FSM SUPREME COURT TRIAL DIVISION
Cite as FSM Dev. Bank v. Arthur,9 FSM Intrm. 1(Pon. 2004)
IN THE MATTER OF ATTORNEY MAKETO ROBERT.
DPA NO. 002-1997
ORDER IMPOSING DISCIPLINE
Andon L. Amaraich
Chief Justice
Hearing: October 7, 1999
Decided: December 9, 1999
APPEARANCES:
For the
Plaintiff: Elizabeth M. McCormick, Esq.
Chief of Litigation
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941
For the Defendants: Douglas Parkinson, Esq.
P.O. Box 2069
Kolonia, Pohnpei FM 96941
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When the pleadings, the documents submitted as evidence during the hearing, the responding attorney's signed affidavit which clearly and unequivocally states that he admits to a violation of Rule 1.16(d) and to a violation of Rule 1.7(a), and his statements during the hearing, constitute clear and convincing evidence establishing that violations of the Model Rules occurred, the court may find that the attorney violated Rules 1.7 and 1.16 of the Model Rules. In re Robert, 9 FSM Intrm. 278a, 278g (Pon. 1999).
The clear and convincing standard is that which enables the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case. In re Robert, 9 FSM Intrm. 278a, 278g (Pon. 1999).
Suspensions may run concurrently, beginning 30 days from the date that the Clerk of Court enters the order. In re Robert, 9 FSM Intrm. 278a, 278g (Pon. 1999).
In the event that a suspended attorney is reinstated under Rule 13 of the Disciplinary Rules, his future practice of law may be supervised for some time. In re Robert, 9 FSM Intrm. 278a, 278g (Pon.
1999).
A suspended attorney may be assessed the costs, excluding salaries, but including airfare, per diem, and car rentals, that were incurred in connection with the prosecution of his disciplinary matter.. In re Robert, 9 FSM Intrm. 278a, 278h (Pon. 1999).
A suspended attorney is required to abide by the provisions of the Disciplinary Rules during his suspension, including Rule 12, which governs disbarred or suspended attorneys. In re Robert, 9 FSM Intrm. 278a, 278h (Pon. 1999).
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ANDON L. AMARAICH, Chief Justice:
This matter came before the Court for a formal hearing on October 7, 1999, at 10:00 a.m. at the FSM Supreme Court, Weno, Chuuk. Based upon the statements made at that hearing, the documents admitted into evidence at that hearing and the various pleadings filed in this matter, the Court hereby concludes that there is clear and convincing evidence that Maketo Robert violated Rules 1.7 and 1.16 of the Model Rules of Professional Conduct ("Model Rules"). Accordingly, as required by this Court's Disciplinary Rules and Procedures ("Disciplinary Rules"), the Court hereby imposes discipline upon Maketo Robert, as set forth below.
Previously, on September 2, 1998, this Court entered an Order in which it concluded that the respondent attorney had violated Rules 1.7 and 1.16 of the Model Rules. Rule 1.7 of the Model Rules prohibits an attorney from representing a client whose interests are directly adverse to another client. Rule 1.16 allows an attorney who wishes to withdraw from representation of a client to do so if the withdrawal can be accomplished without material adverse effect on the interests of the client.
On September 14, 1998, this Court issued an Order imposing discipline on the respondent attorney, as required under the Disciplinary Rules. The discipline included suspending him from the practice of law for one year, except for his work in the case of Chuuk State, et al., v. Secretary of Department of Finance, P4-1999, along with an assessment of costs.1
On appeal, however, the FSM Supreme Court Appellate Division vacated both orders.2 In doing so, the Appellate Court concluded that the Respondent attorney had not been afforded a "formal hearing" as required by the Disciplinary Rules. [In re Attorney Disciplinary Proceeding, 9 FSM Intrm.
165, 174 (App. 1999).] In addition, the Appellate Division found that there was not clear and convincing evidence for this Court to conclude that the respondent attorney had violated any of the Model Rules. [Id. at 173-74.] Accordingly, on June 24, 1999, the Appellate Division remanded this matter to this Court with directions that this Court schedule a formal hearing within 30 days or as soon thereafter as reasonably practicable. [Id. at 175.] Following a status conference held on July 20, 1999, the Court scheduled a formal hearing for August 4, 1999. Based upon a joint motion for an enlargement of time, filed by the disciplinary counsel and the respondent's attorney, the formal hearing was rescheduled to October 7, 1999.
