CHUUK STATE SUPREME COURT TRIAL DIVISION

Cite as Chuuk v. Robert, 15 FSM Intrm. 419 (Chk. S. Ct. Tr. 2007)

[15 FSM Intrm 419]

CHUUK STATE,

Plaintiff,

vs.

ROMAN ROBERT,

Defendant.

CSSC CRIMINAL CASE NO. 117-2007

ORDER DENYING MOTIONS TO DISMISS AND TO DISQUALIFY, ORDER SETTING TRIAL DATE

Keske S. Marar

Associate Justice

Hearing: October 29, 2007

Decided:  November 7, 2007

APPEARANCES:

For the Plaintiff:        Charleston Bravo

                                 Assistant Attorney General

                                 Office of the Chuuk Attorney General

                                 P.O. Box 1050

                                 Weno, Chuuk FM 96942
 

For the Defendant:   Fredrick A. Hartman

                                 Office of the Public Defender

                                 P.O. Box 754

                                 Weno, Chuuk FM 96942

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HEADNOTES

Attorney and Client ) Discipline and Sanctions; Attorney and Client ) Disqualification of Counsel

      The Model Rules of Professional Conduct provide rules of reason, which should be interpreted with reference to the purposes of legal representation and of the law itself. The rules are thus partly obligatory and disciplinary and partly constitutive and descriptive. The MRPC does not provide binding rules of law, but the numerous FSM cases addressing the issue of disqualification of government lawyers are binding the court according to the rule of stare decisis. Chuuk v. Robert, 15 FSM Intrm. 419, 422 n.1 (Chk. S. Ct. Tr. 2007).

Attorney and Client ) Disqualification of Counsel

      Except as law may otherwise expressly permit, a lawyer must not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. When a client is a government agency that agency is treated as a private client for the purposes of the rule if the lawyer

[15 FSM Intrm 420]

thereafter represents another government agency. Chuuk v. Robert, 15 FSM Intrm. 419, 422-23 & n.2 (Chk. S. Ct. Tr. 2007).

Attorney and Client ) Disqualification of Counsel

       No lawyer in a firm with which a former government lawyer is associated may knowingly undertake or continue representation in a matter in which the former government lawyer participated personally and substantially as a public officer or employee unless 1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and 2) written notice is given as soon as practicable in order to give the government agency a reasonable opportunity to ascertain compliance with the rule. Chuuk v. Robert, 15 FSM Intrm. 419, 423 & n.3 (Chk. S. Ct. Tr. 2007).

Attorney and Client ) Disqualification of Counsel

      The policy behind the waiver and screening provisions are intended to provide a means for government lawyers to continue in public service by not unduly restricting changes in their employment. Thus the rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government since the government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards. The provisions for screening and waiver are necessary to prevent the disqualification rule from imposing too severe a deterrent against entering public service. Thus, in the case of government lawyers, the notice and screening provisions provide a favored means to prevent the vicarious, or imputed, disqualification of an entire office when one of its lawyers has a conflict. Chuuk v. Robert, 15 FSM Intrm. 419, 423 (Chk. S. Ct. Tr. 2007).

Attorney and Client ) Disqualification of Counsel

      The disqualification of all lawyers in a government office when one of them is disqualified is a question within the trial courtís discretion. Chuuk v. Robert, 15 FSM Intrm. 419, 423 (Chk. S. Ct. Tr. 2007).

Attorney and Client ) Disqualification of Counsel

      In deciding a motion to disqualify, the court must render its decision in a manner consistent with the FSMís social and geographical configuration. While the FSM is a nation of large geographical distances, it has a small land base, a small population, and limited resources and it also has a small government legal office and few other lawyers available. Thus the court, consistent with the FSMís social and geographical configuration, should not order the government to go outside its office for an attorney unless it is absolutely necessary. Chuuk v. Robert, 15 FSM Intrm. 419, 423 (Chk. S. Ct. Tr. 2007).

Attorney and Client ) Disqualification of Counsel

      The rules for vicarious disqualification of attorneys in the same law firm do not apply to government lawyers; disqualification of one government office member is not imputed to the other members. With respect to cases involving a disqualified supervising attorney, individual rather than vicarious disqualification is the general rule but individual disqualification must be complete and any participation or anything less than complete abstention by a disqualified member of a prosecutorís office in a supervisory capacity would warrant disqualification of the entire office. Thus, unless the court is satisfied that a supervising attorney has not participated in and has completely abstained from a legal matter, the supervising attorneyís entire office warrants disqualification. Chuuk v. Robert, 15 FSM Intrm. 419, 424 (Chk. S. Ct. Tr. 2007).

