Opinion
20-cr-00266-JST-1
03-04-2024
UNITED STATES OF AMERICA, Plaintiff, v. MICHAEL BRENT ROTHENBERG, Defendant.
ORDER GRANTING MOTION TO APPOINT ADVISORY COUNSEL AND DENYING MOTION TO WITHDRAW AS MOOT RE: ECF NOS. 366
JON S. TIGAR United States District Judge
Before the Court is attorney Hanni M. Fakhoury's motion to appoint advisory counsel to represent Defendant Michael Rothenberg, or in the alternative to withdraw from the representation and for the appointment of substitute counsel. ECF Nos. 366, 377.
Fakhoury bases his motion on a potential conflict of interest. He states that when he was preparing Rothenberg's post-trial motions, “Mr. Rothenberg wanted to know whether he could raise ineffective assistance of counsel as a basis for a motion for a new trial.” ECF No. 367-3 ¶ 6. Fakhoury notes that Courts have granted Rule 33 motions for new trial based on ineffective assistance of trial counsel but argues that “[n]either [he] nor [his co-counsel] Mr. Torres can give Mr. Rothenberg advice on whether he should raise ineffective assistance of counsel as a basis for a Rule 33 motion for new trial, let alone actually assert an ineffective assistance of counsel claim.” Id. ¶¶ 7-8 (citing United States v. Shayota, No. 15-CR-00264-LHK, 2017 WL 1861889, at *9 (N.D. Cal. May 9, 2017)). Fakhoury contends that “Rothenberg's pursuit of an ineffective assistance of counsel claim would go against [his] own interests, as well as the interests of Mr. Torres,” and would violate California Rule of Professional Conduct 1.7(b). Id. ¶ 9. He requests the Court to appoint advisory counsel to guide Rothenberg in pursuing an ineffective assistance of counsel claim. Id. ¶ 10.
In light of the conflict of interest outlined above, the Court finds good cause for the appointment of advisory counsel solely for the limited purpose of reviewing the facts of the case and advising Rothenberg regarding the potential for a claim of ineffective assistance of counsel. Attorney Fakhoury's motion for the appointment of advisory counsel is granted. His motion in the alternative for permission to withdraw is denied as moot.
IT IS SO ORDERED.