuant to Hawai‘i Rule of

Professional Conduct (“HRPC”) 1.7, alleging a non-waivable conflict of interest.5
The party seeking disqualification “carries a heavy burden and
must satisfy a high standard of proof because of the potential for
abuse.” In re Marvel, 251 B.R. 869, 871 (N.D. Cal. 2000). A
motion for disqualification “should not be decided on the basis
of general and conclusory allegations.” Chuck v. St. Paul Fire
& Marine Ins. Co., 606 P.2d 1320, 1325 (Haw. 1980). A
court’s factual findings for disqualification must be “supported
by substantial evidence.” Visa U.S.A. v. First Data Corp., 241
F. Supp. 2d 1100, 1104 (N.D. Cal. 2003).
White v. Time Warner Cable, 2013 WL 772848, at *1 (D. Haw. Feb. 27, 2013). “In
deciding whether to disqualify an attorney, a district court must balance a client’s
right freely to choose his counsel against the need to maintain the highest standards
of the profession.” GSI Commerce Solutions, Inc. v. Babycenter L.L.C., 618 F.3d
204, 209 (2d Cir. 2010) (citation omitted).

5

The City has standing to raise the issue, as does the Court. See HRPC 1.7 cmt. 15 (“Resolving
questions of conflict of interest is primarily the responsibility of the lawyer undertaking the
representation. In litigation, a court may raise the question when there is reason to infer that the
lawyer has neglected the responsibility. . .Where the conflict is such that it clearly calls into
question the fair or efficient administration of justice, opposing counsel may properly raise the
question.”). Plaintiffs acknowledge the Court’s authority to address the issue sua sponte. See
Breiner Decl. ¶ 15 (Dkt. No. 43) (“Of course the Court is free to raise the issue in an abundance of
caution; however, it is not a matter that has caused concern for [any] of my clients as evidenced by
their signed Waivers.”).

18

Pursuant to Local Rule (“LR”) 83.3, “[e]very member of the bar of this court
and any attorney permitted to practice in this court pursuant to LR 83.1(d) or (e)
shall be governed by and shall observe the standards of professional and ethical
conduct required of members of the Hawaii State Bar.” Attorneys who practice in
the Hawaii state courts must comply with the Hawaii Rules of Professional Conduct.
See Rules of the Supreme Court of the State of Hawaii, Rule 2.2; see also United
States v. Gaitan-Ayala, 2008 WL 1752678, at *3 (D. Haw. Apr. 17, 2008) (“The
Local Rules for the District of Hawaii require attorneys practicing in the district to
comply with the Hawaii Rules of Professional Conduct.”) (citing LR 83.3).
The governing rule, HRPC 1.7,6 provides that:
(a)

Except as provided in paragraph (b), a lawyer shall not
represent a client if the representation involves a
concurrent conflict of interest. A concurrent conflict of
interest exists if:
(1)

the representation of one client will be directly
adverse to another client; or

(2)

there is a significant risk that the representation of
one or more clients will be materially limited by the
lawyer’s responsibilities to another client, a former

6

Although Plaintiffs’ opposition relies upon HRPC 1.9, which governs conflicts of interest
involving a former client, the instant dispute involves a concurrent conflict. Because Mr. Breiner
presently represents both Kealoha and Plaintiffs, this matter falls squarely within the scope of
HRPC 1.7. Indeed, after Mr. Breiner was advised of this governing rule in May 2016 by the
Office of Disciplinary Counsel, he advised his current clients of the potential conflict and sought
waivers of conflict pursuant to HRPC 1.7. See Breiner Decl. ¶¶ 4-9 (Dkt. No. 43).

19

client, or a third person, or by a personal interest of
the lawyer.
(b)

Notwithstanding the existence of a concurrent conflict of
interest under paragraph (a), a lawyer may represent a
client if:
(1)

(2)

the representation is not prohibited by law;

(3)

the representation does not involve the assertion of
a claim by one client against another client
represented by the lawyer in the same litigation or
other proceeding before a tribunal; and

(4)

II.

the lawyer reasonably believes that the lawyer will
be able to provide competent and diligent
representation to each affected client;

each affected client gives consent after
consultation, confirmed in writing.

Analysis
Based upon its review of the record and mindful of the gravity of these

proceedings, the Court finds that Mr. Breiner’s concurrent representation of
Plaintiffs in the instant matter and Kealoha in an unrelated matter presents a
non-waivable conflict of interest. Moreover, even assuming the conflict could be
waived, the Court has serious doubts, based on the evidence presented, that each
affected client gave valid consent after consultation, as required by the rules.

