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HomeMy WebLinkAboutCOM 0009.002 2014-20161003 5i5hop Street, Suite 2300! Honolulu, Hi 9681 3 Phone 808.524.5644 12 Fax 808.599.188 1 Bronst Hoshibata January 22, 2015 County Council County of Hawaii 25 Aupuni Street, Suite 1402/2402 Hilo, HI 96720 Re: Hawaii Floriculture and Nursery Association et al. vs. County of Hawaii, Civil No. 14 -1 -00267 BMK Dear Councilmembers: We represent the Plaintiffs in this matter. We are writing because we understand that the County Council may seek to retain Paul Achitoff of Earthjustice to represent the County of Hawaii on the appeal of Judge Kurren's ruling in this lawsuit. Because Mr. Achitoff would have an untenable conflict if he were to represent the County in this appeal, we urge you to decline Mr. Achitoff's illusory offer of "free" representation. Mr. Achitoff is the managing attorney of Earthjustice's Mid - Pacific regional office. Mr. Achitoff has been counsel of record for Center for Food Safety ( "CFS ") and other amici curiae in this case and in the other federal actions involving the Kauai County and Maui County ordinances purporting to regulate genetically engineered crops. At the December 17, 2014, Hawaii County Council hearing, Mr. Achitoff testified that Earthjustice was interested in representing the County in the appeal of Judge Kurren's ruling in this case. He said he would represent the County for "free ", but the County would have to pay litigation costs. He did caution that he would have to "jump through some hoops" within his organization,to get ultimate approval. Later during the hearing the Council voted to pursue the appeal. Comm. No. 9. z Ref. To:_ RXVIAAALU Ref. Date FEB 0 4 2nIS County Council County of Hawaii January 22, 2015 Page 2 Mr. Achitoff's potential representation of the County would create a conflict of interest situation under the Hawaii Rules of Professional Conduct ( "HRPC "). The HRPC outlines the test to determine when a lawyer cannot adequately protect a client's interests because of a conflict of interest that cannot be waived by client consent. The Rules state: "When 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. Here, a conflict of interest may exist where Earthjustice has represented that its longtime client, CFS, has interests that are different from those held by the County. In the motion to intervene that Mr. Achitoff filed on behalf of CFS in federal court in this action, he stated that the County's interests are quite different from those of CFS: Not only are Proposed Intervenors and their members' interests narrower than that of the County Defendant, but in other ways they are also broader than the County's interests. Proposed Intervenor CFS has over half - million members across the country who are closely watching this case and have a significant stake in its outcome. For those CFS members, an adverse decision by this Court could affect their own ability to in the future enact ordinances creating GE -free zones like Ordinance 13- 121.... Other CFS members live in counties that have already passed ordinances that go further than Ordinance 13 -121 and prohibit all GE crops, such as some counties in California, Oregon, and Washington. Id. Those members also have distinct interests, as an adverse decision in this case could erode their own hard -won protections. Defendant County does not represent these broader interests. Memorandum in Support of Motion of Center For Food Safety et al. for Leave to Intervene filed Aug. 1, 2014, at 27 (emphasis added). Put another way, the County is a government entity charged with balancing multiple competing interests; Earthjustice and CFS are advocacy groups with strong and distinctive policy interests. As such, they have no need to balance these policy interests against other considerations, even in circumstances where such balancing is in the best interest of a local government entity and the citizens that it represents. In addition to the differing interests of the County and CFS (as described by CFS and Earthjustice in their own court filing), Earthjustice's (and presumably Mr. Achitoff's own personal) interests in pursuing litigation for the County Council County of Hawaii January 22, 2015 Page 3 sake of achieving favorable legal precedent create a conflict of interest barring representation. On its website, Earthjustice states that it has represented hundreds of public interest clients, including community -based organizations, national environmental organizations and public health groups, but not one county or local government is listed as a past or present client. This should be a clear warning bell that municipalities have been wary of allowing Earthjustice to highjack litigation by representing them in court. In addition to divergent litigation interests, other conflicts would plague Mr. Achitoff's representation of the County. Even if Mr. Achitoff works "for free" for the County, he certainly would continue to be paid his salary by Earthjustice, creating dual loyalties. Moreover, there would be no attorney - client privilege as between the County and CFS for communications with Mr. Achitoff. In other words, any legally privileged communications between the County and Mr. Achitoff - including communications implicating citizens' privacy or other very sensitive issues - could be shared with CFS at any time. These would include communications between Mr. Achitoff and members of the County Council, as well as with attorneys from the Office of the Corporation Counsel. And Mr. Achitoff would be required to immediately withdraw as counsel for the County when an irreconcilable conflict does arise during the course of dual representation, disrupting the County's case. These complications would materially limit Mr. Achitoff's representation of the County, creating an unwaivable conflict of interest under the HRPC. These problems can be altogether avoided, however, if the County Council simply says no to Mr. Achitoff, and permits the Office of the Corporation Counsel to continue to represent the County in the appeal. Thank you for your attention to this critical matter. Please contact us in the event that you have any questions. Very truly yours, Margery S. Bronster Rex Y. Fujichaku cc: Katherine Garson, Esq.