In late October, a city attorney representing three Honolulu police officers argued in court that the officers were not liable for the shooting death of Kyle Thomas because they were acting within the scope of their employment.
That day, the same attorney, who was also representing the City and County of Honolulu in the same civil rights lawsuit, argued that the case against the city should be thrown out because the officers were not acting within their scope of employment when Thomas, 26, was shot to death in Mililani on Feb. 20, 2019.
This week, Magistrate Judge Kenneth Mansfield removed that city attorney, Kyle Chang, from the case for creating a conflict of interest.
“Mr. Chang divided his loyalties when he asserted conflicting legal positions on behalf of his clients,” Mansfield wrote on Tuesday in the order disqualifying Chang from the case. “The Court thus finds that Mr. Chang cannot reasonably believe that he can provide competent and diligent representation to the City and the Officer Defendants under the particular circumstances of this case.”
Mansfield’s decision came nearly a month after Eric Seitz, the attorney representing Thomas’s family, filed a motion to disqualify Chang because of his contradictory arguments made on behalf of the city and three officers — Chance Correa, Ronald Dumlao and Jose Villanueva.
The Department of Corporation Counsel, the chief legal adviser and representative of the city and its agencies, is now reviewing Mansfield’s decision to determine whether another member of the city’s legal department can take over the case or if they will have to retain an attorney from outside of the department.
“We respect the judge’s decision and we are trying to determine the next steps to properly handle this case for the benefit of all the parties involved,” Deputy Corporation Counsel Krishna Jayaram told Civil Beat on Wednesday.
The decision for Chang to represent both the officers and the city simultaneously was made by Corporation Counsel, but the Honolulu Police Commission is the agency that determines whether they will be offered city-sponsored representation.
The commission is tasked with deciding whether a police officer is entitled to the city’s legal representation when named in a lawsuit or prosecuted for a crime, a decision based on whether the commission determines that their actions were committed in the line of duty. The commission also reaches out to Corporation Counsel for a recommendation regarding that decision.
On July 7, the commission unanimously voted to offer Corporation Counsel representation to all three officers named in the lawsuit, which alleges that the officers wrongfully attempted to arrest Thomas, used excessive force, and violated his due process rights.
Once the decision is made for the city to represent the officers, it is completely up to Corporation Counsel to determine the best defense strategies to use.
“It’s relatively case-specific and fact-specific,” Jayaram said. “If the facts are a certain way there is no reason that one attorney can’t represent all the parties because all their interests are aligned.”
However, Seitz strongly disagreed.
Seitz told Civil Beat that he believes Corporation Counsel’s simultaneous representation of the officers and the City and County of Honolulu was problematic in itself, but the opposing claims made by Chang are what put him over the edge.
“They’ve gotten cheap and, more importantly, they haven’t bothered to adhere to the ethical requirements. They tried to basically dominate these cases by having one lawyer from Corporation Counsel represent everybody and that’s not permissible,” Seitz said. “I’ve let it go for purposes of trying to settle cases, and very often we’ve been able to do that, but I can’t let it go anymore because the tactics that they’re engaging in are so unethical and disreputable that at this point in time, we filed this motion and the judge ruled as he did.”
Seitz said he has three other cases pending in which he expects to take the same position against Corporation Counsel representing both the city and the officers involved.
“This is just an early step in one case and I’m hopeful that we can resolve some of those cases. But if they’re going to continue to try to represent everyone in those cases, which creates barriers and problems and potential liabilities down the road, then we’re going to have serious problems,” he said.
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