Reading International, Inc. v. the Malulani Group, LimitedReading International, Inc. v. the Malulani Group, Limited
Hernandez-Castro cites United States v. Camarillo-Tello, 236 F.3d 1024 (9th Cir. 2001), in support of her contention. In Camarillo-Tello, an illegal re-entry case, the defendant‘s plea agreement provided that “[t]he government will recommend” a four-level downward adjustment to his offense level if the defendant stipulated to removal, waived any аppeal, and participated in the fast track program. Id. at 1025 (emphasis added). On appeal, under de novo review, this Court held the government breached the defendant‘s plea agreement: (1) by failing to include in its sentencing memorandum all the reasons in the defendant‘s plea agreement for the recommended four-level departure for fast track; and (2) by failing at sentencing to orally recommend the four-lеvel departure and instead altering its recommendation by endorsing a two-level departure. Id. at 1027.
Camarillo-Tello is distinguishable because today we review for plain error. Unlike the plea agreement in Camarillo-Tello, Hernandez-Castro‘s plea agreement does not indicate the government “will recommend” the four-level departure for fast track. Rather, paragraph eight of her plea agreement provides “the parties stipulate and agree that the following guideline calculations are appropriate for the charge for which the defendant is pleading guilty.” That language is sufficiently distinct from the language obligating government action in Camarillo-Tello for us to conclude no plain error occurred here. In addition, the government here did not alter its recommendation at sentencing. Consistent with Hernandez-Castro‘s plea agreement, the governmеnt recommended “a sentence at the low end of the range” of 46 to 57 months. If anything, the government altered its recommendation in Hernandez-Castro‘s favor by recommending a sentence at the low end of a range lower than that provided for in the plea agreement, indicating its preference for a more lenient, not a “harsher,” sentence. Cf. Camarillo-Tello, 236 F.3d at 1027 (noting that a prosecutor‘s promise in a plea agreement “is not fulfilled if, while making the recommendation, the prosecutor contradicts that recommendation with statements indicating a preference for a harsher sentence“).
III.
Because we hold the government did not breach Hernandez-Castro‘s plea agreement, we enforce her appellate waiver and dismiss her appeal.
DISMISSED.
Jay S. Handlin and Lindsay N. McAneeley, Carlsmith Ball LLP, Honolulu, HI, for Defendant-Appellee.
Before: STEPHEN REINHARDT, A. WALLACE TASHIMA, and JOHNNIE B. RAWLINSON, Circuit Judges.
ORDER
Appellee The Malulani Group, Limited (“TMG“) moves to disqualify counsel for appellant Reading International, Inc. (“Reading“), Bronster Fujichaku Robbins (“Bronster Firm“).1 TMG seeks disqualification because attorney Kenneth Robbins, a partner at the Bronster Firm, previously represented TMG while a partner at the firm Robbins & Associates.
We have jurisdiction over the appeal pursuant to
The pending appeal challenges the district court‘s judgment in favor of TMG in Reading‘s diversity action. Reading alleges that TMG breached a 2009 settlement agreement stemming from an action in the First Circuit Court, State of Hawaii, Magoon Investments, LLC v. Malulani Investments, Limited, Civil No. 06-1-2156 GWBC (“Prior Action“). TMG, represented by the firm Robbins & Associates, intervened in the Prior Action as the parent corpоration of the defendant Malulani Investments. Reading, represented by the Bronster Firm, was a plaintiff, counterclaim defendant, and defendant in intervention in the Prior Action.
Most of the legal work done by Robbins & Associates for TMG in the Prior Action was performed by attorney Kenneth Robbins and his associate attorney Sergio Rufo. TMG paid Robbins & Associates a total of $1,211,803.17 in fees and costs in the Prior Action.
The parties to the Prior Action mediated their dispute beginning in June 2008. On March 11, 2009, the parties to the Prior Action placed the broad terms of a settlement on the record with the Hawaii Circuit Court. The mediator indicated on the record that the parties had reached a settlement in principle and had a form of settlement and release, but that these documents were not in their final form, and additional settlement documents needed to be completed as well. The parties cоnfirmed through counsel that they agreed to the substance of the settlement and release agreements put on the record.
On March 16, 2009, TMG‘s president gave notice to Robbins & Associates that TMG was terminating its engagement, effective immediately. On June 18, 2009, Robbins & Associates moved to withdraw as counsel for TMG in the Prior Action. The motion to withdraw included a declaration by Robbins & Associates associate attorney Sergio Rufo that “the firm‘s engagement as counsel for [TMG] was tеrminated on March 17, 2009,” and that Rob-
The parties in the Prior Action negotiated a final set of settlement documents which were executed on July 2, 2009. On the same day, the Hawaii Circuit Court dismissed the claims and counterclaims of all parties in the Prior Action with prejudice, and granted Robbins & Associates’ motion to withdraw as counsel for TMG. As a condition of withdrawal, the Circuit Court required Robbins & Associates to sign the stipulation to dismiss the Prior Action. However, the stipulation included a statement that “TMG agrees that Robbins & Associates has provided no legal services on behalf of TMG in this matter since March 17, 2009.”
