Atesom v Kukkun [2003] FMSC 29; 11 FSM Intrm. 400 (Chk. 2003) (3 March 2003)

FSM SUPREME COURT TRIAL DIVISION
Cite as Atesom v. Kukkun
[2003] FMSC 29; 11 FSM Intrm. 400 (Chk. 2003)

[2003] FMSC 29; [11 FSM Intrm. 400]

IC ATESOM,
Plaintiff,

vs.

KES KUKKUN, SATAMICHY ANGANG, all
individually, and in their official capacities,
and CHUUK STATE,
Defendants.

CIVIL ACTION NO. 1999-1018

ORDER ADMONISHING COUNSEL

Andon L. Amaraich
Chief Justice

Decided: March 3, 2003

APPEARANCE:

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

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[11 FSM Intrm. 401]

HEADNOTES

Contempt
Contempt of court is any intentional obstruction of the administration of justice by any person or any intentional disobedience or resistance to the court’s lawful writ, process, order, rule, decree, or command. Atesom v. Kukkun, [2003] FMSC 29; 11 FSM Intrm. 400, 402 (Chk. 2003).

Attorney, Trial Counselor and Client - Attorney Discipline and Sanctions; Contempt
While the court cannot find, beyond a reasonable doubt, that an attorney intended either to obstruct the administration of justice or to disobey the court’s order since he thought the order did not apply to him because he believed he was no longer counsel and he thought (at that time) that he had informed the court of that, it can conclude that the attorney’s conduct falls below that expected of someone admitted to the FSM bar. Atesom v. Kukkun, [2003] FMSC 29; 11 FSM Intrm. 400, 402 (Chk. 2003).

Attorney, Trial Counselor and Client
While counsel may be engaged for only limited purposes, it is expected that the court and the other parties would be so informed on the record at the representation’s start. If the court has not been so informed, the court and the other parties, must presume that counsel is the counsel of record for all purposes whatsoever. Atesom v. Kukkun, [2003] FMSC 29; 11 FSM Intrm. 400, 402 (Chk. 2003).

Attorney, Trial Counselor and Client; Attorney, Trial Counselor and Client - Withdrawal of Counsel
When the court has not been notified on the record at the representation’s start that counsel’s representation was limited, counsel then must seek the court’s permission to withdraw when he believes his representation has come to an end. He then remains counsel of record until, and if, the court grants him permission to withdraw. Atesom v. Kukkun, [2003] FMSC 29; 11 FSM Intrm. 400, 402 (Chk. 2003).

Attorney, Trial Counselor and Client - Withdrawal of Counsel
Counsel’s failure to follow the rules in withdrawing from a case can come back to haunt him. Atesom v. Kukkun, [2003] FMSC 29; 11 FSM Intrm. 400, 402 (Chk. 2003).

Attorney, Trial Counselor and Client - Withdrawal of Counsel
Counsel’s merely relying on his hope that verbally informing the clerk that he was no longer counsel would be sufficient to withdraw as counsel is not enough. Atesom v. Kukkun, [2003] FMSC 29; 11 FSM Intrm. 400, 402 (Chk. 2003).

Attorney, Trial Counselor and Client - Attorney Discipline and Sanctions
A proper sanction is to admonish an attorney in the strongest terms for his failure, as counsel of record, to appear at a scheduled hearing. Further such inattentiveness and lack of diligence may require the attorney’s referral to the attorney disciplinary process. Atesom v. Kukkun, [2003] FMSC 29; 11 FSM Intrm. 400, 402 (Chk. 2003).

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COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

On September 2, 2002, this came before the court for hearing on the plaintiff’s motion for order in aid of judgment. Neither Kes Kukkun, Satamichy Angang, nor their counsel of record, Johnny Meippen appeared. Defendants Kukkun and Angang had not been ordered to appear personally. Counsel’s non-appearance was unexplained. By court order entered and served on September 4, 2002

[11 FSM Intrm. 402]

attorney Meippen was ordered to appear on September 25, 2002, to show cause why he should not be held in contempt for his non-appearance. On September 25, 2002, at the call of the case, the court continued the contempt matter until a later time when the court would be present on Chuuk. The matter was heard on February 26, 2003.

During the hearing, the respondent, attorney Meippen, stated that his representation agreement (which was not in writing) was that he would represent defendants Kes Kukkun and Satamichy Angang only during trial and on any appeal, if there was one. Judgment was entered on March 5, 2001, and there was no appeal. The September 2nd hearing was long after trial and after the time to appeal had expired. Attorney Meippen, when served with the notice of the September 2nd hearing, orally informed the assistant clerk of court that he no longer represented Kukkun and Angang because he had represented them only for trial purposes. He stated that at that time he assumed that the clerk would notify the court and that the court would then serve Kukkun and Angang directly, although he is now not so sure that that one step was all that was needed.

Contempt of court is "(a) any intentional obstruction of the administration of justice by any person . .&#160 (b) any intentional onal disobedience or resistance to the court’s lawful writ, process, order, rule, decree, or command." 4 F.S.M.C. 119(1). From whatefore me, I cannot find, beyond a reasonable doubt, that Meat Meippen intended either to obstruct the administration of justice or to disobey the court’s order. He thought the order did not apply to him because he believed he was no longer counsel and he thought (at that time) that he had informed the court of that.

However, Meippen’s conduct falls below that expected of someone admitted to the FSM bar. While counsel may be engaged for only limited purposes, see FSM MRPC R. 1.2 cmt., it is expected that the court and the other parties would be so informed on the record at the representation’s start. If the court has not been so informed, the court and the other parties, must presume that counsel is the counsel of record for all purposes whatsoever. See Beal Bank S.S.B. v. Salvador, [2003] FMSC 8; 11 FSM Intrm. 349, 350 (Pon. 2003). When the court has not been notified on the record at the representation’s start that counsel’s representation was limited, counsel then must seek the court’s permission to withdraw when he believes his representation has come to an end. Cf. FSM MRPC R. 1.16. He then remains counsel of record until, and if, the court grants him permission to withdraw. FSM MRPC R. 1.16(c). Counsel’s failure to follow the rules in withdrawing from a case can come back to haunt him. See, e.g., Daniel W. Hildebrand, Withdrawal, Do it by the Rules, A.B.A.J., Dec. 1998, at 65.

Meippen did not do any of this. Instead he merely relied on his hope that verbally informing the clerk he was no longer counsel would be sufficient. It was not, and is not, enough.

This is not the first time something like this has occurred in this case. On July 18, 2000, the trial justice then presiding over this case issued his Order Admonishing Counsel, directed at Mr. Meippen. In that order attorney Meippen was sanctioned by admonishment for his failure to appear at a March 10, 2000 pretrial hearing and his failure to file a proposed schedule as ordered.

The court therefore concludes that the proper sanction is to, by this order, admonish attorney Meippen in the strongest terms for his failure, as counsel of record, to appear at the September 2, 2002 hearing. Any further such inattentiveness and lack of diligence may require attorney Meippen’s referral to the attorney disciplinary process.

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