FSM SUPREME COURT TRIAL DIVISION
Cite as In re Sigrah, 24 FSM R. 585 (Pon. 2024)
IN THE MATTER OF ATTORNEY
YOSLYN G. SIGRAH,
Respondent Attorney.
DPA NO. 005-2022
DECISION IMPOSING DISCIPLINE
Larry Wentworth
Associate Justice
Hearing: July 29, 2024
Decided: October 25, 2024
APPEARANCES:
Disciplinary Counsel:
Aaron L. Warren, Esq.
P.O. Box 3501
Pago Pago, American Samoa AS 96799
For the Respondent Attorney:
Yoslyn G. Sigrah, Esq. (pro se)
P.O. Box 3018
Kolonia, Pohnpei FM 96941
* * * *
A motion to stay filed after an attorney's suspension has already taken effect would likely be denied as untimely since part of the suspension period would have already run and the attorney should already have fully complied with Rule 12(a) by then. But a motion to stay filed along with a notice of appeal a reasonable amount of time before the 30-day pre-suspension period has run would likely be granted, when some aspects of that case were matters of first impression. In re Sigrah, 24 FSM R. 585, 588 n.2 (Pon. 2024).
A judge cannot voluntarily excuse him or herself because, in the absence of a showing of any partiality or extrajudicial bias under 4 F.S.M.C. 124(1), a judge is obligated to hear cases assigned to that judge, and it is axiomatic that a judge's adverse rulings made in the course of judicial proceedings are not grounds for disqualification for appearance of bias or for partiality under 4 F.S.M.C. 124(1). In re Sigrah, 24 FSM R. 585, 589 (Pon. 2024).
The court, not disciplinary counsel, has jurisdiction over disciplinary cases involving attorneys licensed to appear before it. In re Sigrah, 24 FSM R. 585, 590 (Pon. 2024).
The FSM Supreme Court has, to the extent necessary, jurisdiction over FSM-admitted attorneys anywhere in the world by virtue of their admission to practice before the court because a lawyer admitted to practice before the FSM Supreme Court is subject to its disciplinary au¬thority although engaged practice elsewhere. In re Sigrah, 24 FSM R. 585, 590 & n.4 (Pon. 2024).
No law or rule requires that a disciplinary counsel be an FSM resident, although, as a practical matter, that may usually be desirable. A mere change of residence does not automatically disqualify someone from continuing to act as disciplinary counsel. In re Sigrah, 24 FSM R. 585, 590 (Pon. 2024).
A motion to stay an attorney's suspension filed after the suspension period has run will be denied as moot. In re Sigrah, 24 FSM R. 585, 590 (Pon. 2024).
An attorney remains fully answerable under the Rules of Professional Conduct for violations of their ethical obligations that are committed while the attorney was suspended because a suspended lawyer remains subject to the court's disciplinary jurisdiction for acts committed while suspended. In re Sigrah, 24 FSM R. 585, 591 n.6 (Pon. 2024).
A disciplinary matter will not be stayed to await the outcome of an appeal in another disciplinary matter because the alleged acts or omissions (mostly omissions had not yet occurred when the earlier disciplinary decision was rendered and because the appeal's outcome would not affect whether disciplinable conduct is found in this case; and because, even if the attorney were completely exonerated in her appeal, it would not entitle her to a dismissal of this disciplinary proceeding. In re Sigrah, 24 FSM R. 585, 592 (Pon. 2024).
The Disciplinary Rules contain a presumption against staying – deferring, or abating – action in a disciplinary matter because of pending civil or criminal litigation. In re Sigrah, 24 FSM R. 585, 592 (Pon. 2024).
A general denial in an answer to a disciplinary complaint, while disfavored, is permissible when proper, but is subject to the obligations of honesty set forth in Civil Procedure Rule 11 because pleadings, which deny facts known by the pleader to be true, subject counsel to possible Rule 11 sanctions. In re Sigrah, 24 FSM R. 585, 593 (Pon. 2024).
Except as otherwise provided by the Disciplinary Rules, disciplinary proceedings are governed by the FSM Supreme Court's Rules of Civil Procedure. In re Sigrah, 24 FSM R. 585, 593 n.9 (Pon. 2024).