Attorney and Client ) Disqualification of Counsel

      Since cases where vicarious disqualification of government attorneys is warranted often are

[15 FSM Intrm 421]

predicated on the supervising attorneyís personal or emotional interest, bias, or involvement in the case and consequent issues regarding the supervising attorneyís attempt to influence the caseís outcome, when the disqualified Chief Public Defender did not have any actual communication with the FSM Public Defenderís Office Chuuk branch regarding the substance of the case and the only contact he had with the Chuuk Branch Public Defenderís Office was to assign the case according to the defendantís request; when there is no suggestion that he had a personal or emotional interest that would lead him to attempt to influence its outcome and the court is unable to discern that he had done anything other than completely abstain from any participation in the action; when the Chuuk branch is in a separate office hundreds of miles from the Chief Public Defenderís Office in Pohnpei, which in effect creates a natural screen from any accidental disclosures between the FSM Public Defenderís Office and its Chuuk branch office regarding the caseís substance although they are part of the same "office" for MRPC and vicarious disqualification purposes, and since the policy behind Rule 1.11 is to ensure the continuing service of government attorneys when they change employment and to disqualify them only if it is absolutely necessary, disqualification of the entire FSM Public Defenderís Office, including the Chuuk office, is not warranted since the court found no evidence the Chief Public Defender participated in handling the defense. Chuuk v. Robert, 15 FSM Intrm. 419, 424 & n.5 (Chk. S. Ct. Tr. 2007).

Criminal Law and Procedure ) Dismissal

      The filing of a criminal information against a legislator who is the chairman of an impeachment committee while there is an article of impeachment currently being investigated does not will not be dismissed on the basis of a statute that provides criminal penalties for attempting to interfere with the impeachment process since the statute could not provide a blanket protection against prosecution for any member of an impeachment proceeding or it would lead to the absurd result that a member of an impeachment proceeding could commit any crime with impunity. Chuuk v. Robert, 15 FSM Intrm. 419, 425 (Chk. S. Ct. Tr. 2007).

Constitutional Law ) Equal Protection; Criminal Law and Procedure ) Defenses

      A selective prosecution claim does not provide a basis for dismissal of the information because it is not a defense to the merits to the criminal charge itself, but an independent claim. Chuuk v. Robert, 15 FSM Intrm. 419, 425 (Chk. S. Ct. Tr. 2007).

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COURTíS OPINION

KESKE S. MARAR, Associate Justice:

      On October 29, 2007, the court heard oral argument on Defendantís motion to dismiss and on the Governmentís motion to disqualify. The court denied Defendantís motion to dismiss and took the Governmentís motion to disqualify under advisement. The court now denies the Governmentís motion to disqualify. The reasons for the denial of each motion follow.

Procedural Background

1.  On August 10, 2007, the Government filed its criminal information against Roman Robert alleging seven Counts relating to Robertís conduct with respect to travel funds while a member of the state legislature.

2.  On August 30, 2007, the Government filed a motion to disqualify the entire FSM Public Defenderís Office including the branch office in Chuuk, which is handling Robertís case.

[15 FSM Intrm 422]

3.  On September 20, 2007, Defendant filed his opposition to the motion.

4.  On September 26, 2007, Defendant Roman Robert filed his motion to dismiss pursuant to "Section 419 of the T.S.L. No. 6-66, as amended."

5.  On October 3, 2007, the Government filed its opposition to Robertís motion to dismiss.

The Governmentís Motion to Disqualify

I.  Factual Bases for Motion

       In its motion to disqualify, the Government asserts that the entire Public Defenderís Office of the FSM should be disqualified from representing Roman Robert in this case because the current Chief of the FSM Public Defenderís Office, Mr. Julius J. Sapelalut, was the Chief of the Division of Litigation of the Chuuk State Attorney Generalís Office from February to his resignation on July 27, 2007. See Govítís Points & Auths. at 2. According to the motion, sometime in February, 2007, the Governmentís current counsel, Mr. Charleston Bravo, consulted with Mr. Sapelalut regarding the police report and other documents relating to the case against Roman Robert, and discussed probable indictments and supporting evidence. Id. Afterwards, Mr. Sapelalut is asserted to have reviewed a file relating to the case that would be brought against Roman Robert. Id. From this, the Government argues that the Model Rules of Professional Conduct require the disqualification not only of Mr. Sapelalut from representing Roman Robert, but of the entire FSM Public Defenderís Office, including not only Mr. Sapelalutís office in Pohnpei, but the branch offices in each state, including the one in Chuuk.