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A.

A Concurrent Conflict Exists

The Court first identifies the basis of the concurrent conflict. Under HRPC
1.7(a), a concurrent conflict of interest exists if “(1) the representation of one client
will be directly adverse to another client; or (2) there is a significant risk that the
representation of one or more clients will be materially limited by the lawyer’s
responsibilities to another client.”
Mr. Breiner filed the Complaint on behalf of Plaintiffs on March 6, 2016,
alleging claims against Kealoha in his individual and official capacities, and seeking
punitive damages. The City moved to dismiss the claims against Kealoha on April
19, 2016. By at least May 4, 2016, the date he sent a letter to the Office of the
United States Attorney, Mr. Breiner held himself out as Kealoha’s attorney. See
Second Declaration of Counsel, Ex. L (Dkt. No. 56) (“Please be advised that my
office represents Honolulu Police Department Chief Louis Kealoha and Katherine
Kealoha. Please direct any and all communication and/or correspondence
regarding Chief Kealoha or Ms. Kealoha to my office.”). A concurrent conflict
existed when Mr. Breiner undertook his representation of Kealoha while
simultaneously representing Plaintiffs.7

7

Indeed, at this point in May 2016, Mr. Breiner himself acknowledged at least a potential conflict,
reaching out to the ODC for advice. See 10/12/16 Breiner Decl. ¶ 5 (Dkt. No. 57-1).

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Plaintiffs and Kealoha were “directly adverse” under HRPC 1.7(a)(1).
Plaintiffs and Kealoha were opposing parties in the same litigation until the claims
against Kealoha were dismissed with leave to amend by the Court’s July 26, 2016
Order, and the First Amended Complaint was filed omitting Kealoha as a defendant
on August 18, 2016. See HRPC 1.7 cmt. 6 (“Thus, absent consent, a lawyer may
not act as an advocate in one matter against a person the lawyer represents in some
other matter, even when the matters are wholly unrelated. . . [A] directly adverse
conflict may arise when a lawyer is required to cross-examine a client who appears
as a witness in a lawsuit involving another client, as when the testimony will be
damaging to the client who is represented in the lawsuit.”).
In fact, the conflict remains, notwithstanding Kealoha’s dismissal.
Commentary to HRPC 1.7(a)(2) succinctly identifies the problem:
Even where there is no direct adversity of interest, a conflict of
interest exists if there is a significant risk that a lawyer’s ability
to consider, recommend, or carry out an appropriate course of
action for the client will be materially limited as a result of the
lawyer’s other responsibilities or interests. For example, a
lawyer asked to represent several individuals seeking to form a
joint venture is likely to be materially limited in the lawyer’s
ability to recommend or advocate all possible positions that each
might take because of the lawyer’s duty of loyalty to the others.
The conflict in effect forecloses alternatives that would
otherwise be available to the client. The mere possibility of
subsequent harm does not itself require disclosure and consent.
The critical questions are the likelihood that a difference in
interests will arise and, if it does, whether it will materially
interfere with the lawyer’s independent professional judgment in
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considering alternatives or foreclose courses of action that
reasonably should be pursued on behalf of the client.
HRPC 1.7 cmt. 8. Such concerns are implicated here. That is because, as
discussed more fully below, Plaintiffs’ counsel has already reversed course, first
alleging not only direct claims against Kealoha, but those based on intentionality and
malice, and, shortly after having the propriety of his representation questioned by
Judge Gillmor, eliminating all claims, allegations and mere mention of Kealoha in
the currently operative pleading. Accordingly, there is not only a significant risk
that Mr. Breiner’s ability to consider, recommend, or carry out an appropriate course
of action for Plaintiffs might be materially limited as a result of his duty of loyalty to
Kealoha. It appears that potential risk has become reality.
In light of the concurrent conflict of interest, the Court turns to whether Mr.
Breiner’s conflict was waivable and whether effective consent was obtained.
B.

The Conflict Is Not Waivable By Consent

HRPC 1.7(b) provides that, notwithstanding the existence of a concurrent
conflict of interest, a lawyer may represent a client if:
(1)

the lawyer reasonably believes that the lawyer will be
able to provide competent and diligent representation to
each affected client

(2)

the representation is not prohibited by law;

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(3)

the representation does not involve the assertion of a
claim by one client against another client represented by
the lawyer in the same litigation or other proceeding
before a tribunal; and

(4)

each affected client gives consent after consultation,
confirmed in writing.

