US Motion For Inquiry Into Conflicts of Interest

Case 1:21-cr-00142-LEK Document 194 Filed 02/14/23 Page 1 of 25 PageID.
1814
MERRICK GARLAND
Attorney General
RANDY S. GROSSMAN
United States Attorney
MICHAEL G. WHEAT, CBN 118598
JOSEPH J.M. ORABONA, CBN 223317
JANAKI G. CHOPRA, CBN 272246
COLIN M. MCDONALD, CBN 286561
ANDREW Y. CHIANG, NYBN 4765012
Special Attorneys of the United States
880 Front Street, Room 6293
San Diego, CA 92101
619-546-8437/7951/8817/9144/8756
Michael.Wheat@usdoj.gov
Attorneys for the United States of America
UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
CR No. 21-142-LEK
UNITED STATES OF AMERICA,
UNITED STATES’ MOTION FOR
Plaintiff, JUDICIAL INQUIRY INTO
v. CONFLICTS OF INTEREST WITH
RESPECT TO ATTORNEY
DONNA YUK LAN LEONG (1), THOMAS M. OTAKE
MAX JOHN SWORD (2),
ROY KEIJI AMEMIYA, JR. (3),
Defendants.
INTRODUCTION
The prosecution of Donna Leong is on a collision course with conflicts of interest
involving her attorney, Thomas Otake. This is because Otake appears to be
professionally and financially enmeshed with a significant government witness, Loretta
Sheehan. In fact, they are partners in the same law firm: Davis Levin Livingston.
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Case 1:21-cr-00142-LEK Document 194 Filed 02/14/23 Page 2 of 25 PageID.1815
The looming conflict ought to give the Court pause. Sheehan was the lone
dissenter in the Honolulu Police Commission’s vote that delivered the $250,000 payout
to Louis Kealoha—the nucleus of this case. She has harshly criticized that decision as
well as the secretive and irregular dealings that preceded it. Her efforts even received
public acclaim from her law firm for raising questions about the propriety of the money
transfer. Although her testimony is primed to cut against Leong, the task of discrediting
Sheehan will fall on Otake—Sheehan’s partner from the same law firm.
This unnerving prospect raises questions about whether a law firm can straddle
both sides of not just a public controversy but a criminal prosecution. More troubling is
whether Otake’s loyalty to Leong might be watered down because his professional
duties would pit him against both his law partner and the public stance taken by his law
firm. As if that were not enough, Otake and Sheehan also shared private conversations
about the Commission’s deliberations. That makes Otake a potential witness in a case
where he is supposed to be an advocate. Worst of all, Sheehan believes the attorneys at
her law firm acted as her legal counsel in regard to Police Commission matters. If she
is right, Otake’s ability to represent Leong may be compromised beyond redress.
These entanglements jeopardize the integrity of the proceedings; needlessly so.
Leong has long been represented by Lynn Panagakos, who has done most if not all of
Leong’s legal work in contrast with Otake’s more recent appearance. It is therefore
incumbent on this Court to convene a hearing to: (1) make findings about the severity
of conflicts of interest; (2) ascertain whether these conflicts can be waived by Leong;
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and (3) only if they can be waived, obtain the waivers on the record.1
II
BACKGROUND
Davis Levin Livingston maintains a public website that features its partners and
associates joined in unison behind the firm’s mission. Prominently displayed in the
group photo are Sheehan (center) and Otake (third from left). If not for the presence of
a third law partner, they would have stood shoulder-to-shoulder.
1
The United States first brought its ethical concerns to Otake back in May 2022. We did
not hear back. Later in October, we again called these concerns to Otake’s attention by
providing him with a preliminary draft of this motion and requesting his consideration.
After multiple follow-up meetings with Otake in person, by phone, and by video
conference, in which our concerns were voiced and discussed, he notified us in an email
on December 9, 2022, that he does not agree there are conflicts that warrant his withdrawal
in any respect and any conflicts are waivable. Nonetheless, he agreed to not cross examine
Sheehan, in an apparent acknowledgment of the problematic nature of his representation.
We then requested a copy of an “ethics opinion” concerning these issues that Otake said
was drafted by James Kawachika. Eight weeks later, we have not received this opinion
from Otake. These circumstances prompted the United States to file this motion.
3
But this public display of firm unity is not compatible with Otake’s defense of
Leong. For Otake to fulfill his obligations to her, he will have to confront, and attack,
Sheehan in court. This much is clear, because for years Sheehan has been an outspoken
critic of the Commission’s decision to give $250,000 in taxpayer money to a police
chief being investigated for, and eventually convicted of, terrible abuses of power. What
is more, as the only member of the Commission who voted against the measure,
Sheehan has bemoaned the irregularities by which that decision was made.
For instance, Sheehan told the press that the $250,000 payout to Kealoha was
“expensive, unnecessary, and very likely undeserved.”2 She added that the Commission
failed to hold a for-cause termination hearing “to examine the issues that have been
raised regarding his leadership and management abilities.”3 According to Sheehan,
there were numerous examples of questionable decision-making and poor departmental
oversight—encompassing 11 independent concerns—that warranted Kealoha’s
removal. 4 Why give Kealoha “a golden parachute,” Sheehan demanded, when “there
was a good chance that Chief Kealoha was going to be indicted and convicted” and
“more importantly, that there was adequate cause to fire him for free?”5
2
Gordon Y.K. Pang, Kealoha to get $250,000 to retire as HPD chief, Honolulu Star-
Advertiser, Jan. 18, 2017, https://www.staradvertiser.com/2017/01/18/breaking-
news/kealoha-to-get-250000-to-retire-as-hpd-chief/.
3
Id.
4
Nick Grube, Why One Police Commissioner Wanted to Fire the Chief, Honolulu Civil
Beat, Jan. 20, 2017, https://www.civilbeat.org/2017/01/why-one-police-commissioner-
wanted-to-fire-the-chief/.
5
Lynn Kawano, Kealoha payoff at center of probe was controversial when it was
4
It was Leong and her co-defendant, Max Sword, who steered the Commission
away from firing Kealoha and towards giving him a settlement payout, Sheehan
revealed. 6 Mysteriously, the real deal-making occurred behind closed doors with only
Leong, Sword, and Kealoha (with his attorney) in attendance. 7 And it was Leong who
pressured the Commission to accept what Leong described as a non-negotiable
$250,000 settlement package. 8 As Sheehan reflected, it was not “right” to get Kealoha
“out the door without any discussions [and] without any public hearings.”9
It is not difficult to see why Sheehan’s testimony is poised to do significant
damage to Leong. After all, Sheehan was a percipient witness to the things Leong said
and did before the Commission, and Sheehan will testify about them from the lens of
an observer who was, and continues to be, deeply incredulous about the propriety of the
payoff, the decision-making process, and Leong’s part in steering the matter towards
the chosen resolution. This evidence is not just probative—it goes straight to the heart
hammered out, Hawaii News Now, Jan. 12, 2022,