On September 22, 1999, shortly before the formal hearing, the disciplinary counsel and the respondent's attorney filed a joint request for a status conference. In that motion, both counsel explained that based upon their investigation and their review of the matter, the "respondent, and his counsel have concluded that violations of Rules 1.7 and 1.16 of the Model Rules of Professional Conduct occurred." Mot. at 1. Both counsel, noting that the "respondent on advice of counsel, hereby formally waives any right to the formal, evidentiary hearing," requested to confer with the Court as to how to proceed given the mandate from the Appellate Court. Based upon this motion, the Court held a status conference on September 29, 1999. Based upon the discussions at that status conference, the Court, on October 1, 1999, issued an Order requiring the respondent Maketo Robert and his attorney to appear in Chuuk for the formal hearing on October 7, 1999. In addition, both the disciplinary counsel and respondent were required to appear with all the evidence, documents and witnesses that they intended to present in connection with Maketo Robert's alleged violation of the Model Rules. The Court further ordered that if counsel wished to file any stipulated pleadings or any statement related to mitigating or aggravating factors they should do so by October 6, 1999.
On October 5, 1999, the disciplinary counsel and the respondent filed a statement of stipulated facts. That pleading provides as follows:
1. Susumu Aizawa hired Maketo Robert to handle his legal affairs in November 1991.
2. In April 1 1994, citing a conflict of interest involving Mr. Robert's wife and family and Mr. Aizawa, Mr. Robert and Mr. Aizawa agreed that Mr. Robert would no longer represent Mr. Aizawa in any legal matter except Civil Action No. 53-85, Aizawa v. Billimon et al. This was an action to quiet title to real property.3
3. Prior to withdrawing from the case on September 23, 1996, Mr. Robert did not consult with Mr. Aizawa about his intent to withdraw from Civil Action No. 53-85.
4. Prior to withdrawing from the case on September 23, 1996, Mr. Robert did not discuss the status of the case with Mr. Aizawa.
5. Prior to withdrawing from the case on September 23, 1996, Mr. Robert did not suggest to Mr. Aizawa that he hire another attorney to handle Civil Action No. 53-85.
6. Mr. Aizawa did not consent in advance to Mr. Robert's withdrawal from representation in Civil Action No. 53-85.
7. Mr. Robert failed to take necessary steps to protect his client's interests in Civil Action No. 53-85 prior to withdrawing from the case.
8. Mr. Robert admits to violating Model Rule 1.16 of the Rules of Professional Conduct regarding termination of representation.
9. Mr. Aizawa learned of Mr. Robert's withdrawal from Civil Action No. 53-85 when he received in the mail a "Notice of Withdrawal as Counsel" in the aforementioned matter that had been filed on September 23, 1996.
10. Two lawsuits involving an upcoming election were filed on September 18, 1996 involving interests adverse to Mr. Aizawa. These cases were Civil Action No. 174-96, Esa v. Niporuch Muty, and Civil Action No. 175-96, Esa v. Umwech and Enlet.4
11. Pursuant to a request by Julio Akapito for legal assistance on the cases, Mr. Robert began consulting on Civil Actions Nos. 174-96 and 175-96 prior to September 18, 1996.
12. On September 18, 1996, Mr. Robert served a copy of the Petition for Writ of Mandamus on the Governor of the State of Chuuk in Civil Action No. 175-96. Mr. Robert signed the Certificate of Service and certified that he had served it on September 18, 1996. The documents were filed with the state court on September 23, 1996.
13. On September 19, 1996, Mr. Robert served a copy of the Petition for Writ of Mandamus on the Chuuk State Election Commissioner in Civil Action No. 175-96. Mr. Robert signed the Certificate of Service and certified that he had served it on September 19, 1996. The document was filed at the state court on September 23, 1995.
14. On September 23, 1996, Mr. Robert filed the document entitled "Notice of Entry of Appearance as Co-counsel for Plaintiff" in Civil Action No. 174-96, Esa v. Niporuch Muty. This was the same day that he also filed his notice of withdrawal in Mr. Aizawa's case, Civil Action No. 53-85.
15. At the time Mr. Robert became involved with the election cases, he had not yet withdrawn from representing Mr. Aizawa in Civil Action No. 53-85.
16. Mr. Robert admits to violating Model Rule 1.7(a) of the Model Rules of Professional Responsibility (conflict of interest).
Joint Mot. of Stipulated Facts (Oct. 5, 1999). This joint motion was signed by the disciplinary counsel and counsel representing Maketo Robert.
