Triple J Enterprises v Kolonia Consumer Cooperative Association [1996] FMSC 42; 7 FSM Intrm. 385 (Pon. 1996) (9 February 1996)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Triple J Enterprises v Kolonia Consumer Cooperative Association, [1996] FMSC 42; 7 FSM Intrm. 385 (Pon. 1996)

TRIPLE J ENTERPRISES
Plaintiff,

vs.

KOLONIA CONSUMER COOPERATIVE ASSOCIATION,
Defendant.

CIVIL ACTION NO. 1995-117

ORDER AND MEMORANDUM OF DECISION

Martin Yinug
Associate Justice

Decided: February 9, 1996

APPEARANCES:

For the Plaintiff:
Ron Moroni, Esq.
P.O. Box 1618
Kolonia, Pohnpei FM 96941

For the Defendant:
Delson Ehmes, Esq.
P.O. Box 1018
Kolonia, Pohnpei FM 96941

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HEADNOTES

Attorney, Trial Counselor and Client - Disqualification of Counsel
Although an attorney is competent to testify as a witness on behalf of a client, testimony by an attorney representing a party, except in limited circumstances, creates a conflict of interest. An attorney under such a conflict has an ethical duty to withdraw from representation, except in limited cases, including where disqualification would cause an undue hardship to the client. Determining whether a conflict exists is primarily the responsibility of the lawyer involved. Triple J Enterprises v. Kolonia Consumer Coop. Ass'n, [1996] FMSC 42; 7 FSM Intrm. 385, 386 (Pon. 1996).

Attorney, Trial Counselor and Client
While it may be unethical for an attorney to testify at a trial in which he is an advocate, no actual conflict exists when the attorney has not yet been called to testify and the case may be resolved without a trial. Triple J Enterprises v. Kolonia Consumer Coop. Ass'n, [1996] FMSC 42; 7 FSM Intrm. 385, 386 (Pon. 1996).

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COURT'S OPINION

MARTIN YINUG, Associate Justice:

On November 20, 1995, the plaintiff, Triple J Enterprises, Inc., ("Triple J") filed a Motion for an Order that Delson Ehmes Withdraw as Counsel for KCCA. Triple J claimed that it may call Mr. Ehmes as a witness, placing him in a conflict of interest with his client, KCCA.[1] KCCA timely opposed the motion on the grounds that ordering Mr. Ehmes to withdraw as counsel would work an undue hardship on KCCA.

Generally, an attorney is competent to testify as a witness on behalf of a client. 81 Am. Jur. 2d Witnesses § 225, at 225 (1992). But testimony by an attorney representing a party, except in limited circumstances, creates a conflict of interest. FSM MRPC 3.7(a). An attorney under such a conflict has an ethical duty to withdraw from representation, except in limited cases, including where disqualification would cause an undue hardship to the client. FSM MRPC 3.7(a)(3). Determining whether a conflict exists is primarily the responsibility of the lawyer involved. FSM MRPC 3.7, 1.7 cmts. The obligation to identify the conflict and withdraw from representation is, in the first instance, on Mr. Ehmes, the attorney who may have a conflict.

Model Rule 3.7 says that it may be unethical for an attorney to testify at a trial in which he is an advocate. No trial is scheduled in this action. Triple J claims it needs to depose Mr. Ehmes, but has yet to notice his deposition. Moreover, Triple J has moved, on the same day it moved herein, for summary judgment, taking the position that no trial or discovery is necessary.

The Motion for Delson Ehmes to Withdraw as Counsel for KCCA is denied without prejudice. There is no actual conflict of interest because Mr. Ehmes has not been called to testify. The Court is aware that there is a potential conflict of interest. Should Mr. Ehmes be called to testify, he is under an ethical obligation to resolve his conflict of interest. Triple J may object if Mr. Ehmes's actual conflict may prejudice its own rights in the litigation.

The motion is denied, without prejudice.

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^[1] In this Motion, plaintiff's counsel signed two papers with incorrect captions. FSM Civil Rule 11 requires the attorney who signs a paper to read it before filing it. Plaintiff's counsel is admonished to read his papers more carefully, and to make corrections promptly.