In re Nomun Weito Interim Election [2003] FMCSC 4; 11 FSM Intrm. 458 (Chk. S. Ct. App. 2003) (9 April 2003)

CHUUK STATE SUPREME COURT APPELLATE DIVISION
Cite as In re Nomun Weito Interim Election
[2003] FMCSC 4; 11 FSM Intrm. 458 (Chk. S. Ct. App. 2003)

[2003] FMCSC 4; [11 FSM Intrm. 458]

IN THE MATTER OF THE INTERIM ELECTION FOR
NOMUN WEITO, HOUSE OF REPRESENTATIVES

-------------------------------------------------

VICKY DAWE, in her capacity as an eligible voter
of the Nomun Weito,
Petitioner-Appellant,

vs.

THE CHUUK ELECTION COMMISSION, its
MEMBERS in their official capacities, THE
EXECUTIVE DIRECTOR of said Commission, in
his official capacity, and MARINO RICKY, the
real party in interest,
Respondents-Appellees.

CSSC APPEAL NO. 04-2003

MEMORANDUM OF DECISION

Hearing: April 4, 2003
Decided: April 8, 2003
Order Entered: April 9, 2003

Keske S. Marar
Associate Justice

APPEARANCES:

For the Petitioner: Wesley Simina, Esq.
P.O. Box 94
Weno, Chuuk FM 96942

[11 FSM Intrm. 459]

For the Appellees: Johnny Meippen, Esq.
P.O. Box 705
Weno, Chuuk FM 96942

For the Real Party in Interest: Julio M. Akapito
P.O. Box 303
Weno, Chuuk FM 96942

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HEADNOTES

Attorney, Trial Counselor and Client - Disqualification of Counsel
The relevant inquiry when conflicting representation is alleged is whether the subject matter of the two representations is substantially related. If the attorney could have obtained confidential information in representing one party that he could thereafter use in representing the second client, the interests are conflicting and the attorney must be disqualified. In re Nomun Weito Interim Election[2003] FMCSC 4; , 11 FSM Intrm. 458, 460 (Chk. S. Ct. App. 2003).

Attorney, Trial Counselor and Client - Disqualification of Counsel
A party alleging representation of conflicting interests must show that there is a substantial relationship between the subject matters of the representations. This is especially so where the party seeking the disqualification is only a "vicarious" client. In re Nomun Weito Interim Election[2003] FMCSC 4; , 11 FSM Intrm. 458, 460 (Chk. S. Ct. App. 2003).

Attorney, Trial Counselor and Client - Disqualification of Counsel; Business Organizations - Partnership
The principal duty of an attorney appointed as general counsel for a partnership is to the partnership itself, not to the general or limited partners as individuals. In re Nomun Weito Interim Election[2003] FMCSC 4; , 11 FSM Intrm. 458, 460 (Chk. S. Ct. App. 2003).

Attorney, Trial Counselor and Client - Disqualification of Counsel
If each member of the Chuuk Legislature could consider the Legislative Counsel his "personal lawyer," then the Legislative Counsel would have perpetual conflicts of interest which would prevent him from providing legal counsel and advice to his true client, the Legislature as a collective body. The fact that the Legislature retains counsel to serve its collective interests does not entitle every member to assert the disqualification of that counsel in an unrelated matter, where only the member’s personal interests are involved. In re Nomun Weito Interim Election[2003] FMCSC 4; , 11 FSM Intrm. 458, 460 (Chk. S. Ct. App. 2003).

Attorney, Trial Counselor and Client - Disqualification of Counsel
A motion to disqualify appellant’s counsel in an election contest will be denied when appellee’s claim of "vicarious" representation fails due to a complete lack of evidence demonstrating that the counsel provided to the Sixth Chuuk Legislature is substantially related to the issues presented in this election contest, namely the election of a member to the House of Representatives for the Seventh Chuuk Legislature. In re Nomun Weito Interim Election, [2003] FMCSC 4; 11 FSM Intrm. 458, 460-61 (Chk. S. Ct. App. 2003).