See also HRPC 1.7 cmt. 14 (“[A]s indicated in paragraph (b), some conflicts make
representation impossible, regardless of a client’s willingness to consent. In such
situations, the conflict cannot reasonably be consented to because the lawyer
involved cannot reasonably ask the client for consent and cannot provide
independent, objective representation even if the client were to consent.”).
“The question of whether a perceived conflict of interest can reasonably be
consented to is typically determined by considering whether the interests of the
clients will be adequately protected if the clients are permitted to give their consent,
after consultation, to representation burdened by a conflict of interest.” HRPC 1.7
cmt. 15. Based on the record presented to the Court, (1) it is not reasonable to
believe that Mr. Breiner can provide competent and diligent representation to both
Plaintiffs and Kealoha, and (2) it is not clear that each affected client gave valid
consent after consultation, confirmed in writing, as these terms are defined in the
HRPC.

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1.

Whether It Is Reasonable To Believe That Mr. Breiner Can
Provide Competent And Diligent Representation To Each
Affected Client

The Court begins with the first prong of HRPC 1.7(b)(1) and concludes that it
is not reasonable for Mr. Breiner to believe that he could adequately comply with his
professional responsibilities to each affected client based on the particular facts and
circumstances of this case.
“Under paragraph (b)(1), the representation is prohibited if in the
circumstances the lawyer cannot reasonably conclude that the lawyer will be able to
provide competent and diligent representation.” HRPC 1.7 cmt. 15.8 Here, it is
not reasonable to conclude that Mr. Breiner could provide such representation to
Plaintiffs and Kealoha, upon consideration of their divergent interests in the two
matters and his competing duties of loyalty to each. Notably, Mr. Breiner faces an
ethical impasse – he is forced to decide, among other things, whether to make
arguments that impugn the credibility and character of Kealoha, whether to assert
theories of liability that directly implicate Kealoha, and whether to seek damages,
including punitive damages, effectively from his own client, all of which Mr.
Breiner once did when the Complaint in this case was filed.

8

“Competent representation requires the legal knowledge, skill, thoroughness, and preparation
reasonably necessary for the representation.” HRPC 1.1. Under Rule 1.3, “[a] lawyer shall act
with reasonable diligence and promptness in representing a client.” HRPC 1.3.

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The City argues that Mr. Breiner’s divided duty of loyalty to his clients is
perhaps best demonstrated by his presentment of arguments on behalf of Plaintiffs
that were adverse to Kealoha’s interests, but which Mr. Breiner subsequently
abandoned after Judge Gillmor issued the Order to Show Cause on August 1, 2016.
For example, Plaintiffs’ original claims against Kealoha included Section 1983 and
negligent supervision claims, allegations of “malice,” and a request for punitive
damages:
10.

Defendant Kealoha is responsible for the instruction,
training, and supervision of the Honolulu Police
Department’s officers and/or members.
****

33.

As the Chief of Police, Defendant Kealoha’s failure to
train, supervise, and/or discipline Honolulu Police
Department members that use excessive force and/or
expose citizens and/or pretrial detainees to conditions
amounting to punishment demonstrates that he
personally implemented, maintained, enforced, and/or
allowed the continued use of excessive force and/or
exposure of citizens and/or pretrial detainees to conditions
amounting to severe punishment, acted with reckless and
callous indifference, and knew of and/or acquiesced to
such unconstitutional conduct.
****

41.

Defendant Kealoha acted with malice.

Complaint (Dkt. No. 1) (emphasis added). Similarly, in Plaintiffs’ June 9, 2016
opposition to the City’s Motion to Dismiss – filed with the Court when Mr. Breiner
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concurrently represented Plaintiffs and Kealoha – Mr. Breiner described the
allegations against Chief Kealoha this way:
The Complaint clearly pleads that the constitutional tort was
committed by the Police Chief. (See also, Gillette, at
1346[)]. . . . The policy and practice of deputizing the CRU,
and ignore (sic) the hundreds of complaints of violence over the
years is a policy which stops with the Police Chief. He alone
could have changed this.
Plaintiffs’ Opp. to City Motion to Dismiss at 7, 11 (footnote omitted).
These allegations and others are absent from Plaintiffs’ First Amended
Complaint filed on August 18, 2016, seventeen days after Judge Gillmor questioned
the propriety of Mr. Breiner’s concurrent conflict through her Order to Show Cause
in Ka‘ahu. The First Amended Complaint omitted assertions that, as the Chief of
Police, Kealoha was the “final policy-maker” who ratified the unconstitutional
conduct of subordinates, and was the only one with the authority to reign in the CRU
officers involved in prior incidents of unconstitutional conduct. The First
Amended Complaint also removed allegations of recklessness, callous indifference,
and malice by Kealoha. In fact, there are no references to Kealoha at all in the First
Amended Complaint.
It is difficult, if not impossible, to determine whether the claims against
Kealoha that were abandoned upon the filing of the First Amended Complaint were
worth pursuing, were supported by the facts, were omitted for strategic reasons, or,