Rule 12(d) requires that a suspended attorney file within ten days of the suspension order's effective date, an affidavit showing 1) the suspended attorney's compliance with the suspension order, 2) compliance with the disciplinary rules, and 3) notification of the disciplinary action to all other jurisdictions in which the attorney is admitted to practice as may be required by the rules of those jurisdictions. In re Sigrah, 24 FSM R. 585, 593 (Pon. 2024).
When no Rule 12(d) affidavit appears in the disciplinary action's court file; when the docket book does not show that one was ever filed; when no motion was ever filed seeking more time to file such an affidavit; and when the court cannot give any credence to a suggestion that the clerks refused to file such an affidavit, the evidence is clear and convincing that no Rule 12(d) affidavit was ever filed in and that therefore the suspended attorney violated her ethical obligations by not filing such an affidavit. In re Sigrah, 24 FSM R. 585, 593 (Pon. 2024).
A court may take judicial notice of its own files in related cases. In re Sigrah, 24 FSM R. 585, 593 n.12 (Pon. 2024).
In the trial division, a party always has the right to appear pro se. In re Sigrah, 24 FSM R. 585, 593 (Pon. 2024).
A suspended attorney must keep and maintain records of the various steps taken in compliance with the disciplinary rules so that, upon any subsequent proceedings taken by or against the attorney, proof of compliance with the rules and with the suspension order will be available. In re Sigrah, 24 FSM R. 585, 593-94 (Pon. 2024).
A suspended attorney is required to provide the Rule 12(g) records to the disciplinary counsel when asked for them, not only because Rule 12(g) requires that they be kept for use at subsequent proceedings (thus implying that they must be produced), but also because a lawyer, in connection with a disciplinary matter, must not knowingly fail to respond to a lawful demand for information from a disciplinary authority, except for the disclosure of confidential client information otherwise protected by FSM Model Rule 1.6. In re Sigrah, 24 FSM R. 585, 594 & n.14 (Pon. 2024).
A disciplinary counsel appointed by the FSM Supreme Court is a disciplinary authority within the meaning of the FSM Model Code of Professional Conduct. In re Sigrah, 24 FSM R. 585, 594 n.13 (Pon. 2024).
The duty imposed by FSM MRPC Rule 8.1 applies to a lawyer's own discipline as well as that of others. Thus, it is a separate professional offense for a lawyer to knowingly make a misrepresentation or omission in connection with a disciplinary investigation of the lawyer's own conduct. In re Sigrah, 24 FSM R. 585, 594 n.15 (Pon. 2024).
A suspended attorney's failure to, or her inability to, produce any Rule 12(g) records when requested, or in defense to any of the other allegations against her, indicates the complete lack of any such records. The evidence is thus clear and the court is convinced that the suspended attorney did not keep and maintain the records required by Disciplinary Rule 12(g), and therefore the suspended attorney violated her ethical obligations under Rule 12(g). In re Sigrah, 24 FSM R. 585, 594 (Pon. 2024).
When it is unclear whether the suspended attorney may have actually tried to file motions to withdraw from her cases but the filings were refused by the clerks, which would make the suspended attorney's failure to file motions to withdraw excusable, and since the court is hesitant to impose adverse consequences on someone if that person was acting in accordance with a court clerk's advice or instruction, the evidence is not clear and convincing that the suspended attorney willfully violated Rule 12(b). In re Sigrah, 24 FSM R. 585, 595 (Pon. 2024).
It is not a disciplinary counsel's duty to search through the all the court's files looking for cases in which the respondent attorney had appeared and then to examine those files for evidence about whether the respondent attorney had complied with Disciplinary Rule 12. It is the suspended respondent attorney's affirmative duty not only to maintain records about compliance with Rule 12, but to also produce those
records when sought or needed in a subsequent proceeding. In re Sigrah, 24 FSM R. 585, 595 (Pon. 2024).
If a suspended attorney maintains and provides the records required by Rule 12, and if those records show substantial compliance with Rule 12(a), a complaint that the suspended attorney violated Rule 12(a) would likely end right then and there. But when the suspended attorney failed to, or was unable to, produce any records, and the complete lack of any such records, the evidence is clear and convincing that the suspended attorney did not comply with Disciplinary Rule 12(a) because if she had complied, she would have had the records (post office receipts) available to show that she did comply and been able to produce them upon request. In re Sigrah, 24 FSM R. 585, 595 (Pon. 2024).