https://www.hawaiinewsnow.com/2022/01/13/kealoha-payoff-center-corruption-probe-
was-controversial-when-it-was-hammered-out/.
6
Christina Jedra, How a Honolulu Police Chief Facing A Corruption Probe Got a
$250,000 Payout, Honolulu Civil Beat, Jan. 23, 2022,
https://www.civilbeat.org/2022/01/how-a-honolulu-police-chief-facing-a-corruption-
probe-got-a-250000-payout/.
7
Nick Grube, Newly Released Minutes Reveal How Louis Kealoha Got His $250,000
Buyout, Honolulu Civil Beat, Oct. 1, 2019, https://www.civilbeat.org/2019/10/newly-
released-minutes-reveal-how-louis-kealoha-got-his-250k-buyout/.
8
Id.
9
Lynn Kawano, $250,000 payout to Kealoha links city’s top civil attorney to corruption
probe, Hawaii News Now, Jan. 16, 2019, https://www.hawaiinewsnow.com/2019/01/16/k-
payout-kealoha-links-citys-top-civil-attorney-corruption-probe/.
5
of the allegation that Leong conspired “to materially omit and conceal and cause others
to materially omit and conceal the details of the Kealoha payout from the City Council
and the public.” First Superseding Indictment (FSI) ¶ 26.
Possibly many strategies are available to a lawyer tasked with handling
Sheehan’s testimony. Unfortunately for Otake, whatever he does may never be enough.
If Leong is convicted, Otake’s close professional and financial association with Sheehan
will cast a shadow over this trial as the reason why he failed to do this, that, or the other.
The tenor of his advocacy and his strategic trial decisions will be endlessly scrutinized,
and called into doubt, because of his entwined relationship with a key government
witness. In short, Otake’s conflicts of interest not only compromise his ability to give
Leong a full-throated defense, but they also threaten to bring these proceedings into
disrepute, and in so doing they supply Leong with valuable ammunition to later contend
that she was deprived of effective and unconflicted counsel.
The problems do not end there. Sheehan also had conversations with Otake about
her work on the Police Commission, encompassing the payout to Kealoha. Besides
making him a potential witness in the upcoming trial, their conversations may have
risen beyond professional banter into the realm of legal advice. The United States
appends to this motion a declaration sworn out by Sheehan, in which she reveals she
sought and received legal counsel from the attorneys at Davis Levin Livingston about
her duties on the Commission. See Ex. 1. Sheehan regarded the attorneys at the firm as
her counsel, loyal to her, whose duties of loyalty enabled her to be “free to discuss
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matters that I would otherwise be required to keep confidential.” Id. at ¶ 7.
There are significant, swirling questions about whether Otake may ethically and
uncompromisingly serve as Leong’s counsel at trial. These questions may not simply
be resolved by stipulation or private agreement, as Otake has suggested to the United
States. Rather, they should be placed on the record and fleshed out in a public forum.
Because the Sixth Amendment demands nothing less, the United States submits this
motion before the Court.
III
DISCUSSION
The United States does not question Leong’s right to “be defended by the counsel
[s]he believes to be best”—and we recognize that reversible error will occur “when the
defendant is erroneously prevented from being represented by the lawyer [s]he
wants[.]” United States v. Gonzalez-Lopez, 548 U.S. 140, 146 and 148 (2006). But this
extreme result occurs in only the most gratuitous of cases,10 because trial courts are
entrusted with “wide latitude” to balance “the right to counsel of choice against the
needs of fairness[.]” Id. at 152. Significantly, the fairness consideration encompasses
the judge’s “independent interest in ensuring that criminal trials are conducted within
the ethical standards of the profession and that legal proceedings appear fair to all who
10
The United States conceded in Gonzalez-Lopez that the judge arbitrarily denied the
defendant with his choice of counsel by denying the attorney’s application for admission
pro hac vice. 548 U.S. at 144. The judge erroneously believed counsel violated an ethics
rule, which, to make matters worse, had occurred in an entirely different case. Id. at 143.
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observe them.” Id. (quoting Wheat v. United States, 486 U.S. 153, 160 (2006)).
Consequently, the “Sixth Amendment right to choose one’s own counsel is
circumscribed in several important respects.” Wheat, 486 U.S. at 159. Relevant here, a
defendant may not insist on conflicted representation, id. at 160, or even “demand that
a court honor [her] waiver of conflict-free representation.” Gonzalez-Lopez, 548 U.S.
at 152. And for good reason. “Not only the interest of a criminal defendant but the
institutional interest in the rendition of just verdicts in criminal cases may be
jeopardized by” counsel afflicted by conflicts of interest. Wheat, at 160.
Conflicted attorneys have a unique capacity to tarnish our system of justice. For
one, the presence of “conflicting interests is suspect because of what it prevents the
attorney from doing.” Holloway v. Arkansas, 435 U.S. 475, 489–90 (1978). “[W]hen
the advocate’s conflicting obligations have effectively sealed his lips on crucial
matters,” it erodes the client’s right to a fair trial. Id. at 490. For another, courts have a
“legitimate” institutional interest “that their judgments remain intact on appeal.” Wheat,
486 U.S. at 161. When “the advocacy of counsel is thereafter impaired as a result [of a
conflict], the defendant may well claim that he did not receive effective assistance,” id.,
thereby baking problems into the verdict before it is even reached. In addition, the
appearance of impropriety can erode “public confidence in the legal profession,” a value
courts unquestionably “have a responsibility to maintain[.]” Gas-A-Tron of Arizona v.
Union Oil of California, 534 F.2d 1322, 1324–24 (9th Cir. 1976).
For these reasons, a district court is “allowed substantial latitude in refusing