      In its opposition brief, Roman Robert asserts that Mr. Sapelalut has not consulted with the counselors in the Chuuk Public Defenderís Office regarding the defense of this case and his only contact with the Chuuk Public Defenderís Office regarding this case has been to approve its handling of the case according to Robertís request. Aff. of Chuuk Public Defenderís Office Acting Officer-in-Charge, Kachie Sana, ∂ 3. Although Mr. Sapelalut was informed that the Government had filed a motion to disqualify, he did not communicate with the Chuuk Public Defendersí Office regarding its substance or otherwise respond to it in any way. Id. ∂ 6.

II.  Legal Grounds for Motion

      The grounds for asserting that the entire FSM Public Defenderís Office should be disqualified from defending Roman Robert are that such representation violates the Model Rules of Professional Conduct Rule 1.11(a) and (b). MRPC Rule 1.11(a) provides:

Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and

[15 FSM Intrm 423]

substantially as a public officer or employee, unless the appropriate government agency consents after consultation.No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:

(1)  the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2)  written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this Rule.

MRPC Rule 1.11(b) provides, similarly, with respect to lawyers who obtain actual knowledge of "confidential government information" about a person, that a lawyer with such information is disqualified from subsequently representing a client with an adverse interest to that person in a matter in which the information could be used to the material disadvantage of that person. The provision further provides: "A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom."

      The Comments to MRPC Rule 1.11 address the policy behind the waiver and screening provisions, which are intended to provide a means for government lawyers to continue in public service by not unduly restricting changes in their employment:

However, the rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government. The Government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards. The provisions for screening and waiver are necessary to prevent the disqualification rule from imposing too severe a deterrent against entering public service.

      Thus, in the case of government lawyers, the notice and screening provisions provide a means, favored by the Ethics Committee, to prevent the vicarious, or imputed, disqualification of an entire office when one of its lawyers has a conflict.

III.  The Law

      The disqualification of all lawyers in a government office when one of them is disqualified is a question within the trial courtís discretion. FSM v. Kansou, 14 FSM Intrm. 273, 278 (Chk. 2006); FSM v. Wainit, 12 FSM Intrm. 376, 383 (Chk. 2004). In deciding a motion to disqualify, the court must render its decision in a manner consistent with the FSMís social and geographical configuration. Kansou, 14 FSM Intrm. at 278. While the FSM is a nation of large geographical distances, it has a small land base, a small population, and limited resources. It also has a small government legal office and few other lawyers available. The court, consistent with the FSMís social and geographical configuration, thus should not order the government to go outside its office for an attorney unless it is absolutely necessary. Id.

[15 FSM Intrm 424]

      The rules for vicarious disqualification of attorneys in the same law firm do not apply to government lawyers; disqualification of one government office member is not imputed to the other members. In re Extradition of Jano, 6 FSM Intrm. 26, 27 (App. 1993). Although distinguishable on its facts from the case at bar, the leading case in Chuuk on the issue of vicarious disqualification of government attorneys is FSM v. Wainit, 12 FSM Intrm. 376 (Chk. 2004). With respect to cases involving a disqualified supervising attorney, the FSM v Wainit court stated: "Individual rather than vicarious disqualification is the general rule but individual disqualification must be complete and any participation or anything less than complete abstention by a disqualified member of a prosecutorís office in a supervisory capacity would warrant disqualification of the entire office." Wainit, 12 FSM Intrm. at 381 (emphasis added); see also FSM v. Kansou, 14 FSM Intrm. 273, 276 (Chk. 2006) (following FSM v. Wainit ("any participation or anything less than complete abstention by a disqualified member of a prosecutorís office in a supervisory capacity would warrant disqualification of the entire office")). Thus, unless the court is satisfied that a supervising attorney has not participated in and has completely abstained from a legal matter, the supervising attorneyís entire office warrants disqualification.