An appellate court's complete exoneration of suspended attorney's conduct in a disciplinary case that resulted in the suspension would not erase the attorney's ethical lapses in failing to comply with Rule 12 while suspended and would not make a Rule 12 disciplinary action, and any Rule 12 ethical lapses, go away. In re Sigrah, 24 FSM R. 585, 595 & n.16 (Pon. 2024).
The sting of discipline for ethical violations cannot be avoided under the guise of a pure heart and an empty head. In re Sigrah, 24 FSM R. 585, 595 (Pon. 2024).
* * * *
LARRY WENTWORTH, Associate Justice:
On July 29, 2024, the court conducted the Disciplinary Rule 5(d) hearing on the formal complaint. Respondent Attorney Yoslyn G. Sigrah testified on her own behalf. Based upon the evidence, the court, for the reasons given below, hereby imposes a public reprimand.
On April 20, 2022, the court clerk entered the court's Decision Imposing Discipline in DPA No. 003-2018, in which the court found that Respondent Attorney Yoslyn G. Sigrah had engaged in disciplinable conduct and, as a sanction, suspended her from the practice of law for two months.1 In re Sigrah, 23 FSM R. 537, 547-50 (Pon. 2022). The court, citing Disciplinary Rule 12(c), noted that this suspension would, "as required by the Disciplinary Rules, take effect 30 days after the Chief Clerk enters th[e] order," and that "[b]efore then, [Sigrah] must comply with Disciplinary Rules 12(a) and 12(b)." In re Sigrah, 23 FSM R. at 550. The court further noted that once the suspension took effect, "Sigrah must then also comply with the requirements of Disciplinary Rules 12(d) and 12(g)." In re Sigrah, 23 FSM R. at 550.
Sigrah did not appeal the April 20, 2022 Decision Imposing Discipline during the 30-day period before the suspension took effect. Thus, by rule, Sigrah's two-month suspension automatically took effect on May 20, 2022. FSM Dis. R. 12(c). Ten days later, on May 30, 2022, Sigrah filed her notice of appeal. No motion to stay was filed then.2 The two-month suspension continued to run.
On June 21, 2022, the Chief Clerk of Court received a letter from the FSM Development Bank's general counsel noting that it appeared Sigrah had failed to notify her clients that her law license had been suspended, had failed to make timely arrangements for substitute counsel, and had failed to withdraw from pending court matters even though the DPA No. 003-2018 suspension was in effect. The clerk opened a new file, docketed as DPA No. 005-2022. Since it involved the DPA No. 003-2018 proceeding, it was referred to the DPA No. 003-2018 Disciplinary Counsel for investigation and recommendation.
Sigrah's two-month suspension period ended July 20, 2022. She could have applied for reinstatement after that, FSM Dis. R. 13(b), but no reinstatement application was filed that year.3
Disciplinary Counsel filed his recommendations on October 28, 2022. He recounted the results of his queries and dialogue with Sigrah and her partial responses to his requests for her records showing her compliance with the court order and with the disciplinary rules, and, since she had not provided that evidence, recommended that she be ordered to show cause why additional discipline should not be imposed on her for her failure to comply with the DPA No. 003-2018 Decision and with Disciplinary Rule 12. The court gave Sigrah until December 2, 2022, to file a response. She did not respond to this submission.
A. Disqualification Motions
Instead, after a hearing at which she indicated she wished to file "preliminary matters," Sigrah, on April 13, 2023, moved to disqualify the reviewing justice and to disqualify the Disciplinary Counsel. For the reasons summarized below, the court denied those motions. In re Sigrah, Order Denying Motions (Pon. DPA No. 005-2022 May 8, 2023).
1. Judicial Disqualification
Sigrah contended that the reviewing justice either should "voluntarily excuse" himself from this case or should recuse himself because his impartiality might reasonably be questioned or because of bias against her based on the reviewing justice's previous rulings in DPA No. 003-2018 and in various cases in which she represented FSM Development Bank borrowers.