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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. And where—as here—a party “raise[s] the conflict
problem explicitly and request[s] that the court look into it,” the court has “a duty to
inquire further” when the facts at least “demonstrate that the possibility of a conflict of
interest” exists. Wood v. Georgia, 450 U.S. 261, 272–73 (1981). At all times, the court’s
obligation is to uphold the Sixth Amendment, wherein “the essential aim” is not “to
ensure that a defendant will inexorably be represented by the lawyer whom [she]
prefers,” but rather that she is “guarantee[d] an effective advocate[.]” Wheat, at 159.
A. RULES OF PROFESSIONAL CONDUCT
The Hawaii Rules of Professional Conduct11 give the Court four useful
guideposts that show why Otake suffers from conflict of interest problems. First,
because Sheehan obviously could not represent Leong in this matter, Sheehan’s conflict
is imputed to Otake due to their partnership in the same law firm. See HRPC 1.10.
Second, Otake’s professional and financial association with Sheehan imbues him with
a significant personal stake in a critical adverse witness—and this interest risks
undermining Otake’s ability to vigorously defend his client. See HRPC 1.7. Third,
11
The local rules require all attorneys practicing in this Court to “observe the standards of
professional and ethical conduct required of members of the State Bar of Hawaii.” LR 83.3;
see CrimLR 12.3 (civil rules “applicable to criminal cases” unless otherwise provided).
9
because Otake and Sheehan shared private discussions about matters central to this case,
he may have to testify as a witness in violation of the witness-advocate rule. See HRPC
3.7. Fourth, if Otake acted as Sheehan’s legal counsel for her duties on the Police
Commission, as her declaration implies, then he cannot represent Leong in a
“substantially related matter” because Leong and Sheehan’s interests are “materially
adverse.” See HRPC 1.9. Together, these factors threaten the integrity of the trial.
B. DUTY OF LOYALTY
Ethical considerations require that a law firm be unified in its loyalty to a client.
Otake’s representation of Leong is not consistent with this principle.
“While lawyers are associated in a firm, none of them shall knowingly represent
a client when any one of them practicing alone would be prohibited from doing so by
Rule[] 1.7” (governing conflicts of interest). HRPC 1.10(a). Principles of loyalty
demand this result: either “a firm of lawyers is essentially one lawyer for purposes of
the Rules governing loyalty to the client,” or “each lawyer is vicariously bound by the
obligation of loyalty owed by each lawyer with whom the lawyer is associated.” HRPC
1.10, cmt. 2. Courts have therefore pronounced that “if one attorney in a firm has an
actual conflict of interest, we impute that conflict to all the attorneys in the firm,
subjecting the entire firm to disqualification.” United States v. Ross, 33 F.3d 1507, 1523
(11th Cir. 1994); see Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1387 (2d Cir.
1976) (“because of the peculiarly close relationship existing among legal partners, if
[one partner] is disqualified, his partners at the . . . firm are disqualified as well”).
10
There is an exception to this rule. The prohibition against divided firm loyalties
does not apply if “the prohibition is based on a personal interest of the prohibited lawyer
and does not present a significant risk of materially limiting the representation of the
client by the remaining lawyers in the firm.” HRPC 1.10(a) (emphasis added). On the
other hand, if “others in the firm would be materially limited in pursuing the matter
because of loyalty to that lawyer, the personal disqualification of the lawyer would be
imputed to all others in the firm.” HRPC 1.10, cmt. 3.
Nobody would dispute that Sheehan has a personal conflict of interest that
disqualifies her from representing Leong. As the only member of the Police
Commission who voted against the payout to Kealoha, Sheehan has railed against not
only the payout itself but the pressure tactics and lack of transparency behind the
decision. Indeed, when Sheehan later became chairwoman of the Commission, she
made transparency and engagement with the City Council key priorities for the
administrative body going forward.12 In other words, Sheehan’s membership in the
Commission, forceful criticisms of the payout, and public service legacy, are anathema
to the task of defending Leong’s machinations before the same Commission, which
implicate the core allegations of the First Superseding Indictment.13 See FSI ¶¶ 26–32.
12
Gordon Y.K. Pang, Sheehan takes over as head of Police Commission in 6-0 vote,
Honolulu Star-Advertiser, Feb. 22, 2018,
https://www.staradvertiser.com/2018/02/22/hawaii-news/sheehan-takes-over-as-head-of-
police-commission-in-6-0-vote/.
13
Furthermore, Sheehan will have to testify against Leong on these topics. See HRPC 3.7,
cmt. 7 (“if there is likely to be substantial conflict between the testimony of the client and
11
The more important question then, is whether “others in the firm would be
materially limited in pursuing the matter because of loyalty to” Sheehan. HPRC 1.10,
cmt. 3. We believe they would. As a matter of fact, the law firm has already taken sides,
throwing the weight of its corporate support behind Sheehan.
On March 11, 2019, Davis Levin Livingston issued a press release “Recognizing
Greatness” in Sheehan for “stand[ing] firmly” and criticizing a payout to Kealoha
comprised of money “outside what most would expect tax dollars to cover.” See Ex. 2.
The firm specifically lauded Sheehan because she “did not hesitate to raise eyebrows
and questions about the various shades of gray that surround both the severance amount
and the continued effort to collect taxpayer money” for Kealoha.
that of the lawyer, the representation involves a conflict of interest”).

