Oster v Bisalen [1996] FMCSC 6; 7 FSM Intrm. 414 (Chk. S. Ct. Tr. 1996) (14 March 1996)

CHUUK STATE SUPREME COURT
TRIAL DIVISION
Cite as Oster v Bisalen, [1996] FMCSC 6; 7 FSM Intrm. 414 (Chk. S. Ct. Tr. 1996)

KARUO OSTER, TONY ROSOKOW, ERMINO FRITZ, ERIANO ERAM, KERETA DEREAS, RYSANG SIMINA and OSUPWANG RIKAT, on behalf of themselves and all other persons similarly situated,
Plaintiffs,

vs.

WILIPINAT BISALEN, in his official capacity as Director of Treasury, and CHUUK STATE,
Defendants.

CSSC-CA-NO. 267-95

ORDER

Richard H. Benson
Special Trial Court Justice

Decided: March 14, 1996

APPEARANCES:

For the Plaintiffs:
Midasy Aisek
Micronesian Legal Services Corporation
P.O. Box D
Weno, Chuuk FM 96942

For the Defendants:
Kachuo Eko
Assistant Attorney General
Office of the Chuuk Attorney General
P.O. Box 189
Weno, Chuuk FM 96942

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HEADNOTE

Attorney, Trial Counselor and Client - Disqualification of Counsel
A trial counselor who is a member of a plaintiff class that is seeking money damages from the state has a conflict and cannot represent the state and will be allowed to withdraw. Oster v. Bisalen, [1996] FMCSC 6; 7 FSM Intrm. 414, 415 (Chk. S. Ct. Tr. 1996).

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COURT'S OPINION

RICHARD H. BENSON, Special Trial Court Justice:

This case came before me on the motion of Mr. Kachuo Eko to withdraw as counsel for the defendants. The plaintiffs filed their response to the motion. On March 4, 1996, a conference on the record was held with the parties present, and the motion was granted.

The plaintiffs in this case allege that they are employees of Chuuk State who have had allotments deducted from their paychecks by the defendants, but the defendants have failed to pay the amounts so deducted to the creditor allotees. The complaint asks the court to certify as a class all other Chuuk State employees similarly situated.

Mr. Eko is a member of the class-that is, he is a Chuuk State employee who has had allotments taken out of his pay. Those deductions, however, have not been delivered by the State to his creditors.

Three of the named plaintiffs are prosecuting attorneys in the same office as Mr. Eko, the office of the Attorney General of Chuuk State.

The Model Code of Professional Responsibility governs the ethical conduct of practitioners appearing before this court. Truk State Bar R. 13(a). A lawyer may refuse to represent a client when his financial interest may impair his independent professional judgment. MCPR DR 5-101(A). Such representation may be undertaken if the client consents after full disclosure by the lawyer of his interest in the case. Id. Whether this was done or could be done was not presented to me.

The problem of Mr. Eko representing interests of the defendants which directly conflict with the claims of the three members of his law firm presents an ethical problem which cannot be consented to by the client. It would be unethical for him to do so. MCPR DR 5-101(A) & (B); ABA Opinion 296 (1959). Mr. Eko's withdrawal is therefore proper. MCPR DR 2-110(B)(2).

It is therefore ordered that Kachuo Eko withdraw as lawyer for the defendants.

It is further ordered that the defendants employ counsel who, by March 25, 1996, shall file and serve his or her notice of appearance.

It is further ordered that the answer filed by Mr. Eko on January 24, 1996 is stricken.

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