In re Sanction of Woodruff [2000] FMSC 8; 9 FSM Intrm. 414 (App. 2000) (5 June 2000)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite case as In re Sanction of Woodruff[2000] FMSC 8; , 9 FSM Intrm 414 (App. 2000)

IN THE MATTER OF THE SANCTION OF ATTORNEY JAMES P. WOODRUFF,
Appellant.

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APPEAL CASE NO. P2-2000

ORDER

Richard H. Benson
Associate Justice

Decided: June 5, 2000

APPEARANCE:

For the Appellees:
Stephen V. Finnen, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

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HEADNOTES

Appeal and Certiorari - Briefs and Record
An appellee who fails to file a brief will not be heard at oral argument except by the court's permission. In re Sanction of Woodruff[2000] FMSC 8; , 9 FSM Intrm. 414, 415 (App. 2000).

Appeal and Certiorari - Briefs and Record; Attorney, Trial Counselor and Client
Although certain consequences flow from the failure to file a brief, appellees' attorneys are not otherwise under an obligation to the court to file briefs, but may be under a professional ethical obligation to their clients to do so, or may be subject to malpractice liability if an appellee is in the end prejudiced by his attorney's failure to file. In re Sanction of Woodruff[2000] FMSC 8; , 9 FSM Intrm. 414, 415 (App. 2000).

Attorney, Trial Counselor and Client
A court cannot unilaterally relieve an attorney of his obligations to his clients. It is initially the attorney's responsibility, in consultation with his clients, to determine where his obligations and duties lie and if they will be satisfied by not participating in an appeal, and proceed accordingly. In re Sanction of Woodruff[2000] FMSC 8; , 9 FSM Intrm. 414, 415 (App. 2000).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

On May 5, 2000, the attorney for defendants M/V Miyo Maru No. 11, Hisamitsu Furuta, and Masayo Furuta in Civil Action No. 1994-136 (the trial division case out of which this appeal arose) filed a request that the court relieve him of the obligation to file a brief or appear at oral argument on his clients' behalf in this appeal. He states that this limited appeal of an attorney sanction contains no issues that involve his clients and that no appellate rule addresses this point.

I believe that Appellate Procedure Rule 31(c) may address this situation. It provides that an "appellee who fails to file a brief will not be heard at oral argument except by permission of the court." FSM App. R. 31(c). Although certain consequences flow from the failure to file a brief, appellees' attorneys are not otherwise under an obligation to the court to file briefs, but may be under a professional ethical obligation to their clients to do so, see FSM MRPC R. 1.2(a), 1.3 (duty to abide by client's decisions concerning representation's objectives; duty to be reasonably diligent in representing client), or may be subject to malpractice liability if an appellee is in the end prejudiced by his attorney's failure to file.

I do not believe that the court can unilaterally relieve an attorney of his obligations to his clients. It is initially the attorney's responsibility, in consultation with his clients, to determine where his obligations and duties lie and if they will be satisfied by not participating in an appeal, and proceed accordingly. I will therefore not enter an order "relieving" the attorney of whatever obligation he might have to file a brief and appear. Nor will I issue an order compelling the attorney to brief and argue in an appeal in which his clients may have no interest whatsoever.