12
Ex. 2.
In the face of the firm’s institutional support of Sheehan, over a matter of high
public importance, others in the firm—Otake included—would be “materially limited
in pursuing” a case where he will have to challenge, refute, and discredit Sheehan over
the same matter. For better or worse, the legal industry is one where preserving “the
prestige of the law firm” is an important facet of a firm’s business model—in no small
part because it broadcasts the firm’s values and ability to others. Cf. MHC Inv. Co. v.
Racom Corp., 323 F.3d 620, 623 (8th Cir. 2003) (firm emphasized its prestige in
unsuccessful bid to avoid sanctions). The prospect of Otake attacking his own law
partner in a public courtroom, over conduct that carries the imprint of the firm’s
approval, could potentially embarrass the firm and hurt its reputation. Not only might it
convey internal disharmony, it may telegraph the firm does not have a consistent set of
values, or its values are not sincere but subject to the winds of expedience.
The United States anticipates Otake will contend that he has made arrangements
to distance his representation of Leong from his formal membership in the firm. But
any creative sleight-of-hand would only paper over the conflict, not resolve it. At the
end of the day, Otake still holds himself out as a partner in the law firm, which possesses
an unquestionable duty to be unified in loyalty to the clients its lawyers take on. Otake’s
defense of Leong is at odds with this duty. In addition, his advocacy may well be
constrained by the damage it could cause to the reputation of his own law firm.
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C. PERSONAL INTEREST
Not only is Otake treading a path that could create ethics problems for his firm;
his decision to represent Leong appears to collide with his personal interests, too.
The rules of professional conduct forbid an attorney from acting “as advocate in
a trial in which another lawyer in [his] law firm is likely to be called as a witness” if
doing so would violate Rule 1.7, the rule barring personal conflicts of interest. HRPC
3.7(b). That rule, in turn, prohibits a lawyer from representing a client if “there is a
significant risk that the representation of one or more clients will be materially limited
by . . . a personal interest of the lawyer.” HRPC 1.7(a)(2).
The rules do not provide an exhaustive definition of what “personal interest”
means. Nevertheless, they do give descriptive guidance. For example, the commentary
to Rule 1.7 underscores that “[l]oyalty and independent judgment are essential elements
in the lawyer’s relationship to a client,” and “conflicts of interest can arise when the
lawyer’s responsibilities to another client . . . diverge from the lawyer’s own interests.”
HRPC 1.7, cmt. 1. Furthermore, “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.” HRPC 1.7, cmt. 8. Notably, the commentary recognizes
that “business interests” could “affect representation.” HRPC 1.7, cmt. 10.
Common sense suggests that the prospect of attacking, discrediting, and
potentially embarrassing one’s own law partner in open court implicates a “business
14
interest” that may “affect representation.” HRPC 1.7, cmt. 10. This is so, because such
an interest could adversely impact the lawyer’s “ability to consider, recommend, or
carry out an appropriate course of action for the client[.]” HRPC 1.7, cmt. 8. To put it a
different way, Otake’s “pecuniary interest in possible future business may cause him to
avoid vigorous cross-examination which might be embarrassing or offensive to the
witness.” United States v. Jeffers, 520 F.2d 1256, 1264 (7th Cir. 1975).
This unsettling prospect requires no leap of logic. Law partners share a
“peculiarly close relationship,” Cinerama, 528 F.2d at 1387, and the “close, informal
relationship which exists among law partners and associates, especially in a firm the
size of” this one, creates “financial incentives which exist to discuss current
employment” opportunities. In re Asbestos Cases, 514 F.Supp. 914, 923 (E.D.V.A.
1981). So, to be sure, law partners do not merely share profits—they often bring each
other business. And there is no better way to sabotage lucrative business opportunities
than to permanently alienate a fellow law partner by discrediting her in federal court.14
That Otake and Sheehan are financially tethered together is further underscored
by the fact that, between 2016 and 2020, Sheehan served on Davis Levin Livingston’s
financial compensation committee. Ex. 1. The purpose of that committee was to
determine year-end bonus amounts for the employees of the law firm. Ex. 1. Thus, it
appears that for a period of time, Sheehan played an important role in determining the
14
By burning bridges with Sheehan, Otake could do the same with other law partners who
have equal or greater power to impact his, or her, success at the firm.
15
size of Otake’s paycheck. Even though Sheehan does not currently serve on that
committee, her active hand in the affairs of the law firm—past, present, and future—
surely cannot be lost on Otake. One could not imagine a more palpable incentive—
conscious or not—for him to give Sheehan preferential treatment in the courtroom. Yet
the pull of this incentive runs diametrically opposed to Otake’s duty to advocate for and
defend Leong. This Court should not accept, nor should any attorney even attempt to
bear, the heavy weight of such a conflict of interest.
Otake has told the United States he will delegate the task of cross-examining
Sheehan to his co-counsel, Panagakos. In our view, that is not enough. Unless Otake
steps away from all responsibilities in which Sheehan—and the import of her
testimony—could be mentioned, he cannot erase the possibility, or the appearance, that
his job as an advocate is compromised by personal and financial incentives. Any other
arrangement would expose the jury’s verdict, assuming a conviction is obtained, to
possible reversal. See Mannhalt v. Reed, 847 F.2d 576, 580 (9th Cir. 1988) (granting
habeas relief to defendant who demonstrated “conflict between a client and his lawyer’s
personal interest”); see also United States v. Hearst, 638 F.2d 1190, 1193 and 1195 (9th
Cir. 1980) (recognizing potential ineffective assistance of counsel claim based on
conflict due to counsel’s “private financial interests”).
D. WITNESS-ADVOCATE RULE
The United States believes that Otake and Sheehan also shared private
discussions about Sheehan’s impressions and experiences on the Police Commission