Also, on September 5, 1999, the disciplinary counsel filed a pleading captioned as Aggravating Factors for Court's Consideration. In it, the disciplinary counsel stated that in considering what discipline the Court should impose, the Court should consider four aggravating factors. First, the disciplinary counsel stated that at the time of the alleged conduct, Mr. Robert was an experienced attorney who should have been familiar with the Model Rules.
Second, at the time of the alleged conduct, Mr. Robert was suspended from the practice of law as a result of an earlier disciplinary action. Specifically, in DPA 001-1996, Mr. Robert was suspended from the practice of law for six months beginning on June 28, 1996, which was less than three months
before he engaged in the actions at issue in the matter at hand.
Third, as a result of an additional sanction imposed in DPA 001-1996, Mr. Robert was required to successfully pass the ethics portion of the FSM bar examination. The disciplinary counsel states that Mr. Robert met this requirement in August 1996 and as such, he should have been familiar with the Model Rules at the time of his alleged conduct here, which occurred in September 1996.
Fourth, the disciplinary counsel asserted that Mr. Robert did not appear to fully understand his actions. In support of this assertion, the disciplinary counsel noted that Mr. Robert had continued to proffer a series of irrelevant assertions that only served to explain his otherwise unethical activity.
Thereafter, on September 6, 1996, Maketo Robert, through his attorney, filed a pleading captioned as Statement of Mitigating Factors. In it, counsel for the respondent presents several mitigating factors. First, counsel states that between the time of the Court's September 14, 1999 Order imposing discipline, and the Order of November 11, 1998, granting Mr. Robert's request for a stay of all discipline imposed, Mr. Robert was in effect disciplined. Counsel requests that Mr. Robert be given credit for this period of approximately two months.
Second, counsel states that during the eleven month period of time in which this matter was pending before the FSM Supreme Court's Appellate Division, Mr. Robert had voluntarily agreed to a voluntary suspension to not represent any clients before this Court. Counsel requests that Mr. Robert be given credit for his conduct during this period of time.
Third, counsel, noting that Mr. Robert serves as the Chief of Litigation in the Chuuk State Office of the Attorney General, requests that Mr. Robert not be prohibited from representing that sole client before this Court, in the event that this Court chooses to discipline Mr. Robert with yet another suspension from the practice of law. Counsel argues that by having a sole client, Mr. Robert will avoid the types of issues that arose in this matter, which involve multiple representation of clients who have adverse interests. Counsel further stated that Mr. Robert had while the discipline imposed upon him was stayed pending the outcome of his appeal, represented the state in several matters before the FSM Supreme Court's Chuuk State Trial Division. Counsel stated that Mr. Robert's actions in those matters were proper at all times.
Fourth, counsel cited to the views of Angela Belgrove, who served as the initial disciplinary counsel in this matter. According to counsel, that disciplinary counsel had independently concluded that the violations at issue here were "minor violations which had no adverse impact whatsoever on the complainant." Mot. at ¶ 4. To counsel, the initial disciplinary counsel's purported view of this matter does not appear to be incorrect.
Fifth, counsel states that while the requirements of Rule 1.16 of the Model Rules are clear, the requirements set forth in Rule 1.7 of the Model Rules regarding a conflict of interest is vague, especially that portion of the rule related to the representation of clients who have "directly adverse" interests. Counsel suggests that the Court consider Mr. Robert's admission of violating Rule 1.7 of the Model Rules to be an admission "to a technical violation of a vague aspect of a vague Rule." Mot. at ¶ 5.
Sixth, counsel notes that the violations that arose here occurred at a time when Messrs. Robert and Aizawa were involved in a "then bitterly adversarial, political process, which led Mr. Robert to hesitate to communicate directly in any way with Mr. Aizawa . . . ." Mot at ¶ 6. Counsel, noting that this does not excuse Mr. Robert's violations of the Model Rules, states that this factor should be considered by the Court in connection with the imposition of any discipline.
Seventh and lastly, counsel requests that, if the Court again chooses to impose discipline that includes an assessment of costs, that the Court only assess costs incurred prior to August 14, 1999. Counsel states that because the prior disciplinary counsel neglected to leave a factual record of her investigatory efforts, the current disciplinary counsel had to conduct a duplicate fact finding mission in July 1999, shortly after this matter was remanded by the Appellate Court.
