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Last year, as it became increasingly clear that Honolulu Police Chief Louis Kealoha and his wife, Katherine, a city prosecutor, were suspects in a federal criminal investigation, the couple turned to an unlikely ally: Myles Breiner.
Breiner is a local defense attorney, who grew up in Michigan and made a name for himself in Hawaii as a tough-talking advocate for his clients and their civil rights.
He has a long track record of suing the Honolulu Police Department and attacking the Department of the Prosecuting Attorney — an agency he once worked for — alleging serious abuses of power, from cover-ups of excessive uses of force to overzealous pursuit of criminal charges.
Breiner has also been a frequent guest on TV news programs where he tends to air his grievances against the police and prosecutors.
In 2014, during a news broadcast, he openly questioned whether the chief had overstepped his authority when officers from a special unit were assigned to investigate the theft of his mailbox. Federal authorities now believe the theft was a setup so that the chief and his wife could settle a personal score with a family nemesis.
That same year, he called Katherine Kealoha “incompetent” after he filed a lawsuit against Honolulu Prosecuting Attorney Keith Kaneshiro and his office for malicious prosecution in a high-profile gambling case that she was handling with a colleague.
Given the history, it might seem odd that Breiner is now defending the Kealohas in the face of possible criminal indictments by the U.S. Justice Department.
Breiner acknowledged that it was a surprise to get the call from the Kealohas. But he told Civil Beat that he decided to take their case as a favor to Katherine Kealoha, whom he described as a close, personal friend — despite the fact that they sometimes found themselves at odds on cases.
“I could see that she was really concerned and distressed,” Breiner said. “She turned to me and asked me if I would help her, and it seemed like the right thing to do. I never asked for anything in exchange. I didn’t say, ‘Give me inside information,’ or, ‘Cut me a deal.’ In fact, it was just the opposite. I had to be very careful not to expect anything from her in exchange.”
Still, Breiner’s decision to represent both the chief and his wife raises serious questions about conflicts of interest — not only whether he can effectively defend them from possible criminal charges, but also in how his advocacy might influence his handling of other cases in which his clients are suing Honolulu’s law enforcement agencies.
He admitted that striking the balance can be tricky. He worries that he might be targeted as part of the grand jury investigation as a result.
The Kealohas have been reluctant to discuss their ongoing legal troubles outside of a handful of interviews in which they maintained their innocence and complained that they were unfairly targeted for investigation because of their prominent positions in the community.
In a July interview with Civil Beat, Katherine Kealoha said she and her husband were the victims of overzealous prosecutors and a political smear campaign that bordered on a conspiracy. She also explained why she wanted Breiner to represent her despite the fact that they often find themselves at odds with one another.
“I have a really long history with Myles,” Kealoha said. “Myles is passionate because he believes in his clients. He is the best advocate that I know. He is not going to bend to political pressure.”
By taking the Kealohas’ case, Breiner has set out on a perilous ethical and legal path that could end up landing him in trouble.
For one thing, the Hawaii Rules of Professional Conduct prohibit attorneys from representing more than one client in situations that pose a “significant risk” of conflicts of interest.
But the rules provide an exception: The practice is allowed when attorneys get written waivers from their clients after going over the risks of “common representations.”
Still, when it comes to criminal matters, the rules are explicit: “The potential for conflicts of interest in representing multiple defendants in a criminal case are so grave that ordinarily a lawyer should decline to represent more than one co-defendant.”
Honolulu attorney Bill Harrison said he wouldn’t have taken the case, had the Kealohas come to him for help.
Harrison represents Niall Silva, a former HPD officer who admitted to helping frame Katherine Kealoha’s uncle, Gerard Puana, for the June 2013 theft of their mailbox. Silva pleaded guilty to federal conspiracy and has agreed to work with authorities.
“I don’t know what Myles was thinking, but I would never put myself in that situation,” Harrison said. “There’s always the possibility that the government may approach one of the witnesses or defendants in that case and ask that person to cooperate. It happens in almost every case. If that ever happens, if there was a potential conflict, now it’s right into a full-blown conflict.”
But Ken Lawson, an associate faculty specialist at the University of Hawaii law school, said Breiner can get around the conflict if he had the Kealohas sign a waiver.
“If both defendants are saying, ‘There’s absolutely no way I’m taking any type of deal. I’m going to trial. I’m never going to testify against the other,’ then that conflict can be consentable, so long as they’re informed about all the ramifications,” said Lawson, who also co-directs the Hawaii Innocence Project.