16
during the Kealoha payout. As a result, Otake is in danger of testifying as a fact witness
in a case where he is advocating for his client.
“The roles of an advocate and of a witness are inconsistent; the function of an
advocate is to advance or argue the cause of another, while that of a witness is to state
facts objectively.” Kay v. Ehrler, 499 U.S. 432, 437 n.9 (1991) (quoting ABA Model
Code of Professional Responsibility (1977)). At least four reasons explain why a lawyer
should not act as a witness in the same case he is litigating: (1) the lawyer may appear
to vouch for his own credibility; (2) by testifying, the lawyer may place opposing
counsel in the difficult position of cross-examining a professional adversary in the
courtroom; (3) the lawyer risks distorting the truth in favor of his client; and (4) blurring
the line between argument and evidence could confuse the jury. Murray v. Metropolitan
Life Ins. Co., 583 F.3d 173, 178 (2d Cir. 2009). Accordingly, the witness-advocate rule
protects “the integrity of the advocate’s professional role by eliminating the opportunity
of mixing law and fact” and also by “preventing a lawyer from injecting his or her
personal belief as to the cause into the lawyer’s argument to the jury.” Culebras
Enterprises Corp. v. Rivera-Rios, 846 F.2d 94, 100 (1st Cir. 1988).
There is reason to believe Otake could well be a fact witness in this case.
Immediately after the Commission approved the payout to Kealoha, Otake picked
Sheehan up and drove her to the airport for a business trip. During that car ride, Sheehan
spoke to Otake about the Commission’s vote and her feelings about what happened.
Given the significance in the timing of this conversation, the United States believes
17
Otake may offer himself as a rebuttal witness if he perceives any inconsistency between
Sheehan’s testimony and their private conversations. See Fed. R. Evid. 613.
There are only three exceptions to the rule prohibiting representation “at a trial
in which the lawyer is likely to be a witness[.]” HRPC 3.7(a). First, the testimony relates
to an uncontested issue. HRPC 3.7(a)(1). Second, the testimony relates to the nature and
value of legal services rendered in the case. HRPC 3.7(a)(2). Third, the disqualification
of the lawyer would “work substantial hardship on the client.” HRPC 3.7(a)(3). None
of these exceptions apply. Otake’s testimony with respect to rebuttal facts would not
concern “an uncontested issue” or “the nature and value of legal services.” Nor would
his disqualification at this stage of the case “work substantial hardship on” Leong. So
far, it appears that most if not all of the legal work has been performed by Panagakos,
who has represented Leong for years. By contrast, Otake is much newer to the case,
having entered his appearance on April 11, 2022. See ECF No. 97.
To be certain, the United States cannot forecast the likelihood that Otake will
testify. But we believe it is fair to assert his testimony is a possibility. And if he testifies,
it will come at a time when it is too late for the Court to rectify the problem. Yes, the
“likelihood and dimensions of nascent conflicts of interest are notoriously hard to
predict.” Wheat, 486 U.S. at 163. That is precisely why district courts are entrusted with
“substantial latitude” at the front end to assess whether or not the representation in
question is appropriate and should continue.
If Otake decides to testify, “[c]ombining the roles of advocate and witness can
18
prejudice the tribunal and the opposing party and can also involve a conflict of interest
between the lawyer and client.” HRPC 3.7, cmt. 1. Even if he does not ultimately testify,
Leong may subsequently contend that her lawyer’s decision to represent her kept him
off the stand and stripped her of valuable rebuttal evidence. When combined with the
other conflicts identified by the United States, the possibility that Otake will be a
witness compounds the various ways his representation of Leong endangers this trial.
E. CONTINUING DUTY TO FORMER CLIENT
Finally, the Court is under an obligation to ensure that Otake did not function as
Sheehan’s attorney with respect to her work on the Police Commission. But even if the
Court finds that Otake did not act as Sheehan’s counsel, it would still be confronted
with another pressing conflict. Within the setting of a small law office, Otake was likely
privy to attorney-client information that Sheehan had shared in confidence with the
partners in the law firm about the Police Commission.
In her declaration, Sheehan asserts that she “sought and received guidance and
advice from the attorneys within Davis Levin Livingston on a variety of legal issues . .
. which surfaced in the course of public and executive sessions of the Police
Commission.” Ex. 1 at ¶ 7. Sheehan unequivocally “viewed them as my attorneys and,
as such, I was free to discuss matters that I would otherwise be required to keep
confidential.” Ex. 1 at ¶ 7. Although Sheehan does not identify Otake by name, it
appears she believes Otake was one of “my attorneys” with respect to her duties on the
Police Commission. This is consistent with the understanding of the United States that
19
Sheehan regularly sought advice from her law partners about Commission business
during office gatherings in which Otake was present.
The Court has a duty to determine whether Otake established an attorney-client
relationship with Sheehan. If this occurred, then Otake is barred from representing
Leong in “a substantially related matter in which that person’s interests are materially
adverse to the interests of the former client[.]” HRPC 1.9(a). The reasons for this are
plain. Otake possesses “continuing duties with respect to confidentiality and conflicts
of interests” with respect to his former clients. HRPC 1.9, cmt. 1. If indeed Sheehan
was formerly Otake’s client, then the provisions of HRPC 1.9 kick in for her
“protection” and may only be waived by Sheehan herself. HRPC 1.9, cmt. 9.
If Otake is engaging in a prohibited representation, it matters for this trial. It
certainly matters for Otake. “Failure to comply with an obligation or prohibition
imposed by a Rule is a basis for invoking the disciplinary process.” HRPC, Scope, cmt.
6. It matters for Sheehan, who has a right to expect that her former attorney preserves
her “confidentiality” and remains free from “conflicts of interest.” HRPC 1.9, cmt. 1. It
matters for this Court. “Federal courts have an independent interest in ensuring that
criminal trials are conducted within the ethical standards of the profession and that legal
proceedings appear fair to all who observe them.” Wheat, 486 U.S. at 160. And it
matters for Leong. “Many courts have found an actual conflict of interest when a
defendant’s lawyer faces . . . significant disciplinary consequences as a result of
questionable behavior related to his representation of the defendant.” United States v.