In addition, and also on October 6, 1999, Maketo Robert filed an affidavit, which he signed. In it, Mr. Robert recounts many of the circumstances surrounding his representation of Mr. Aizawa, as set forth in the pleading captioned Stipulated Facts. For example, Mr. Robert states that in July 1996, while he was representing Mr. Aizawa in Aizawa v. Billimon, CSSC Civ No. 53-85, Mr. Robert became an active supporter of a political party that challenged Mr. Aizawa and the political party he headed in an upcoming election. Mr. Robert explains in his affidavit that it was this political challenge which lead to the filing of Esa v. Niporuch Muty, CSSC Civ. No. 174-96, Esa v. Umwech and Enlet, CSSC Civ. No. 175-96. Mr. Robert, noting that Mr. Aizawa was not named as a party in either case, explains that he became involved in these cases as co-counsel because Mr. Akapito requested his assistance. Mr. Robert states that he was fearful to contact Mr. Aizawa, although he states that he realized that he "could have contacted him by letter or telephone, but did not do so." Aff. of Maketo Robert at ¶ 4. In the end, Mr. Robert avers that he violated Rules 1.7 and 1.16 of the Model Rules. Specifically, he states, under oath, "I admit to a violation of Rule 1.16(d)," Aff. of Maketo Robert at ¶ 16, and "I admit to a violation of Rule 1.7(a)," id. ¶ 17.
At the hearing on October 7, 1999, the disciplinary counsel, in her opening statement, asserted that she was prepared to present various documents along with the testimony of three witnesses that related to Mr. Robert's alleged violation of the Model Rules. In all, there were four documents offered and admitted into evidence. They were marked as Exhibits 1 through 4. Exhibit 1 is a Notice of Withdrawal as counsel that Mr. Robert signed on September 23, 1996 in the case of Aizawa v. Billimon, et al., CSSC Civ. No. 53-85. Exhibit 2 is a Certificate of Service signed by Mr. Robert on September 23, 1996 in the case of Esa v. Umwech, CSSC Civ. No. 175-96. That Certificate of Service shows that Mr. Robert served the defendant Governor of Chuuk with a copy of the plaintiff petition for writ of mandamus on September 18, 1996. Exhibit 3 is a Notice of Entry of Appearance as Co-counsel for Plaintiff that Mr. Robert signed on September 23, 1996 in the case of Esa v. Niporuch Muty, CSSC Civ. No. 174-96. Exhibit 4 is a Certificate of Service signed by Mr. Robert on September 23, 1996 in the case of Esa v. Umwech, CSSC Civ. No. 175-96. That Certificate of Service shows that Mr. Robert served the defendant Chuuk State Election Commissioner with a copy of the plaintiff's petition for a writ of mandamus on September 18, 1996.
The individuals that the disciplinary counsel intended to call as witnesses included the complainant, Mr. Aizawa, as well as Julio Akapito and Johnny Meippen. Subpoenas commending the attendance of these witnesses at the October 7, 1999 hearing were issued on September 24, 1999.
In his opening statement, counsel for Maketo Robert noted that he and the disciplinary counsel had filed a pleading captioned as Stipulated Facts, in which his client had admitted to violating Rules 1.7 and 1.16 of the Model Rules. Counsel further noted that his client had filed a signed affidavit with the Court in which he again admitted to violating Rules 1.7 and 1.16 of the Model Rules. Counsel moved to admit the affidavit of Maketo Robert into evidence.5 This document was identified as Exhibit A. Counsel further stated that the only person he planned to call upon for testimony was his client,
Mr. Robert.
With regard to the affidavit by Mr. Robert, upon questioning by the Court, Mr. Robert stated that he had reviewed the affidavit and signed it in preparation for the October 7, 1999 hearing. Mr. Robert then stated to the Court that he freely admitted to violating Rules 1.7 and 1.16 of the Model Rules. Mr. Robert further stated that his admission to Rule 1.7 was based upon his concurrent representation of clients with adverse interests, i.e., representing Mr. Aizawa in Aizawa v. Billimon, et al., CSSC Civ. No. 53-85, at the same time that he represented the plaintiffs in Esa v. Niporuch Muty, CSSC Civ. No. 174-96, and Esa v. Umwech, CSSC Civ. No. 175-96. Mr. Robert also stated that he was admitting to a violation of Rule 1.16 of the Model Rules based upon his withdrawal of representation of Mr. Aizawa in Aizawa v. Billimon, et al., CSSC Civ. No. 53-85, without first consulting his client. Mr. Robert acknowledged that he was aware of his right to have a hearing, that he was freely waiving that right, and that he was admitting to violating Rules 1.7 and 1.16 of the Model Rules. Mr. Robert stated that he was aware that he could be disciplined for admitting these violations of the Model Rules and that he would accept any discipline that was imposed by the Court.