That motion was denied, In re Sigrah, Order Denying Motions at 1-3 (Pon. DPA No. 005-2022 May 8, 2023), because a judge cannot "voluntarily excuse" him or herself since, in the absence of a showing of any partiality or extrajudicial bias under 4 F.S.M.C. 124(1), a judge is obligated to hear cases assigned to that judge, Heirs of Henry v. Heirs of Akinaga, 21 FSM R. 310, 314 (App. 2017); Halbert v. Manmaw, 20 FSM R. 245, 250 (App. 2015); Panuelo v. Sigrah, 22 FSM R. 341, 364 (Pon. 2019), and because it is axiomatic that a judge's adverse rulings made in the course of judicial proceedings are not grounds for disqualification for appearance of bias or for partiality under 4 F.S.M.C. 124(1), Halbert v. Manmaw, 20 FSM R. 245, 250 (App. 2015); FSM v. Wainit, 13 FSM R. 293, 295 (Chk. 2005); FSM v. Wainit, 11 FSM R. 424, 431 (Chk. 2003); FSM v. Ting Hong Oceanic Enterprises, 7 FSM R. 644, 649 (Pon. 1996); FSM v. Skilling, 1 FSM R. 464, 473, 484 (Kos. 1984).
2. Disciplinary Counsel Disqualification
Sigrah also contended that Disciplinary Counsel Aaron Warren was disqualified as it was illegal for
an attorney resident in American Samoa to prosecute an attorney disciplinary case in the FSM because a disciplinary counsel resident in American Samoa did not have "jurisdiction" over FSM disciplinary cases and because FSM courts do not have personal jurisdiction over lawyers residing in American Samoa.
The court rejected these "jurisdictional" arguments because it is the court, not disciplinary counsel, that has jurisdiction over disciplinary cases involving attorneys licensed to appear before it, and because the FSM Supreme Court has, to the extent necessary, jurisdiction over FSM-admitted attorneys anywhere in the world by virtue of their admission to practice before the court.4 In re Sigrah, Order Denying Motions at 4 (Pon. DPA No. 005-2022 May 8, 2023).
The court denied the disqualification motion on the further grounds 1) that no law or rule required that disciplinary counsel be an FSM resident, although, as a practical matter, that may usually be desirable; 2) that Warren was an FSM resident when he was appointed disciplinary counsel for DPA No. 003-2018 and for some time thereafter; 3) that this case was referred to the DPA No. 003-2018 disciplinary counsel for investigation and recommendation in the interests of judicial efficiency and because of his familiarity with the matter since this case was an offshoot of DPA No. 003-2018; and 4) that a mere change of residence did not automatically disqualify him from continuing to act as disciplinary counsel, if practicable. Id. at 4-5.
B. Motion to Stay in DPA No. 003-2018
On April 14, 2023, Sigrah filed, not in this case, but in DPA No. 003-2018, a Motion to Stay Pending Appeal. She asked the court in DPA No. 003-2018 to stay the April 20, 2022 Decision Imposing Discipline in that case while her appeal of that decision is pending.
But, that court was at loss to determine what part of the April 20, 2022 Decision Imposing Discipline there was left to stay since the two-month suspension period had already ended July 20, 2022, and Sigrah was free to apply for reinstatement any time after that.5 In re Sigrah, DPA 003-2018 Order Concerning Stay at 2 (Pon. May 3, 2023). That motion to stay was denied as moot. Id.
C. Formal Complaint
On May 18, 2023, Disciplinary Counsel filed the Rule 5(b) formal complaint with seven numbered paragraphs. The complaint alleged that Sigrah had committed ethical misconduct by:
1) not complying the Rule 12(a)'s requirement that she notify by registered or certified mail, return receipt requested, all clients in pending matters of her suspension and her consequent inability to act, Compl. ¶ 3;
2) not complying the Rule 12(b)'s requirement that, if her client did not obtain substitute counsel before her suspension's effective date, that she move, in the court in which the proceeding was pending, for leave to withdraw, Compl. ¶ 4; and
3) not complying the Rule 12(d)'s requirement that, within ten days of her suspension's effective date, she file with the Chief Clerk of the Supreme Court an affidavit showing compliance with the provisions of the suspension order and with these rules, and her notification of the disciplinary action to all other jurisdictions in which she is admitted to practice as may be required by the rules of those jurisdictions, and that she did not maintain the records of her compliance required by Disciplinary Rule 12(g), Compl. ¶ 5.
The formal complaint and a summons were served on Sigrah by hand delivery on June 2, 2023.