20
Levy, 25 F.3d 146, 156 (2d Cir. 1994) (citing cases). It would be very difficult for Otake
to remain loyal to Leong should Sheehan factor into any discipline he might face. See
Mannhalt, 847 F.3d at 582 (“personal interest in preserving his reputation . . . may have
impacted the manner of” advocacy); United States v. Jones, 900 F.2d 512, 519 (2d Cir.
1990) (“fear of prompting a government investigation into the attorney’s own
wrongdoing would preclude an attorney from asserting a vigorous defense”).
Even if Otake did not himself establish an attorney-client relationship with
Sheehan, but others in the law firm did, his ability to advocate for Leong would still be
compromised by the ethics rules designed for Sheehan’s protection. HRPC 1.9, cmt. 9.
Based in part on Sheehan’s declaration, the United States believes Otake was present
on many occasions when Sheehan sought out legal advice with respect to the Police
Commission. If this is true, Otake would be forbidden from using any information
obtained by Davis Levin Livingston “to the disadvantage of” Sheehan, and he could not
“reveal information relating to the representation” in the course of defending Leong.
HRPC 1.9(c). In the intensity of trial, it will be prohibitively difficult for Otake to
distinguish between information that is permissible and information that is off limits.
The low margin for error—compounded by the prospect of professional discipline—
creates a cloud that no client, including Leong, should have hanging over their counsel.
As the Supreme Court recognized long ago, no attorney should take on a case where he
will “struggle to serve two masters[.]” Glasser v. United States, 315 U.S. 60, 75 (1942).
21
F. HEARING AND WAIVER
For the foregoing reasons, the Court should convene a hearing to determine the
scope of any prior attorney-client relationship between Otake, the Davis Levin
Livingston firm, and Sheehan. If the Court finds that Otake and Sheehan formed an
attorney-client relationship, or Otake possesses privileged information about Sheehan’s
work on the Commission, then Otake likely cannot represent Leong without violating
his duties to Sheehan.15 In such a case, Leong cannot waive the conflict; only Sheehan
can. Leong’s consent also would not be able to ameliorate the danger that Otake might
violate the witness-advocate rule in this case.
As to the other issues, Leong must, at a minimum, waive the conflicts identified
by the United States in order to protect the integrity of this case. See HRPC 1.10(d)
(permitting client to waive disqualification by imputation in accordance with Rule 1.7);
see also HRPC 1.7(b)(1)–(4) (requiring client to provide written consent to counsel’s
personal conflicts of interest after necessary consultation). Courts may permit an
attorney to continue despite the presence of a conflict “if the defendant makes a
voluntary, knowing, and intelligent waiver.” United States v. Martinez, 143 F.3d 1266,
1269 (9th Cir. 1998) (quoting Garcia v. Bunnell, 33 F.3d 1193, 1195 (9th Cir. 1994)).
15
The Court’s inquiry would not require Sheehan to “reveal the confidential information
learned by the lawyer in order to establish a substantial risk that the lawyer has confidential
information to use in the subsequent matter.” HRPC 1.9, cmt. 3. Rather, the Court’s
determination “about the possession of information may be based on the nature of the
services the lawyer provided the former client and information that would in ordinary
practice be learned by a lawyer providing such services.” HRPC 1.9, cmt. 3.
22
The United States therefore requests that the Court at least obtain appropriate waivers
from Leong on the record after establishing that she fully understands: (1) the conflicts
of interest affecting Otake; (2) her right to conflict-free counsel; (3) her right to seek
outside legal advice about the conflicts and whether to waive them; and (4) her right to
discuss with the Court any dissatisfaction or concerns regarding her attorney. See id.
But Leong’s “waiver of [the] conflict of interest is not dispositive.” United States
v. Rewald, 889 F.2d 836, 857 (9th Cir. 1989). Because “[f]ederal courts have an
independent interest in ensuring that criminal trials are conducted within ethical
standards of the profession and that legal proceedings appear fair to all who observe
them,” even a valid waiver may not “cure[] any problems created by [conflicted]
representation.” Id. (quoting Wheat, 486 U.S. at 160). This Court therefore retains
“substantial latitude in refusing waivers of conflicts of interest” where there is either
actual or potential conflict, particularly when “[s]uch representation not only constitutes
a breach of professional ethics and invites disrespect for the integrity of the court,” but
also opens the Court to “future attacks over the adequacy of the waiver or the fairness
of the proceedings[.]” Wheat, at 162–63 (internal quotations omitted).
Under the unusual facts of this case, a waiver may not be enough. We do not say
this lightly, for the United States respects Leong’s right to the choice of her attorney.
The United States does not question Otake’s professional or personal integrity, nor the
sincerity of his desire to represent his client. At the same time, Otake cannot question
his extremely close professional and financial ties to Sheehan—his own law partner
23
who will be a significant adverse witness against the very client Otake wishes to
represent. Otake and Sheehan’s entwined relationship is at the heart of multiple layers
of serious conflicts of interest that create tangible impediments in Otake’s ability to
defend Leong. These barriers, in turn, damage the integrity of the proceedings, threaten
Leong’s Sixth Amendment right to counsel, and compromise the finality of any
conviction. A hearing is therefore necessary to ascertain the severity of the conflicts of
interest, whether these conflicts may be waived by his client, and whether or not there
are ways Otake may continue to represent Leong short of outright disqualification.
IV
CONCLUSION
The United States respectfully requests that the Court grant this motion and
convene a hearing to inquire into Otake’s conflicts of interest.
DATE: February 14, 2023
Respectfully submitted,
MERRICK GARLAND
United States Attorney General
RANDY S. GROSSMAN
United States Attorney
/s/ Andrew Y. Chiang