Based upon the pleadings filed in this matter, the documents submitted as evidence during the October 7, 1999 hearing, including the affidavit of Maketo Robert, and his statements during the October 7, 1999 hearing, the Court finds that Mr. Robert violated Rules 1.7 and 1.16 of the Model Rules. The signed affidavit of Maketo Robert clearly and unequivocally states that he "admit[s] to a violation of Rule 1.16(d). . . . [and to] a violation of Rule 1.7(a)." Aff. of Maketo Robert at ¶¶ 16 and 17. The Court finds that this, along with all of the other evidence submitted to the Court, constitutes clear and convincing evidence to establish that violations of the Model Rules occurred. See In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165, 173 (App. 1999) (citing In re Medrano, 956 F.2d 101, 102 (5th Cir. 1992) (the clear and convincing standard is that which enables the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case)).
Having concluded that Mr. Robert violated Rules 1.7 and 1.16 of the Mode Rules, the Court, after considering the views expressed by the disciplinary counsel as well as counsel for Maketo Robert, hereby imposes the following discipline:
1. Mr. Robert is hereby suspended from practicing before the Supreme Court of the Federated States of Micronesia for a period of ten (10) months for each of his violation of the Model Rules. These suspensions will run concurrently, beginning 30 days from the date that the Clerk of Court enters this Order. See FSM Dis. R. 12(c). This suspension will apply to all matters, including current and prior cases now pending before this Court, with the exception of Chuuk State et al. v. Secretary of Department of Finance, P4-1999, and any case in which Mr. Robert is a pro se litigant.
2. In the event that Mr. Robert is reinstated under Rule 13 of the Disciplinary Rules, his future practice of law will be supervised as follows:
a) for a period of one year following his reinstatement, Mr. Robert must notify the Court of each client whom he intends to represent. In doing so, Mr. Robert must identify the matter in which he will represent that client and the identify of all other clients he is currently representing along with a list of each matter in which he represents those clients. Mr. Robert must also indicate to the Court that his representation of the client whom he intends to represent will not result in a violation of Rule 1.7 of the Model Rules and provide the basis for his determination.
b) for a period of one year following his reinstatement, Mr. Robert must notify the Court of each client whom he intends to cease representing, including the matter from which he intends to withdraw, the date on which he intends to withdraw as counsel, and the steps he intends to take to protect his client's interest. In doing so, Mr. Robert must indicate to the Court that the steps he intends to undertake following his withdrawal as counsel will not result in a violation of Rule 1.16 of the Model Rules. Mr. Robert also must provide the basis for his determination.
3. Mr. Robert is hereby assessed the costs incurred by the current disciplinary counsel to prosecute the complaint in this matter, following the issuance of the June 24, 1999 Decision from the Appellate Division which vacated this Court's Orders of September 2, 1998, and September 14, 1998. The current disciplinary counsel is hereby ordered to submit to the Court, within sixty days from the date that this order is entered, the itemized costs, excluding salaries, but including airfare, per diem, and car rentals, that were incurred in connection with the prosecution of this matter. This itemization must be calculated and certified by the Secretary of Finance for the Federated States of Micronesia. Upon review, the Court will notify the respondent of these costs, with directions as to how these costs may be satisfied.
4. Mr. Robert is required to abide by the provisions of the Disciplinary Rules during his suspension, including Rule 12, which governs disbarred or suspended attorneys.
_______________________________Footnotes:
1 Mr. Robert actually was suspended from practicing before this Court for one year for each of his violations of Rules 1.7 and 1.16 of the Model Rules. However, because these suspensions ran concurrently, he was, in effect suspended from practice for a period of one year.
2 Mr. Robert filed his notice of appeal on October 9, 1998. Thereafter, on November 11, 1998, this Court, upon motion by Mr. Robert, issued an order staying the discipline imposed upon him, as set forth in the Court's Order of September 14, 1998.
3 Aizawa v. Billimon, et al., Civ. No. 53-85, was pending before the Chuuk State Supreme Court.
4 Both Esa v. Niporuch Muty, Civ. No. 174-96, and Esa v. Umwech and Enlet, Civ. No. 175-96, were pending before the Chuuk State Supreme Court.
5 Counsel stated during the hearing that paragraph 12 of the affidavit should be corrected to read "September 15, 1996," rather than "September 15, 1999." Aff. of Maketo Robert at ¶ 12 (emphasis added).
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