D. Answer
On June 14, 2023, Sigrah filed Respondent-Attorney's Answer to Complaint Filed by Same Disciplinary Counsel Aaron Warren Who Was DC in DPA 003-2018 Where this Complaint DPA 004-2022 Originated From. In it, Sigrah instructed the disciplinary counsel to consult the files in DPA No. 003-2018 and in Appeal Cases No. P4-2022 and P17-2021 and denied each paragraph of the formal complaint by saying (with [X] being replaced by numbers 1 through 7 for each of the Complaint's seven paragraphs),
In Answering paragraph [X] of the Complaint, the paragraph carries insufficient, incomplete information of the case files, did not include information, filings and the complete composite of the files in DPA No.: 003-2018, relating to Respondent's Appeal in P4-2022 and P17-2021, therefore, Respondent denies all allegations of wrongdoings in the processing of DPA 003-2018.
At no point did Sigrah's answer admit or deny any of the specific factual allegations in the formal complaint, including the [essentially undeniable] allegations that the April 20, 2022 disciplinary order in Disciplinary Acton No. 003-2018 included an order suspending Sigrah's law license, Compl. ¶ 1; and that on October 28, 2022, disciplinary counsel had filed a recommendation for discipline, id. ¶ 6.
E. Motion to Dismiss or, Alternatively, to Stay
Sigrah, on November 28, 2023, moved to dismiss this proceeding or alternatively to stay it pending the outcome of her appeal of the DPA No. 003-2018 Order Imposing Discipline. As summarized below, this motion was denied. In re Sigrah, Order Denying Dismissal; Order Denying Stay (Pon. Dec. 13, 2023).
1. Motion to Dismiss
Sigrah moved to dismiss this matter on the ground that since she had already been suspended from the practice of law when this disciplinary complaint was made, the court had no authority to issue any further "citations" directed to her.
The court denied the motion to dismiss because whether the disciplinary complaint was filed while Sigrah was suspended or even whether her alleged misconduct occurred while she was suspended was irrelevant 1) since the alleged failure to comply with Disciplinary Rule 12(a) involved the misdeeds or omissions of things Sigrah was supposed to have done before the suspension took effect and the court must have some way to enforce that rule; 2) since an attorney remains fully answerable for violations of their ethical obligations under the Rules of Professional Conduct that are committed while the attorney was suspended;6 and 3) since the DPA No. 003-2018 notices of appeal have no effect on this Disciplinary Action
(No. 005-2022) because DPA No. 003-2018 alleged different ethical violations at different times than those in this action and because none of the allegations in this case are on appeal or are even before the appellate division. In re Sigrah, Order Denying Dismissal; Order Denying Stay at 1-4 (Pon. Dec. 13, 2023).
2. Motion to Stay DPA No. 005-2022
Alternatively, Sigrah moved to stay this matter until her DPA No. 003-2018 appeal was decided because that appeal somehow divested this court of jurisdiction in this (DPA No. 005-2022) disciplinary action, and because Sigrah assumed that the appellate court would reinstate her nunc pro tunc once she prevailed on her DPA No. 003-2018 appeal, making it as if she had never been suspended and somehow making the allegations in this case to go away and causing the case to be dismissed.
The court denied a stay because those alleged acts or omissions (mostly omissions – the failure to do certain things) had yet to occur when the DPA No. 003-2018 decision was rendered; because the outcome of the DPA No. 003-2018 appeal would not affect whether disciplinable conduct is found in this case (DPA No. 005-2022); and because, even if Sigrah were completely exonerated in her DPA No. 003-2018 appeal, it would not entitle her to a dismissal of this disciplinary proceeding. In re Sigrah, Order Denying Dismissal; Order Denying Stay at 4-5 (Pon. Dec. 13, 2023).7
Furthermore, the Rules contain a presumption against staying – deferring, or abating – action in a disciplinary matter because of pending civil or criminal litigation. FSM Dis. R. 7(a). Disciplinary cases are expected go forward despite the presence of other pending litigation.
The Rule 5(d) formal hearing was held on July 29, 2024. The proof of ethical misconduct must be clear and convincing. FSM Dis. R. 5(e).
A. Formal Hearing
During the hearing, Sigrah testified under oath that she had fully complied with Disciplinary Rule 12, but that she had been unable to file proof of those compliances in her cases once her suspension took effect because the court clerks would not accept filings from her so she could not file her motions to withdraw. She further testified that she had asked her clients to find new counsel and added that she was able to find new counsel for only one of her cases.
