[24 FSM R.001]

CIVIL ACTION NO. 2023-018

Hearing: October 23, 2023
Decided: October 25, 2023

APPEARANCES:

For the Plaintiff:           Salomon M. Saimon, Esq.
                                    P.O. Box 911
                                    Kolonia, Pohnpei, FM 96941
                                   
                                    Kathleen M. Burch, Esq.
                                    P.O. Box 1365
                                    Koror, Palau PW 96940

For the Respondent:   Yolanda C. Rondon, Esq.
  (Speaker)                  Congress Staff Attorney
                                    P.O. Box PS-3
                                    Palikir, Pohnpei FM 96941

For the Respondent:   Nixon Alten, Esq.
  (Director Lambert)     Assistant Attorney General
                                    FSM Department of Justice
                                    P.O. Box PS-105
                                    Palikir, Pohnpei FM 96941

HEADNOTES

Civil Procedure – Parties – Official Capacity

An individual in his official capacity as Speaker of the 23^rd Congress, is not the same person as that same individual in his private capacity, for the purposes of the law. The law recognizes the legal distinction between the person and the position; they are separate legal entities. A suit against the Speaker in his official capacity means that Congress itself is being sued, not the individual. Sigrah v. Moses, 24 FSM R. 313, 315 (Pon. 2023).

Attorney and Client – Disqualification of Counsel

An attorney who represented a person in his individual capacity is not disqualified from later suing him in his official capacity as Speaker of Congress because, in reality, Congress is the party, not the person, and Congress is not in a position to disqualify the attorney based on her prior representation of the person in an individual capacity in a separate matter. Sigrah v. Moses, 24 FSM R. 313, 315 (Pon. 2023).

Attorney and Client – Disqualification of Counsel

When the conflict is such as clearly to call in question the fair or efficient administration of justice, opposing counsel may properly raise the question. Such an objection should be viewed with caution, however, for it can be misused as a technique of harassment. Sigrah v. Moses, 24 FSM R. 313, 315 n.3 (Pon. 2023).

Attorney and Client – Disqualification of Counsel

A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, by mail, in-person or otherwise, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. Sigrah v. Moses, 24 FSM R. 313, 315 (Pon. 2023).

Attorney and Client – Disqualification of Counsel

When a letter written by the lawyer to a party, while ill-advised, was not a solicitation letter, and of more significance, the lawyer was not engaged as an attorney for the opposing party in the case at the time that she sent it, the court can find no basis for disqualifying the lawyer from representing the opposing party in the matter. Sigrah v. Moses, 24 FSM R. 313, 315 (Pon. 2023).

COURT'S OPINION

DENNIS L. BELCOURT, Associate Justice:

On October 23, 2023, this Court held a hearing on pretrial matters including: 1) Motion to Disqualify, and 2) Motion to Dismiss. Esmond Moses, in his official capacity as Speaker of the 23^rd Congress, ("Congress") was represented by Congress staff attorney Yolanda Rondon, Esq. ("Rondon"). Ausen Lambert, in his official capacity as Director of the Office of National Elections, ("Executive") was represented by Nixon Alten ("Alten"). Yoslyn Sigrah ("member-elect Sigrah") was represented by Salomon Saimon ("Saimon"), and, as discussed below, by Kathleen Burch, Esq. of Koror, Republic of Palau.

First, the Court heard arguments from both parties regarding an opposition to Petitioner's amended pleadings.¹ The Court held the decision in reserve, noting that if the 3rd cause of action became relevant to the Motion to Dismiss, the Court would consider it at that time.

Second, the Court heard arguments from both parties regarding the Disqualification of Kathleen Burch as an attorney appearing on behalf of Petitioners. Kathleen Burch ("Burch") was allowed to appear via Zoom from Palau to make arguments on her own behalf. Congress objected to her appearance based on Model Rules of Professional Conduct 1.9 and 7.3. Rule 1.9 states that

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 repre¬sentation 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.

Previously, Burch represented Esmond Moses, in his personal capacity, in an action which tested his qualifications as a Senator.² Now she joins Sigrah, in her personal capacity, in an action against Congress. Esmond Moses has since become Speaker of Congress. Although the same person, Esmond Moses, in his official capacity, as Speaker of the 23^rd Congress, is not the same person as Esmond Moses, in his private capacity, for the purposes of the law. The law recognizes the legal distinction between the person and the position; they are separate legal entities. The suit against the Speaker is in his official capacity, which means that Congress itself is being sued, not Esmond Moses, the individual. See, e.g., Herman v. Bisalen, 16 FSM R. 293, 295-96 (Chk. 2009) (a suit against an officer in his or her official capacity is treated as a claim against the entity that employs that officer). In reality, Congress is the party, not Esmond Moses, and Congress is not in a position to disqualify Ms. Burch based on a prior representation by her of Mr. Moses in an individual capacity in a separate matter.³

The Court also heard arguments regarding MRPC 7.3 which states that:

A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, by mail, in-person or otherwise, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain.

As evidence, a Letter from Burch to Esmond Moses, dated October 2, 2023, was submitted to the Court. The Court found that the letter written to Moses, while ill-advised, was not a solicitation letter, and of more significance, nor was she engaged as an attorney for member-elect Sigrah in this case at the time that she sent it. See MRPC 4.1. The Court found no basis for disqualifying Ms. Burch from representing member-elect Sigrah in this matter.

Third, the Court heard oral argument regarding the Motions to Dismiss. The Court announced that it would consider the arguments and issue its ruling in writing.

Upon CONSIDERATION of the arguments heard, the Court holds in RESERVE the opposition to the amended pleadings. FURTHER, the Court DENIES the Motion to Disqualify Kathleen Burch. FURTHER the Court sets the following schedule:

1) Oppositions to the Motion to Quash are due by 3:00 p.m. on Wednesday, October 25, 2023;

2) If the motion to dismiss is not granted, the Date for a hearing on declaratory relief, preliminary injunction, and/or civil rights violations, 10:00 a.m., Friday, October 27, 2023.

Footnotes:

¹ First Amended Petition for Declaratory Relief and Injunctive Relief

² Paul v. Lambert, 24 FSM R. 13 (Pon. 2022) (Civil Action No. 2022-030).

³ The Court reiterated a caution, contained in the Comment to MRPC 1.7 about the potential of parties to litigation resorting to opportunistic ethics challenges: "Where the conflict is such as clearly to call in question the fair or efficient administration of justice, opposing counsel may properly raise the question. Such an objection should be viewed with caution, however, for it can be misused as a technique of harassment." Nix v. Etscheit, 10 FSM R. 391, 396 (Pon. 2001).