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[11 FSM Intrm. 460]

COURT’S OPINION

KESKE S. MARAR, Associate Justice:

At the pre-hearing conference in the above-captioned matter, counsel for Appellee Marino Ricky moved to disqualify counsel for Appellant, Wesley Simina, Esq., on the grounds that Appellee had an attorney-client relationship with Mr. Simina which was in conflict with Mr. Simina’s representation of Appellant. Prior to the commencement of the trial of this appeal on April, 8, 2003, the Presiding Justice announced in open court that the motion was denied. The Presiding Justice makes this ruling pursuant to CSSC Appellate Rule 33, permitting a single justice to rule on certain matters without the participation of the entire appellate panel. This memorandum and order is intended to set forth the Court’s reasons for denial of the motion to disqualify.

The factual basis for Appellee’s motion was the legal services Mr. Simina rendered to the Chuuk State Legislature as Temporary Legislative Counsel from March 24, 2003 through April 7, 2003. Appellee Ricky, as a current member of the Sixth Chuuk State Legislature, asserted that Mr. Simina’s temporary employment as Legislative Counsel to the Chuuk State Legislature made Appellee Ricky Mr. Simina’s employer. He argued that Mr. Simina’s representation of Appellant, who challenges the March 4, 2003 election results in Unanu (Onari), is in conflict with Mr. Simina’s alleged duty to the individual members of the Sixth Chuuk State Legislature.

The legal ground for Appellee’s argument is the prohibition in the Model Code of Professional Conduct against an attorney representing conflicting interests. Appellee misunderstands both the rule and its application to the case at bar.

The relevant inquiry where conflicting representation is alleged is whether the subject matter of the two representations is substantially related. If the attorney could have obtained confidential information in representing one party that he could thereafter use in representing the second client, the interests are conflicting and the attorney must be disqualified. Borges v. Our Lady of the Sea Corp., [1991] USCA1 313; 935 F.2d 436 (1st Cir. 1991).

A party alleging representation of conflicting interests must show that there is a substantial relationship between the subject matters of the representations. Hartford Accident & Indem. Co. v. RJR Nabisco, Inc., 721 F. Supp. 534 (W.D.N.Y. 1994). This is especially so where the party seeking the disqualification is only a "vicarious" client. British Airways, PLC v. Port Auth. of N.Y. & N.J., 862 F. Supp. 889 (E.D.N.Y. 1994).

It has been held that the principal duty of an attorney appointed as general counsel for a partnership is to the partnership itself, not to the general or limited partners as individuals. Prisco v. Westgate Entertainment, Inc., 799 F. Supp. 266 (D. Conn. 1992).

Simply put, Appellee Ricky has not demonstrated or provided any evidence that Mr. Simina has ever represented Appellee in any matters substantially related to the issues raised in this action. If each member of the Chuuk State Legislature could consider the Legislative Counsel his "personal lawyer," then the Legislative Counsel would have perpetual conflicts of interest which would prevent him from providing legal counsel and advice to his true client, the Legislature as a collective body. The fact that the Legislature retains counsel to serve its collective interests does not entitle every member to assert the disqualification of that counsel in an unrelated matter, where only the member’s personal interests are involved.

Appellee has failed to produce any evidence of any attorney client relationship between Appellee

[2003] FMCSC 5; [11 FSM Intrm. 461]

and Mr. Simina. Appellee’s claim of "vicarious" representation fails due to a complete lack of evidence demonstrating that the representation provided by Mr. Simina to the Sixth Chuuk State Legislature is substantially related to the issues presented in this election contest, namely the election of a member to the House of Representatives for the Seventh Chuuk State Legislature.

THEREFORE, good cause appearing, and for the reasons set forth above, the motion of Appellee Marino Ricky to disqualify counsel for Appellant was denied in open court on April 8, 2003.

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