[24 FSM R. 410]

CIVIL ACTION NO. 2020-002

Hearing: March 6, 2024
Decided: March 14, 2024

APPEARANCES:

For the Plaintiff:          Vincent Kallop, Esq.
                                   Micronesian Legal Services Corporation
                                   P.O. Box 129
                                   Kolonia, Pohnpei, FM 96941

For the Defendants:   Erick B. Divinagracia, Esq.
  (China Railway)        Ramp & Mida Law Firm
                                   P.O. Box 1480
                                   Kolonia, Pohnpei FM 96941

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

HEADNOTES

Attorney and Client – Withdrawal of Counsel

Unless otherwise ordered to do so by a tribunal, a lawyer must withdraw from representing a client if the lawyer is discharged, but when ordered to do so by a tribunal, a lawyer must continue the representation notwithstanding good cause for terminating it. Felix v. China Rwy. Constr. Co., 24 FSM R. 410, 411 (Pon. 2024).

Attorney and Client – Withdrawal of Counsel

A client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer's services. Felix v. China Rwy. Constr. Co., 24 FSM R. 410, 411 (Pon. 2024).

Attorney and Client – Withdrawal of Counsel

Upon termination of representation, a lawyer must take steps to the extent reasonably practicable to protect a client's interests, and, even if the lawyer has been unfairly discharged by the client, the lawyer must still take all reasonable steps to mitigate the consequences to the client, although the lawyer may retain papers as security for a fee only to the extent permitted by law. Felix v. China Rwy. Constr. Co., 24 FSM R. 410, 411-12 & n.2 (Pon. 2024).

Attorney and Client – Withdrawal of Counsel

The court may order a discharged attorney to remain as a corporation's counsel of record for 30 days, or until the corporation files a substitute; to assist the corporation in securing replacement counsel by providing it with the names and contact for three other local attorneys, and reiterate that a failure to have representation at subsequent hearings could result in a default judgement against it; and to obtain from the client, and submit to the court, the name and mailing address of an individual who can receive service on the corporation's behalf. Felix v. China Rwy. Constr. Co., 24 FSM R. 410, 412 (Pon. 2024).

COURT'S OPINION

MAYCELEEN J.D. ANSON, Temporary Justice:

On March 6, 2024, this court held a hearing on the service of process, Judge Mayceleen JD Anson presiding. Plaintiff was represented by Vincent Kallop ("Kallop"). FSM National Government was represented by Attorney General Jeffrey Tilfas ("Tilfas") and China Railway Construction Company ("CRCC") was represented by Erick Divinagracia ("Divinagracia"). As a preliminary matter the court heard from Divinagracia on his Motion to Withdraw as Counsel.¹

Pursuant to MRPC 1.16(a)(3), unless otherwise ordered to do so by a tribunal, a lawyer shall withdraw from the representation of a client if "the lawyer is discharged." Pursuant to MRPC 1.16(a)(3), however,"[w]hen ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation." The comment to MRPC 1.16 states in relevant part, "[a] client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer's services." "Whether a client can discharge appointed counsel may depend on applicable law. A client seeking to do so should be given a full explanation of the consequences. These consequences may include a decision by the appointing authority that appointment of successor counsel is unjustified, thus requiring the client to represent himself." ld. Pursuant to MRPC 1.16(d),

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

(emphasis added).²

Divinagracia represented that he was terminated by email, dated March 1, 2024, after informing the client of the hearing on process of service by the project manager, Cui Chengwen, of CRCC. Divinagracia further represents that he has explained the consequences of termination to his client and taken reasonable steps to mitigate the consequences to the client, including advising them to secure alternate counsel, and returning copies of the case files.

The court heard from the other attorneys in this case. Both expressed concern that the withdrawal could adversely affect the court proceedings if a replacement counsel is not found. Further, Kallop requested that 1) the name of an individual at CRCC be identified, who can be served in lieu of Divinagracia, 2) the address of that individual be disclosed, and 3) that thirty (30) days be given to CRCC obtain other counsel.

IT IS HEREBY ORDERED, that Divinagracia remain as counsel of record for CRCC, for thirty (30) days, or until CRCC files a substitute. IT IS FURTHER ORDERED that Divinagracia assist CRCC in securing replacement counsel by providing them with the names and contact for three (3) other attorneys in Pohnpei, and reiterate that a failure to have representation at subsequent hearings could result in a default judgement against them.³ IT IS FURTHER ORDERED that Divinagracia obtain from his client, and submit to the Court, the name and mailing address of an individual who can receive service on behalf of CRCC no later than April 8, 2024.

The next appearance in this matter shall be set by further order of the court.

Footnotes:

¹ Filed March 5, 2024.

² "Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client. The lawyer may retain papers as security for a fee only to the extent permitted by law." FSM MRPC R. 1.16 cmt. (emphasis added).

³ Pursuant to FSM Civil Rule 55(a), "When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter that party's default."