Sigrah added that if the disciplinary counsel had looked in the case files for certain cases, citing FSM Development Bank v. Weilbacher in particular, he would see a sworn statements from her clients that she had informed them that she could not represent them.8
B. The Formal Complaint's Allegations
Sigrah's answer to the formal complaint was in the nature of a general denial. See supra part II.D. General denials, while disfavored, are permissible when proper, but are subject to the obligations of honesty set forth in Civil Procedure Rule 119 because pleadings, which deny facts known by the pleader to be true, subject counsel to possible Rule 11 sanctions. Albert v. George, 15 FSM R. 574, 577 n.1 (App. 2008). The court will address the formal complaint's allegations in reverse order.
1. Rule 12(d) and Rule 12(g) Allegations
The formal complaint alleges that Sigrah did not comply with Disciplinary Rule 12(d) because she failed to timely file the affidavit required by that rule and that she failed to maintain records of her compliance with Rule 12, as required by Disciplinary Rule 12(g).
a. Rule 12(d) Affidavit
Rule 12(d) requires that a suspended attorney file within ten days of the suspension order's effective date,10 an affidavit showing 1) the suspended attorney's compliance with the suspension order, FSM Dis. R. 12(d)(1); 2) compliance with the disciplinary rules, id.; and 3) notification of the disciplinary action to all other jurisdictions in which the attorney is admitted to practice as may be required by the rules of those jurisdictions, FSM Dis. R. 12(d)(2).11
The court takes notice12 that no such affidavit appears in the DPA No. 003-2018 court file and that the docket book does not show that one was ever filed, either by May 31, 2022 or at any time thereafter. The court takes further notice that no motion was ever filed seeking more time to file such an affidavit.
The court cannot give any credence to a suggestion that the clerks refused, or would have refused, to permit Sigrah to file such an affidavit. A suspended attorney (and even a disbarred attorney) is not prohibited from representing themselves in court even though they cannot represent someone else. Sigrah was obviously a party in DPA No. 003-2018, and, in the trial division, a party always has the right to appear pro se. FSM Telecomm. Corp. v. Helgenberger, 17 FSM R. 407, 410 (Pon. 2011). The clerks are well aware the parties can always represent themselves, and, of course, Sigrah was obviously a party in In re Sigrah, DPA No. 003-2018. Thus, the clerks would have accepted and filed in DPA No. 003-2018, any such affidavit, or anything else, Sigrah tendered on her own behalf in her own case. But nothing was filed.
The evidence is thus clear and convincing that no Rule 12(d) affidavit was ever filed in DPA No. 003-2018, and that therefore Sigrah violated her ethical obligations by not filing such an affidavit.
b. Rule 12(g) Records
"A . . . suspended attorney shall keep and maintain records of the various steps taken in compliance with these rules so that, upon any subsequent proceedings taken by or against the attorney, proof of
compliance with these rules and with the . . . suspension order shall be available. . . ." FSM Dis. R. 12(g). If Sigrah had kept such records, she, by providing them, would then have been able to easily rebuff any suggestion that she had not complied with Rule 12 if those records had shown compliance.
Sigrah was also required to provide those records, if she had them, to the disciplinary counsel when he asked for them, not only because Rule 12(g) required that they be kept for use at "subsequent proceedings" (thus implying that they must be produced) and this is a subsequent proceeding, but also because "a lawyer in connection with a . . . disciplinary matter, shall not: . . . (b) . . . knowingly fail to respond to a lawful demand for information from a . . . disciplinary authority,13 except that this Rule does not require disclosure of information otherwise protected by Rule 1.6."14 FSM MRPC R. 8.1 (footnote added).15
Sigrah should have been aware of the need to keep these records as required by Rule 12(g) because the court's Order Imposing Discipline in DPA No. 003-2018 not only stated that Sigrah "must comply with Disciplinary Rules 12(a) and 12(b)," but also that "[o]nce the sanctions have taken effect, Sigrah must then also comply with the requirements of Disciplinary Rules 12(d) and 12(g)." In re Sigrah, 23 FSM R. at 550. Not only did Rule 12(g) require Sigrah to keep these records, but the suspension order also specifically directed her attention to the need to comply with Rule 12(g). As an attorney, Sigrah would also be expected to consult those rules herself to determine what her obligations were.
Accordingly, Sigrah's failure to, or her inability to, produce any 12(g) records when requested, or in defense to any of the other allegations against her, indicates the complete lack of any records. The evidence is clear and the court is convinced that Sigrah did not keep and maintain the records required by Disciplinary Rule 12(g), and therefore Sigrah violated her ethical obligations under Rule 12(g).
