Last week’s surprising motion by the lead attorney for former Honolulu business owner Michael J. Miske Jr. to withdraw from the legal team representing the accused racketeering boss remains unexplained.

In his court filing, attorney Thomas Otake said information disclosed to him by the government just one day previously revealed a conflict of interest that triggered his request to drop out of the case. And he specifically said his request to withdraw was not because of the conflict alleged by the government in its motion to disqualify both Otake and his co-counsel, Lynn Panagakos, due to their involvement in soliciting and submitting character reference letters for Miske, two of which are now alleged to be fraudulent.

So what are the types of conflicts that could disqualify a defense attorney in a criminal case like this, especially with the scheduled beginning of the trial now just three months away?

Checking around online, I found a law review article on point, “Disqualifying Defense Counsel“.

In criminal cases, the lawyer is typically in jeopardy of disqualification in the following four ethical dilemmas:

(1) when the lawyer represents two or more codefendants (a concurrent client conflict of interest);

(2) when the lawyer represents a prosecution witness or has previously represented a prosecution witness in the same or a related matter (a concurrent or former client conflict of interest);

(3) when the lawyer has previously represented the government in the matter or has otherwise obtained helpful confidential information while working for the government (a former client conflict of interest); and

(4) when the lawyer will be a necessary witness in the trial (a lawyer-as- witness role conflict).

These are the most common situations, although disqualification issues arise in many other situations. For example, the lawyer might also face disqualification: when the lawyer is implicated in criminal or professional misconduct in the matter; when the lawyer’s financial interests strongly conflict with the defendant’s interests; or when the lawyer has entered into a joint defense agreement (JDA) with another defendant, who then turns state’s evidence and against whom the lawyer may not use the information learned through the JDA to cross-examine her.

Statistics cited in the article indicate the most frequent conflict is #2 above, a conflict created when a current or former client in a related matter becomes a prosecution witness.

On Tuesday, December 17, Assistant U.S. Attorney Mark Inciong filed an “ex parte in camera presentation” for review by Magistrate Judge Kenneth Mansfield which suggests this type of conflict is behind Otake’s request to withdraw from Miske’s case.

“Ex parte in camera” means the filing is for the judge to review without being disclosed to the defendants or the public.

In a cover memo, Inciong said the filing consists of “documents which contain information about an individual who may be a potential trial witness for the United States” in the Miske case. The timing of this filing strongly suggests it describes the conflict of interest that led to Otake’s departure from the case.

Based on Otake’s statement that the as-yet publicly undisclosed conflict does not affect Panagakos, it would appear that a current or former client of his has only lately been identified as a witness against Miske, his current client.

It would appear that this must be an important potential witness to create what must be an obvious and serious conflict.

Does it indicate an important new dimension to the prosecution’s case? Perhaps a new cooperating witness as a result of another plea bargain? There are lots of possiblities, and it seems likely that we’ll know more soon.

See:

Miske’s Legal Defense Team In Disarray Amidst Alleged Conflicts Of Interest, Civil Beat, 1-13-2023

The reason Miske’s lead attorney wants to withdraw has not been disclosed, iLind.net, 1-15-2023

The government’s motion to disqualify Miske’s defense counsel, iLind.net, 1-15-2023