MICHAEL G. WHEAT
JOSEPH J.M. ORABONA
JANAKI G. CHOPRA
COLIN M. MCDONALD
ANDREW Y. CHIANG
Special Attorneys
24
UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
CR No. 21-142-LEK
UNITED STATES OF AMERICA,
CERTIFICATE OF SERVICE
Plaintiff,
v.
DONNA YUK LAN LEONG (1),

MAX JOHN SWORD (2),
ROY KEIJI AMEMIYA, JR. (3),
Defendants.
IT IS HEREBY CERTIFIED that:

I, Andrew Y. Chiang, am a citizen of the United States and am at least eighteen
years of age. My business address is 880 Front Street, Room 6293, San Diego,
CA 92101-8893.
I am not a party to the above-entitled action. I have caused service of the
foregoing on all parties in this case by electronically filing the foregoing with the
Clerk of the District Court using its ECF System, which electronically notifies them.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on February 14, 2023.
/s/ Andrew Y. Chiang

ANDREW Y. CHIANG
Special Attorney
25
Case 1:21-cr-00142-LEK Document 194-1 Filed 02/14/23 Page 1 of 3 PageID.1839
DECLARATION OF LORETTA A. SHEEHAN
Pursuant to 28 U.S.C. Section 1746, I, Loretta A. Sheehan, hereby declare as

follows:
l. I am a former Police Commissioner for the City and County of Honolulu,

State of Hawaii, and I have personal knowledge of the facts stated in this
Declaration.
2. Pursuant to nomination by Mayor Kirk Caldwell and confirmation by the

City Council of Honolulu, on August 15,2016, I was sworn in as a Police
Commissioner for the City and County of Honolulu.
3. I served on the Police Commission for the City and County of Honolulu
until my resignation, effective June 1,2020.
4. From August 15,2016 through June 1,2020, I was a partner at the law firm
of Davis Levin Livingston. Within that time I served on the compensation
committee which determined year-end bonus amounts. I continue to be a
partner at Davis Levin Livingston.
5. From August 15,2016 through June 1,2020, the Police Commission met bi-
monthly, unless additional, special meetings were called or a failure to have
a quorum was predicted.
6. Throughout my tenure on the Police Commission, I encountered a variety of

legal issues and challenges, in both public and executive sessions.
7. Throughout my tenure on the Police Commission, I sought and received

guidance and advice from the attorneys within Davis Levin Livingston on a
variety oflegal issues, to include interpretation of Hawaii's sunshine law,
conflicts of interests, recusals, and settlement agreements, among others,
which surfaced in the course of public and executive sessions of the Police
Commission. In speaking with lawyers at my firm, I viewed them as my
attorneys and, as such, I was free to discuss matters that I would otherwise
be required to keep confidential.
8. At the January 6, 2017 meeting, Police Commission Chairperson Max

Sword outlined the terms of a potential agreement that had been crafted by
Corporation Counsel Donna Leong under which Chief of Police Louis
Kealoha would agree to retire. Police Commissioners voted to permit Chair

Sword and Corporation Counsel Leong to negotiate the detailed terms of the
agreement in principle with Chief Kealoha and Chief Kealoha's counsel.
9. Prior to the January 18,2017 meeting, it was reported in the news media that
the Police Commission was considering approving a $250,000 settlement in
exchange for Chief Kealoha's retirement.
1O.Prior to the January 18, 2017 meeting, in a "special meeting," Chair Max
Sword excused the Executive Secretary Erin Yamashita from the room and
went "off the record" in an unrecorded, undocumented portion of the
meeting to condemn any conversations with the media regarding
negotiations with Chief Kealoha and Chief Kealoha's counsel.
11.Sometime prior to the January 18,2017 meeting at which the Police

Commission voted to pay Chief Louis Kealoha $250,000 in order to secure
his retirement, I distributed to members of the Police Commission a letter
which I had drafted with the assistance of counsel with whom I had an
attorney/client relationship, which outlined deficiencies in Chief Kealoha's
leadership and which could serve as the basis to begin termination
proceedings.
12.My point was that the Police Commission did not have to pay Chief Kealoha
$250,000. I was attempting to inform that Police Commission that if we
provided Chief Kealoha with due process, held a hearing, and found
violations of the Honolulu Police Department's Standards of Conduct
amounting to "good cause" for termination, Chief Kealoha could be fired at
no cost to the taxpayers.
13.Corporation Counsel Donna Leong expressed her view that she opposed a
"for cause" hearing because, if such a hearing resulted in termination, Chief
Kealoha could file a lawsuit against the Police Commission.
14.1 responded that in the event of a lawsuit, the Police Commission could be
defended at no cost by the Office of Corporation Counsel.
15.At the January 18,2017 meeting, after Corporation Counsel Leong had
explained a proposed $250,000 agreement with ChiefKealoha, Chairperson
Max Sword asked me if I wanted to discuss my proposed "for cause" letter
and hearing. I declined.
16.During a Police Commission meeting in February of20l7, Chair Sword and

