[24 FSM R. 98]

APPEAL CASE NO. C1-2023

Argued: May 1, 2023
Decided: May 1, 2023
Entered: May 2, 2023

BEFORE:

Hon. Beauleen Carl-Worswick, Associate Justice, FSM Supreme Court
Hon. Larry Wentworth, Associate Justice, FSM Supreme Court
Hon. Dennis L. Belcourt, Associate Justice, FSM Supreme Court

APPEARANCES:

For the Petitioner:                  Salomon M. Saimon, Esq.
                                              P.O. Box 911
                                              Kolonia, Pohnpei FM 96941

For the Respondent:             Jeffrey S. Tilfas, Esq.
                                              Assistant Attorney General
                                              FSM Department of Justice
                                              P.O. Box PS-105
                                              Palikir, Pohnpei FM 96941

For Real Party in Interest:     Daniel J. Rescue, Jr., Esq.
                                              Ramp & Mida Law Firm
                                              P.O. Box 790
                                              Weno, Chuuk FM 96942

HEADNOTES

Attorney and Client – Disqualification of Counsel

It is the attorney's responsibility, in consultation with his clients, to determine where his obligations and duties lie. This includes the initial determination if a client's representation will result in a conflict of interest. If an attorney nonetheless takes up the representation in the face of a conflict of interest, the burden is on the former client to seek disqualification. Hashiguchi v. Lambert, 24 FSM R. 98, 99 (App. 2023).

Attorney and Client – Disqualification of Counsel

A lawyer who has formerly represented a client in a matter cannot thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the former client's interests unless the former client consents after consultation; or use information relating to the representation to the former client's disadvantage except as Rule 1.6 would permit or when the information has become generally known, and a lawyer cannot 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. Hashiguchi v. Lambert, 24 FSM R. 98, 100 (App. 2023).

Attorney and Client – Disqualification of Counsel; Elections – Contests

The court will not disqualify an attorney that represented the FSM's national election office and the national election director from December 2020, to December 2021, from his current representation of a candidate in the March 7, 2023 election when there has been no showing that the attorney represented the national election director in connection with the March 7, 2023 election and there was no showing that the attorney's current representation of the candidate is materially adverse to the national election director. Hashiguchi v. Lambert, 24 FSM R. 98, 100 (App. 2023).

COURT'S OPINION

PER CURIAM:

This case came to be heard by the Court on May 1, 2023. At issue in this Order is the Respondent's motion questioning the ability of Salomon Saimon, Esq., to represent the Petitioner. For the reasons stated below, and as the Court stated from the bench on May 1, 2023, we conclude that Saimon is not disqualified. This Order memorializes that decision.

This case arose from an election for Chuuk's 3rd congressional district that was held on March 7, 2023. The candidates included Perpetua Konman, who is the incumbent, and Myron Hashiguchi. Konman was declared to be the winning candidate. This appeal was taken from a post-election decision by the national election director denying Hashiguchi's request for a revote for the special polling places in Guam and Honolulu, Hawai'i. One basis for the requested revote is that there were purportedly voters in both places who were turned away from those special polling places on election day because their names were allegedly not on, or could not be found on, the voter signature lists used by the election workers.

In his April 24, 2023 filing, the Appellee – just short of seeking Saimon's disqualification – asks that the Court counsel Saimon about the apparent conflict of interest that he purportedly faces in connection with his current representation of the Petitioner, with his prior representation of the Appellee. However, and as this Court has previously explained, it "is the attorney's responsibility, in consultation with his clients, to determine where his obligations and duties lie . . . ." In re Sanction of Woodruff, 9 FSM R. 414, 415 (App. 2000). This includes the initial determination if a client's representation will result in a conflict of interest. If an attorney nonetheless takes up the representation in the face of a conflict of interest, the burden is on the former client to seek disqualification. FSM Dev. Bank v. Ehsa, 18 FSM R. 388, 391 (Pon. 2012) (to disqualify a former attorney, a former client need only show than that the matters embraced within the pending suit wherein his former attorney now appears on behalf of an adversary are substantially related to the matters or the cause wherein the attorney previously represented the former client).

That aside, to the extent that the Appellee's motion can be deemed a motion to disqualify Saimon from representing the Petitioner in this matter, it appears that there is no basis to do so. Under Rule 1.9 of the Court's Model Rules of Professional Conduct, a lawyer who has formerly represented a client in a matter shall not thereafter:

a) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation; or

b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.

Rule 1.11 of the Court's Model Rules of Professional Conduct further provides that a lawyer shall 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.

In this case, there is no dispute that Saimon represented the FSM's national election office, including the national election director, from December 2020, to December 2021.¹ Otherwise, however, Saimon has no apparent connection to the Appellee with regard to his current representation of the Petitioner. Indeed, there has been no showing that Saimon represented the national election director in connection with the March 7, 2023 election; nor has there been any showing that Saimon's representation of the Petitioner in the matter at hand is materially adverse to the Appellee. See Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 453 (Pon. 2018) (moving party bears the burden of proving facts that establish the necessary factual prerequisite for disqualification; counsel will not be disqualified simply because the opposing party alleges the possibility of differing interests); See also Ehsa, 18 FSM R. at 391 (courts must be cautious when considering motions to disqualify counsel because of the possibility that the motion may be abused as a technique of harassment). This is a different election, with different candidates than the election for which the national election office employed Saimon.

Accordingly, and under these circumstances, the Court denied the Appellee's apparent request to disqualify Saimon from representing the Petitioner in this matter.

Footnotes:

¹ In connection with his opposition to the Appellee's apparent request to have him disqualified, Mr. Saimon provided a copy of his purported contract with the FSM's national election office. However, that contract, which is unsigned, states at one point that it is for the representation of the FSM's Office of the Public Auditor, although the rest of the contract refers to the FSM's national election office.