2. Rule 12(b) Allegations
Sigrah provides an excuse for her failure to file motions to withdraw. She testified that she had attempted to file motions to withdraw after her suspension took effect, but that the court clerks refused to accept any filings from her in those cases.
Although troubling, this testimony is plausible. The clerks, knowing that Sigrah had been suspended, may not have realized that motions to withdraw were motions that a suspended attorney was permitted, even expected, to file after the suspension took effect and they may not have known that that was what Sigrah was trying to file. When trying to file, Sigrah might have neglected to inform the clerks that she was only trying to file motions to withdraw, and nothing else, and that Disciplinary Rule 12(b) required her to file motions to withdraw if she had not found substitute counsel for her clients before her suspension became effective and that therefore, even though she was suspended, she was allowed to file those motions.
It is unclear what may have actually happened, and in which cases. The court is hesitant to impose adverse consequences on someone if that person was acting in accordance with a court clerk's advice or
instruction. Cf. Kosrae Island Credit Union v. Obet, 7 FSM R. 193, 194 (App. 1995) (appeal not dismissed for failure to properly file notices of appeal when that failure was because the appellant followed a court employee's faulty instructions). This would make Sigrah's failure to file motions to withdraw excusable. The court is therefore not convinced that the evidence is clear that Sigrah willfully violated Rule 12(b), and will put this allegation down as not sufficiently proven.
3. Rule 12(a) Allegations
The formal complaint alleges that Sigrah failed to comply with Rule 12(a)'s requirement that she notify by registered or certified mail, return receipt requested, all clients in pending matters of her suspension and her consequent inability to act. Disciplinary counsel asserted that, to disprove this allegation, all Sigrah had needed to do in response to his inquiries was to show him her records that she had complied with Disciplinary Rule 12, but she had not done so, despite his repeated requests and even though she had an affirmative duty to do so.
Sigrah was required to keep such records. FSM Dis. R. 12(g); see also supra part III.B.1.b. It is not the disciplinary counsel's duty (as Sigrah seems to suggest it is) to search through the all the court's files looking for cases in which the respondent attorney had appeared and then to examine those files for evidence about whether the respondent attorney had complied with Disciplinary Rule 12. It is the suspended respondent attorney's affirmative duty not only to maintain records about compliance with Rule 12, but to also produce those records when sought or needed in a subsequent proceeding. FSM Dis. R. 12(g); FSM MRPC R. 8.1(b); see also supra note 15. If Sigrah had maintained and provided the records required by Rule 12, and had those records shown substantial compliance with Rule 12(a), this matter would likely have ended right then and there. But no such records were produced.
Because of Sigrah's failure to, or her inability to, produce any records, or complete lack of any records, the evidence is clear and convincing that Sigrah did not comply with Disciplinary Rule 12(a). If she had complied, she would have had available the records (post office receipts) to show that she did comply and been able to produce them upon request.
C. Discipline Imposed
Sigrah seems to have believed that there may not be a need to assure compliance with Disciplinary Rule 12 because she planned to appeal the DPA No. 003-2018 decision and was certain she would prevail on her appeal and that the appellate court's decision in that appeal would make this disciplinary action, and any Rule 12 ethical lapses, go away (or, as she put it, she would be restored to good standing nunc pro tunc).16 In a similar situation, although Civil Procedure Rule 11 sanctions cannot be imposed for merely being wrong about the law or having an exaggerated sense of the likelihood of success, the sting of Rule 11 sanctions cannot be avoided under the guise of a pure heart and an empty head. Damarlane v. Pohnpei Transp. Auth., 18 FSM R. 366, 373 (App. 2012). Likewise, the sting of discipline for ethical violations cannot be avoided under the guise of a pure heart and an empty head.Nevertheless, the court, in view of the circumstances, feels that the appropriate discipline to impose in this case is that of a public reprimand.
Accordingly, the court hereby reprimands Respondent Attorney Yoslyn G. Sigrah for her failure to comply with Disciplinary Rules 12(a), 12(d), and 12(g).
_______________________________Footnotes:
1 During the July 29, 2024 hearing, Sigrah repeatedly (and mistakenly) stated, and even testified, that she had been suspended for six months. The term of suspension was two months.