Deputy Corporation Counsel Duane Pang presented me with a letter of
reprimand in which they accused me of having violated Hawaii law by
providing my proposed "for cause" letter to the media. In their letter, they
claimed that I had revealed matters to the media which had been discussed in
executive session, specifically, my letter which outlined deficiencies in
Chief Kealoha's leadership and which, if supported in a "for cause" hearing,
could have served as the basis for termination of Chief Kealoha.
17.1 immediately reminded Chair Sword and Deputy Corporation Counsel Pang
that we, in fact, had not discussed my proposed "for cause" letter in
executive session on January 18, 2017 nor at any other time. Deputy
Corporation Counsel Pang conceded that I was correct. I asked that Chair
Sword's letter of reprimand be withdrawn.
18.I declare under penalty of perjury that the foregoing is true and correct to the
best of my knowledge and belief.
~~t-~
Loretta A. Sheehan
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In Hawaii, the case of Louis and Katherine Kealoha has circulated throughout all news groups, headlines, and social media
C E R E B RA L PA LSY (4) feeds. According to investigations, Louis Kealoha and his wife, Katherine, were tied up in a federal drug distribution while he
C H A R I TA B L E WO R K (3) was serving as Honoluluʼs police chief and she was acting as a Honolulu city prosecutor. The story has been enough to stir
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F I R M N E WS (19) most would expect tax dollars to cover. Attorney Sheehan, who has a background as a federal prosecutor and now pursues
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I N T H E N E WS (79) money to defend the criminally accused.
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Case 1:21-cr-00142-LEK Document 194 Filed 02/14/23 Page 1 of 25 PageID.

Attorneys for the United States of America

UNITED STATES DISTRICT COURT

The prosecution of Donna Leong is on a collision course with conflicts of interest

involving her attorney, Thomas Otake. This is because Otake appears to be

professionally and financially enmeshed with a significant government witness, Loretta

where he is supposed to be an advocate. Worst of all, Sheehan believes the attorneys at

is right, Otake’s ability to represent Leong may be compromised beyond redress.

These entanglements jeopardize the integrity of the proceedings; needlessly so.

a third law partner, they would have stood shoulder-to-shoulder.

critic of the Commission’s decision to give $250,000 in taxpayer money to a police

raised regarding his leadership and management abilities.”3 According to Sheehan,

there were numerous examples of questionable decision-making and poor departmental

oversight—encompassing 11 independent concerns—that warranted Kealoha’s

pressured the Commission to accept what Leong described as a non-negotiable

It is not difficult to see why Sheehan’s testimony is poised to do significant

hammered out, Hawaii News Now, Jan. 12, 2022,

and the public.” First Superseding Indictment (FSI) ¶ 26.

Possibly many strategies are available to a lawyer tasked with handling

that she was deprived of effective and unconflicted counsel.

matters that I would otherwise be required to keep confidential.” Id. at ¶ 7.

be resolved by stipulation or private agreement, as Otake has suggested to the United

motion before the Court.

defendant is erroneously prevented from being represented by the lawyer [s]he

needs of fairness[.]” Id. at 152. Significantly, the fairness consideration encompasses

Consequently, the “Sixth Amendment right to choose one’s own counsel is

a court honor [her] waiver of conflict-free representation.” Gonzalez-Lopez, 548 U.S.

institutional interest in the rendition of just verdicts in criminal cases may be

jeopardized by” counsel afflicted by conflicts of interest. Wheat, at 160.

courts unquestionably “have a responsibility to maintain[.]” Gas-A-Tron of Arizona v.

For these reasons, a district court is “allowed substantial latitude in refusing

A. RULES OF PROFESSIONAL CONDUCT

a significant personal stake in a critical adverse witness—and this interest risks

Commission, as her declaration implies, then he cannot represent Leong in a

Otake’s representation of Leong is not consistent with this principle.

Rule[] 1.7” (governing conflicts of interest). HRPC 1.10(a). Principles of loyalty

imputed to all others in the firm.” HRPC 1.10, cmt. 3.

administrative body going forward.12 In other words, Sheehan’s membership in the

throwing the weight of its corporate support behind Sheehan.

Greatness” in Sheehan for “stand[ing] firmly” and criticizing a payout to Kealoha

and the continued effort to collect taxpayer money” for Kealoha.

that of the lawyer, the representation involves a conflict of interest”).

public importance, others in the firm—Otake included—would be “materially limited

by . . . a personal interest of the lawyer.” HRPC 1.7(a)(2).

The rules do not provide an exhaustive definition of what “personal interest”

that a lawyer’s ability to consider, recommend, or carry out an appropriate course of

responsibilities or interests.” HRPC 1.7, cmt. 8. Notably, the commentary recognizes

Common sense suggests that the prospect of attacking, discrediting, and

an interest could adversely impact the lawyer’s “ability to consider, recommend, or

avoid vigorous cross-examination which might be embarrassing or offensive to the

This unsettling prospect requires no leap of logic. Law partners share a

employment” opportunities. In re Asbestos Cases, 514 F.Supp. 914, 923 (E.D.V.A.

financial compensation committee. Ex. 1. The purpose of that committee was to

bear, the heavy weight of such a conflict of interest.

testimony—could be mentioned, he cannot erase the possibility, or the appearance, that

arrangement would expose the jury’s verdict, assuming a conviction is obtained, to

Cir. 1980) (recognizing potential ineffective assistance of counsel claim based on

conflict due to counsel’s “private financial interests”).

discussions about Sheehan’s impressions and experiences on the Police Commission

in a case where he is advocating for his client.

“The roles of an advocate and of a witness are inconsistent; the function of an

counsel in the difficult position of cross-examining a professional adversary in the

“likelihood and dimensions of nascent conflicts of interest are notoriously hard to