27

as argued by the City, were omitted because of Mr. Breiner’s divided loyalty. What
is clear is that this presents a situation in which clients “reasonably may fear that the
lawyer will pursue [their] case less effectively out of deference to the other client,
i.e., that the representation may be materially limited by the lawyer’s interest in
retaining the current client.” HRPC 1.7 cmt. 6. The particular course of this
litigation raises serious questions as to whether Mr. Breiner’s conflict of interest not
only could materially interfere with his independent professional judgment in
considering alternative courses of action, but already has. See HRPC 1.7 cmt. 8.
The potential also remains that Kealoha could be called as a witness in the
instant case, and that his institutional knowledge of HPD’s policies and procedures –
including confidential information relating to his management of HPD, his role with
respect to the oversight of CRU units, or matters relevant to the federal grand jury
investigation – will further complicate Mr. Breiner’s duties to all affected clients.
See, e.g., United States v. Gaitan-Ayala, 2008 WL 1752678, at *5 (D. Haw. Apr. 17,
2008) (“Based on his ethical duties to Ciufo, Breiner may severely limit or restrict
the scope of his cross-examination, or may refrain from pursuing defense strategies
or tactics otherwise available to non-conflicted counsel. These concerns are further
amplified by the fact that Breiner’s continuing duty of confidentiality prevents the
disclosure of not only confidential communications, but also ‘all information
relating to the representation, whatever its source.’ HRPC 1.6(a); id. cmt. ¶ 5.
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Under these circumstances, a ‘disinterested’ attorney would not conclude that
Gaitan-Ayala should agree to Breiner’s representation. HRPC 1.7 cmt. ¶ 5.”). For
these additional reasons, it is not reasonable for Mr. Breiner to believe that he would
be able to provide competent and diligent representation to all concerned under the
circumstances presented here.
Mr. Breiner’s ability to consider, recommend, or carry out an appropriate
course of action for Plaintiffs is materially limited by his duty of loyalty to Kealoha.
Where, as here, “a disinterested lawyer would conclude that the client should not
agree to the representation under the circumstances, the lawyer involved cannot
properly ask for such agreement or provide representation on the basis of the client’s
consent.” HRPC 1.7 cmt. 15. Accordingly, on these facts, Mr. Breiner’s request
for a client conflict waiver violates HRPC 1.7.
2.

Whether Each Affected Client Gave Consent After
Consultation, Confirmed In Writing

Even assuming that the conditions of HRPC 1.7(b)(1) were met, it is not
evident that Mr. Breiner’s client waivers were obtained after appropriate
consultation with each affected client, as required by HRPC 1.7(b)(4).
As a preliminary matter, the timeline in which consent was obtained, as
described by Mr. Breiner, does not add up. Although Mr. Breiner states that he
took “proactive efforts to consult with each of his clients, and secure their informed

29

consent in writing before agreeing to represent the Kealohas,” 10/12/16 Breiner
Decl. ¶ 7, neither Plaintiff consented prior to May 4, 2016, when Mr. Breiner
informed the Office of the United States Attorney that he represented the Kealohas.
In fact, Mr. Breiner did not even seek consent in writing until June 7, 2016 (Topinio)
and July 19, 2016 (Franson), respectively. See Breiner Decl. Exs. D and E (Dkt.
No. 43). Topinio’s waiver is dated June 14, 2016 and Franson’s is dated July 22,
2016. Id.
Further, under the rules, “[v]alid client consent requires that each affected
client be aware of the relevant circumstances and of the material and reasonably
foreseeable ways that the conflict could have adverse effects on the interests of that
client.” HRPC 1.7 cmt. 18. Disclosure “must include the implications of the
common representation, including possible effects on loyalty, confidentiality, and
the client-lawyer privilege and the advantages and risks involved.” HRPC 1.7 cmt.
18. More generally, under HRPC 1.0(c), “consult” or “consultation” “denotes
communication of information reasonably sufficient to permit the client to
appreciate the significance of the matter in question.” The commentary to the rule
provides additional guidance:
The lawyer must make reasonable efforts to ensure that the client
or other person possesses information reasonably adequate to
make an informed decision. Ordinarily, this will require
communication that includes a disclosure of the facts and
circumstances giving rise to the situation, any explanation
30