2 A motion to stay filed after a suspension has already taken effect would likely have been denied as untimely since part of the suspension period would have already run and Sigrah should already have fully complied with Rule 12(a) by then. But a motion to stay filed along with a notice of appeal a reasonable amount of time before the 30-day pre-suspension period had run would likely have been granted, considering that some aspects of that case were matters of first impression. See infra part II.B for the April 14, 2023 motion to stay filed in DPA No. 003-2018.
3 See infra note 4 and accompanying text for Sigrah's reinstatement.
4 "A lawyer admitted to practice in this jurisdiction [the FSM Supreme Court] is subject to the disciplinary au-thority of this jurisdiction although engaged practice elsewhere." FSM MRPC R. 8.5.
5 Sigrah did not file a Rule 13(c) application for reinstatement until May 8, 2023. She was eventually reinstated on December 13, 2023.
6 Cf. In re Doe, 2021 Palau 12, ¶ 6 n.3 (Disc. Trib.) (disciplinary authority over attorney automatically suspended for non-payment of dues); In re Fifer, 15 Pal. 111 (Disc. Trib. 2008) (same); In re Perrin, 10 Pal. 111 (Disc. Trib. 2003) (jurisdiction over attorney who was practicing without having completed the admission process). Generally,
courts that have considered this question have concluded that a suspended lawyer remains subject to the disciplinary jurisdiction of the court for acts committed while suspended. See, e.g., [Florida Bar v.] Ross, 732 So.2d [1037,] at 1040 [(Fla. 1998)] (stating that although a lawyer is suspended, he is still a member of the Florida Bar, and, as such, is subject to the same ethical and professional standards as any other member of the bar and the continuing disciplinary jurisdiction of the Florida Supreme Court); In re Chavez, 129 N.M. 35, 1 P.3d 417, 422 (2000) (holding that the Rules of Professional Conduct still apply to a suspended lawyer serving as a legal assistant); In re Complaint as to the Conduct of Hereford, 306 Or. 69, 756 P.2d 30, 32 (1988) (stating that the Oregon Supreme Court possesses supervisory powers over suspended lawyers during the period of suspension and that suspended lawyers still have ethical obligations, the violation of which can lead to further sanctions).
In re C de Baca, 11 P.3d 426, 430 (Colo. 2000).
7 The DPA No. 003-2018 suspension order was already in effect and had not been stayed when Sigrah allegedly failed to comply with the rules applicable in such situations.
8 The Weilbacher court stated that "although she had not filed a motion to withdraw from representation of the Weilbachers during her suspension, Ms. Sigrah filed a notice of re-appearance as counsel for the Weilbachers." FSM Dev. Bank v. Weilbacher, 24 FSM R. 520, 523 (Kos. 2024). It did not mention the client's sworn statement, or the lack of one.
9 "Except as otherwise herein provided, proceedings before a reviewing justice shall be governed by the Rules of Civil Procedure of the Supreme Court . . . ." FSM Dis. R. 5(a).
10 In this case, with Sigrah's suspension's effective date being May 20, 2022, the affidavit should have been filed before May 31, 2022.
11 Neither side made mention of the notification-to-other-jurisdictions provision.
12 A court may take judicial notice of its own files in related cases. Setik v. Perman, 22 FSM R. 105, 117 (App. 2018).
13 A disciplinary counsel appointed by the FSM Supreme Court is a "disciplinary authority" within the meaning of the Model Code of Professional Conduct.
14 Rule 1.6 covers confidential client information. The information required by Disciplinary Rules 12(d) and 12(g) does not involve any such client information.
15 "The duty imposed by this Rule applies to a lawyer's own . . . discipline as well as that of others. Thus, it is a separate professional offense for a lawyer to knowingly make a misrepresentation or omission in connection with a disciplinary investigation of the lawyer's own conduct." FSM MRPC R. 8.1 cmt. The formal complaint did not charge the failure to produce the required Rule 12(g) records as a separate professional offense (although it could have).
16 Even the appellate court's complete exoneration of Sigrah's conduct in DPA No. 003-2018 would not erase her ethical lapses in this case. This is just the same as a person, who was convicted of a crime and held in jail but who escaped from jail, would still be guilty of escape even if the original conviction was reversed on appeal and an acquittal ordered entered, and a person who knowingly violated an injunction can still be held in contempt for that violation even if that injunction is later dissolved as improvidently granted.
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