Breiner said he did have the Kealohas and other clients sign waivers and has consulted with the Office of Disciplinary Counsel about the waivers.
The chief has already received a target letter from the Justice Department telling him that a grand jury has found evidence that he may have committed federal crimes. While some attorneys might say that target letters are used in an attempt to get a suspect to come clean or flip on other co-conspirators, Breiner said the chief has absolutely no intention of doing so, especially against his wife.
“So the chief is going to rat out his wife? That’s ludicrous,” Breiner said. “They’re a happily married couple. They’ve been together for years.”
Randall Roth, a University of Hawaii law professor, pointed out that Breiner’s potential conflicts are not only concerns for the Kealohas, but also other parties in the case — as they could threaten the integrity of a legal action.
“It’s not uncommon that people on the opposing side get very concerned about a conflict of interest … worrying that it will taint the conviction or civil judgment,” Roth said.
Further compounding the situation for Breiner are the cases of his other clients, some of whom have accused police and prosecutors of wrongdoing in cases that put millions of taxpayer dollars at stake.
On Wednesday, U.S. District Court Judge Derrick Watson granted the city’s motion to remove Breiner from one case — a civil lawsuit in which he was representing two men who were beaten up in a Chinatown game room by undercover police officer Vincent Morre.
In his 33-page ruling, Watson agreed with city attorneys that Breiner’s “concurrent representation” of the two men and Louis Kealoha, who was initially named as a defendant, would be a “non-waivable conflict of interest.”
“Mr. Breiner’s ability to represent plaintiffs is materially limited as a result of his duty of loyalty to Kealoha,” Watson wrote. “Mr. Breiner’s divided loyalties present irreconcilable conflicts, and threaten a quagmire of additional conflicts, that prevent him from reasonably believing he could provide competent and diligent representation to each client under the particular circumstances of this case and prohibit him from, in effect, seeking client permission to continue.”
This isn’t the first case that the city tried to get Breiner removed from. City attorneys filed similar motions in at least two other federal lawsuits, both of which involved allegations of excessive force.
Just this week, the Honolulu City Council approved a $1 million settlement with the family of Stephen Dinnan, a Kaneohe man who was killed in 2014 by an HPD officer and an off-duty firefighter after being mistaken for a car thief.
Breiner represented Dinnan’s girlfriend and her children, while attorney Michael Green represented other relatives in the case.
But before the council approved the settlement, the city’s attorneys tried to get Breiner removed from the case, saying in court records that a conflict of interest would make it impossible for him to be loyal to either side.
Among their concerns was the fact that a criminal conviction of Louis Kealoha would benefit the plaintiffs in the Dinnan case. They also worried that any confidential information the chief shared with Breiner could in turn be used to bolster his arguments in other lawsuits.
City attorneys also raised another concern: How could Breiner simultaneously attack the chief’s credibility on the one hand and vociferously defend it on the other?
Breiner said city attorneys’ attempts to remove him from the civil cases are purely strategic on their part, considering his history of successfully arguing on behalf of his clients. He said Wednesday he was disappointed in Watson’s ruling, saying that his loyalties have never been divided.
Breiner said he expects to be removed from the other ongoing case against HPD. He noted that he has already lined up new counsel to take on his clients, and that he expects both cases to proceed.
“I steadfastly and vigorously defended my clients,” Breiner said. “This is politically motivated by corporation counsel. They had no problem settling the Dinnan case with me even though they filed a motion in that one.”
“The city will rue the day that they chose to politically sideline me,” he said.
Even as Breiner insisted that he does not have conflicts of interest, he conceded that, if the chief and his wife are indicted, he’ll likely have to drop them both as clients.
He doesn’t believe that will happen, however. He considers the Kealohas to be innocent victims of an overreaching federal prosecutor.
Breiner said he’s representing the Kealohas for free. He said he’s simply helping out a couple who’s fallen on hard times — even if others in his profession have been critical, saying that it could ruin his practice and diminish his reputation.
But Lawson said Breiner’s reputation was likely the very thing that attracted the Kealohas to him in the first place.
“When you have the federal government investigating you, and you have reasons to believe you may be indicted, and you have so much to lose as the Kealohas do, you seek out someone who you believe will go fight to the death on your behalf,” Lawson said.
“Because Myles has fought against these individuals for so long, I suspect that, when they found themselves on the other side of the table, he was the guy they went to. Whether you like him or not, he’s not a sellout.”