reasonably necessary to inform the client or other person of the
material advantages and disadvantages of the proposed course of
conduct, and a discussion of the client’s or other person’s options
and alternatives. . . . A lawyer need not inform a client or other
person of facts or implications already known to the client or
other person; nevertheless, a lawyer who does not personally
inform the client or other person assumes the risk that the client
or other person is inadequately informed as to all relevant factors
and the consent may therefore be invalid.
HRPC 1.0 cmt. 2.
Mr. Breiner’s disclosure letters do not even approximate these requirements.
The letters conclusorily state: “I do not believe that a conflict of interest presently
exists as your matters are separate and independent from the matters in which I am
representing the [Kealohas]. I believe I can continue to represent your legal
interests without adversely affecting or compromising the attorney-client
relationship.” Breiner Decl. Ex. D (Dkt. No. 43). There is no discussion of the
potential adverse effects on the client, no material discussion of confidentiality or
the attorney-client privilege, and no discussion of the risks of continuing with his
representation. As a result, whatever consent was provided was not meaningful or
informed within the requirements of HRPC 1.7(b)(4).
C.

Mr. Breiner Is Disqualified From Representing Plaintiffs

The Court is mindful of the severe nature of disqualification. See Reading
Int’l, Inc. v. Malulani Grp., Ltd., 814 F.3d 1046, 1053 (9th Cir. 2016) (Noting the
“drastic nature of disqualification, . . .[t]his court has warned that a ‘motion to

31

disqualify a law firm can be a powerful litigation tactic to deny an opposing party’s
counsel of choice.’”) (quoting In re Cty. of L.A., 223 F.3d 990, 995 (9th Cir. 2000));
see also Optyl Eyewear Fashion Int’l Corp. v. Style Cos., 760 F.2d 1045, 1050 (9th
Cir. 1985) (motions to disqualify are “subjected to particularly strict judicial
scrutiny”).
Nonetheless, the Court’s “paramount concern must be to preserve public trust
in the scrupulous administration of justice and the integrity of the bar.” State
Comp. Ins. Fund v. Drobot, 2016 WL 3524330, at *5 (C.D. Cal. June 24, 2016)
(internal citation and quotation marks omitted). The Court has a responsibility to
ensure that the matters before it “are conducted within the ethical standards of the
profession and that legal proceedings appear fair to all who observe them.” United
States v. Gaitan-Ayala, 2008 WL 1752678, at *5 (D. Haw. Apr. 17, 2008) (quoting
Wheat v. United States, 486 U.S. 153, 160 (1988)); see also United States v.
Pflueger, 2011 WL 6140898, at *5 (D. Haw. Dec. 8, 2011) (“Nevertheless, even in
cases where a party waives an actual or potential conflict, district courts have
‘substantial latitude in refusing waivers of conflicts of interest’ in favor of
disqualification in cases ‘where a potential for conflict exists which may or may not
burgeon into an actual conflict as the trial progresses.’”) (quoting Wheat, 486 U.S. at
163).

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For the reasons set forth above, Mr. Breiner’s ability to represent Plaintiffs is
materially limited as a result of his duty of loyalty to Kealoha. Mr. Breiner’s
divided loyalties present irreconcilable conflicts, and threaten a quagmire of
additional conflicts, that prevent him from reasonably believing he could provide
competent and diligent representation to each client under the particular
circumstances of this case and prohibit him from, in effect, seeking client permission
to continue. Accordingly, despite the drastic nature of disqualification, the Court
finds that HRPC 1.7 requires the disqualification of Mr. Breiner from further
involvement in this case.
CONCLUSION
For the foregoing reasons, Defendant City and County of Honolulu’s Motion
To Disqualify Attorney Myles Breiner, together with the joinders therein (see Dkt.
Nos. 46 and 51), are GRANTED.
IT IS SO ORDERED.
DATED: January 25, 2017 at Honolulu, Hawai‘i.

Franson, et al. v City & County of Honolulu et al., Civ. No. 16-00096 DKW-KSC; ORDER
GRANTING DEFENDANT CITY AND COUNTY OF HONOLULU’S MOTION TO
DISQUALIFYATTORNEY MYLES BREINER

33