IV.  Application of Law to Facts

      The Public Defenderís Officeís affirmative efforts to screen Mr. Sapelalut from this case and provide notice to the Government of its efforts may be considered deficient in this matter. The Government does not, however, suggest that Mr. Sapelalut had any actual communication with the Chuuk branch of the FSM Public Defenderís Office regarding the substance of this case. Indeed, as stated in the affidavit of Kachie Sana, the only contact Mr. Sapelalut had with the Chuuk Branch Public Defenderís Office was to assign the case according to Robertís request. Cases where vicarious disqualification is warranted often are predicated on the supervising attorneyís personal or emotional interest, bias, or involvement in the case and consequent issues regarding the supervising attorneyís attempt to influence the outcome of the case. See Wainit, 12 FSM Intrm. 376 and cases cited therein. In this case, there is no suggestion that Mr. Sapelalut has a personal or emotional interest that would lead him to attempt to influence its outcome and the court is unable to discern that Mr. Sapelalut has done other than completely abstain from any participation in the action.

      The court further notes that the Chuuk Branch of the Public Defenderís Office is in a separate office hundreds of miles from the Chief Public Defenderís Office in Pohnpei. The geographical distance between the two offices creates a natural screen from any accidental disclosures between the FSM Public Defenderís Office and its branch office in Chuuk regarding the substance of the case. Finally, the policy behind Rule 1.11 is to ensure the continuing service of our government attorneys when they change employment and to disqualify them only when it is absolutely necessary. MRPC Rule 1.11 cmts; Kansou, 14 FSM Intrm. 273; FSM v. Wainit, 12 FSM Intrm. 376.

      The court, finding no evidence that Mr. Sapelalut participated in handling the case for the defense, therefore finds that the disqualification of the entire FSM Public Defenderís Office, including the Chuuk office, is not warranted under the circumstances.

[15 FSM Intrm 425]

Defendant Robertís Motion to Dismiss

       Defendantís motion to dismiss was brought pursuant to Chk. S.L. No. 2-94-28, ß 10 (1), which provides for criminal penalties against a person who attempts "to influence or interfere with the adoption of articles of impeachment, the operation of a court of impeachment, or in any other way the impeachment process, either directly or indirectly, by threatening, intimidating or attempting to injure any person associated with the impeachment process." According to the motion, the Government violated Chk. S.L. No. 2-94-28, ß 10 by filing its criminal information against Robert when they were aware he was Chairman of the Impeachment Committee and there is an Article of Impeachment currently being investigated. Motion to Dismiss, ∂ 4.

       Robert does not present any authority to support his argument that the filing of a criminal information constitutes a violation of Chk. S.L. No. 2-94-28, ß 10 or similar provision, and the court was unable to find any such authority during the course of its own research. Obviously, Chk. S.L. No. 2-94-28, ß 10 could not provide a blanket protection against prosecution for any member of an impeachment proceeding or it would lead to the absurd result that a member of an impeachment proceeding could commit any crime with impunity. Indeed, Robertís calling into question the Governmentís exercise of prosecutorial discretion in filing a criminal information against him may be more appropriately considered under the doctrine of "selective prosecution" than under the cited statute. Robertís argument is, in effect, that he was selectively prosecuted because of his membership on an impeachment committee. Such a claim does not provide a basis for dismissal of the information because it is not a defense to the merits to the criminal charge itself, but an independent claim. See FSM v. Fritz, 14 FSM Intrm. 548, 552 (Chk. 2007). For the purpose of Robertís motion to dismiss, therefore, the court found insufficient grounds to grant it.

Conclusion

      It was so ordered.

      It is further ordered:

      Trial is re-scheduled to begin on December 3, 2007 at 9:00 a.m. If either party has any objections to this trial date they must provide written notice to the court within ten days of entry of this order.

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Footnotes:

1.  The court notes the Government cites only the Model Rules of Professional Conduct in support of its motion. The MRPC provides "rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself . . . . The rules are thus partly obligatory and disciplinary and partly constitutive and descriptive . . . ." MRPC pmbl. The MRPC does not provide binding rules of law. The numerous FSM cases addressing the issue of disqualification of government lawyers are, however, binding on the court according to the rule of stare decisis.

2.  The Comments to Rule 1.11 specify that when a client is an agency of the government that agency should be treated as a private client for the purposes of the rule if the lawyer thereafter represents another government agency.

3.  The Comments to Rule 1.11(a)(2) address the timing for the written notice, which should be given "as soon as practicable" in order to give the government agency a reasonable opportunity to ascertain compliance with the rule.

4.  In FSM v. Wainit, the Court addressed whether disqualification of an assistant attorney general required recusal of the attorney general and his other assistants. 12 FSM Intrm. 376 (Chk. 2004).

5.  For the purposes of the MRPC and the issue of vicarious disqualification, however, the courtís analysis is based on the assumption that the office in Pohnpei and the office in Chuuk are part of the same "office" despite their geographical isolation from each other.

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