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Ninth Circuit:
Law Firm Can’t Represent Defendant Where Potential Adverse Witness Was Its Client
By a MetNews Staff Writer
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.
District Court Proceedings
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.”
Ninth Circuit Decision
A Ninth Circuit panel—comprised of Ninth Circuit Judges Bridget Shelton Bade and Milan D. Smith Jr., joined by District Court Judge Sidney A. Fitzwater of the Northern District of Texas, sitting by designation—said, in affirming:
“[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 panel continued:
“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….”
Wednesday’s decision comes in Ho v. United States District Court for the Central District of California, 24-1883.
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