In 2013, Reading filed the pending action in the United States District Court for the District of Hawaii, contending that TMG had breached terms of the 2009 settlement documents.2 The 2009 settlement documents have been publicly filed. Reading is again represented by the Bronster Firm in this action.
On February 4, 2015, the Bronster Firm filed Reading‘s opening brief in this appeal. On February 20, 2015, the Bronster Firm informed TMG in writing that Robbins was joining the Bronster Firm as a partner, and that Robbins would be screened from participation in the pending action and would be apportioned no part of the fees. The Bronster Firm‘s letter requested that TMG confirm in writing its consent to the Brоnster Firm‘s continuing representation of Reading pursuant to Hawaii Rules of Professional Conduct (“HRPC” or Rules) 1.9 and 1.10. TMG did not provide oral or written consent. Robbins joined the Bronster Firm effective March 16, 2015.
On April 23, 2015, the Bronster Firm filed in the district court a notice of change of firm name, reflecting that the firm had changed its name to Bronster Fujichaku Robbins. On May 20, 2015, the Bronster Firm filed Reading‘s reply brief in the pending appeal. TMG then filed the instant motion to disqualify сounsel on June 24, 2015, asserting that Robbins is personally disqualified from representing Reading, and that Robbins’ disqualification is imputed to the Bronster Firm.
“Because [federal courts] apply state law in determining matters of disqualification, we must follow the reasoned view of the state supreme court when it has spoken on the issue.” In re Cty. of L.A., 223 F.3d 990, 995 (9th Cir. 2000).
The Hawaii Supreme Court has adopted the “substantial relationship” test for reviewing attorney disqualification whеre a representation may be adverse to the interests of a former client. See Otaka v. Klein, 71 Haw. 376, 791 P.2d 713 (1990). The substantial relationship test was codified in
Comment 3 to
Matters are “substantially related” for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the cliеnt‘s position in the subsequent matter. Information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying. Information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representations are substantially related. In the case of an organizational client, general knowledge of the client‘s policies and practices ordinarily will not preclude a subsequent representation; on the other hand, knowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation. A former client is not required to reveal the confidential information learnеd by the lawyer in order to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter. A conclusion 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.
TMG contends the pending appeal is substantially related to the Prior Action, which culminated in the 2009 settlement, in which Robbins was counsel for TMG. In particular, TMG points to Reading‘s argument before the district court and on appeal that the parties in the Prior Action had intended that TMG would not have a right to cure claimed breaches of the settlement documents. TMG further asserts that Robbins had confidential information related to the current action by virtue of his representation of TMG in the Prior Action, including TMG‘s strategies with respect to settlement.
Reading maintains that the current action is not substantially related to the Prior Action, because it asserts that Robbins did not personally participate in the drafting, negotiation, or execution of settlement documents in the Prior Action, Robbins’ firm was terminated as of March 17, 2009, and the current action involves only TMG‘s post-settlement performance of its obligations under the publicly filed 2009 settlement documents.
In the Prior Action, Robbins represented TMG until March 17, 2009. During the course of the representation, Robbins and his associate actively participated in mediation of the dispute that led to the broad settlement terms entered on the record in March 11, 2009. The pending appeal addresses alleged breaches of the final settlement documents finalized on July 2, 2009. Because the appeal raises issues of thе parties’ intent in entering into those settlement documents, the factual context of the two representations overlaps, and confi-
Accordingly, we conclude that the two representations are substantially related, and Robbins is barred from representing Reading in the pending appeal under
We must therefore determine whether Robbins’ disqualification is imputed to the Bronster Firm. When an attorney joining a new firm brings conflicts from his prior firm, imputed disqualification is governed by
The Hawaii Supreme Court has not yet spoken on the apрlicability or interpretation of
“Where the conditions of [
Reading contends that the phrase “the matter” in
All conditions of
We turn next to Reading‘s argument that TMG has waived its right to seek disqualification because it was aware of Robbins’ association with the Bronster Firm for four months before filing the motion to disqualify in this court. We disagree. The Bronster Firm notified TMG that Robbins was joining its firm on February 20, 2015, requested a written conflict waiver, and did not receive one. While the Bronster Firm filеd a notice of firm name change in the district court docket on April 2015, its next filing in this court on behalf of Reading was the reply brief filed on May 22, 2015. The disqualification motion was filed one month later on June 24, 2015. Under these circumstances, Reading has not met its burden to show that TMG has waived its right to seek disqualification of the Bronster Firm.
This court has warned that a “motion to disqualify a law firm can be a powerful litigation tactic to deny an opposing party‘s counsel of choice.” 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 “subjected to particularly strict judicial scrutiny“). We are mindful of the drastic nature of disqualification. See
A corporation must be represented by counsel. See In re Highley, 459 F.2d 554, 555 (9th Cir. 1972). Accordingly, within 35 days after the date of this order, appellant shall obtain new counsel and file a notice of appearance with the court.
The opening and answering briefs have been filed. We strike Reading‘s reply brief, filed May 22, 2015 after the disqualifying conflict arose. Reading may file a substitute reply brief within 35 days after new counsel‘s notice of appearance is filed with the court.