In re Fritz [2007] FMSC 11; 14 FSM Intrm. 563 (Pon. 2007) (5 March 2007)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as In re Fritz[2007] FMSC 11; , 14 FSM Intrm. 563 (Pon. 2007)

IN THE MATTER OF

ATTORNEY JACK FRITZ.

DPA NO. 001-2005

ORDER OF SUSPENSION

Martin Yinug
Associate Justice

Hearing: December 19, 2005
Decided: April 24, 2006
Entered Nunc Pro Tunc: March 5, 2007

APPEARANCES:

Complainant’s Counsel:
Matthew L. Olmsted, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Respondent:
Jack Fritz, Esq., pro se
P.O. Box 788
Weno, Chuuk FM 96942

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HEADNOTES

Attorney and Client - Attorney Discipline and Sanctions
When an attorney has been convicted of a felony, Disciplinary Rule 10 places the burden on the respondent to prove that he or she should not be suspended pending the outcome of the disciplinary proceeding. An interim suspension may be terminated or modified upon showing of extraordinary circumstances. A weaker standard would subvert the purpose of the Rule 10 suspension, which is to protect the public and the integrity of profession from an attorney who has been convicted of serious crime. In re Fritz[2007] FMSC 11; , 14 FSM Intrm. 563, 564-65 & n.1 (Pon. 2007).

Attorney and Client - Attorney Discipline and Sanctions; Constitutional Law - Judicial Guidance Clause
The court is bound by Article XI, Section 11, but when the respondent attorney has not pointed to any custom or tradition that either excuses his actions or provides the extraordinary circumstances necessary to prevent the court from suspending him and when he has been convicted of four felony violations of the Financial Management Act and an element of each of those crimes is that a government official act knowingly and willingly, there is conclusive evidence before the court (Disciplinary Rule 10(b) states that a final conviction is conclusive evidence of the crime) that the respondent attorney acted dishonestly and fraudulently since the legislature has decided that the actions taken by respondent attorney are bad, immoral, and unethical since they are crimes punishable by up to twenty years imprisonment. In re Fritz[2007] FMSC 11; , 14 FSM Intrm. 563, 565 (Pon. 2007).

[14 FSM Intrm. 562]

Attorney and Client - Attorney Discipline and Sanctions
Even if the court were to accept as true the respondent attorney’s assertion that his conviction has not adversely affected the public’s views on his integrity, honesty, and untrustworthiness, that conclusion would not end the matter since the court has a duty to protect and advance the public’s trust in the judicial system and therefore in officers of the court and if that trust is in such a state that the public’s perception is not adversely affected when convicted felons are permitted to act as officers of the court, then it may be the court’s duty to help improve the public’s perception. In re Fritz[2007] FMSC 11; , 14 FSM Intrm. 563, 565 (Pon. 2007).

Attorney and Client - Attorney Discipline and Sanctions
That there are no other local private attorneys who are available to provide legal services to the public in Chuuk does not alone constitute extraordinary circumstances that would allow the court to refrain from suspending the respondent attorney. In re Fritz[2007] FMSC 11; , 14 FSM Intrm. 563, 565-66 (Pon. 2007).

Attorney and Client - Attorney Discipline and Sanctions
When a respondent attorney is suspended from the practice of law, he is advised to take all actions required of him by the Disciplinary Rules and in particular must perform the actions required by Disciplinary Rule 12. In re Fritz[2007] FMSC 11; , 14 FSM Intrm. 563, 566 (Pon. 2007).

Attorney and Client - Attorney Discipline and Sanctions
A term of suspension under Disciplinary Rule 10 runs until the court enters a final order of discipline in or dismisses the disciplinary action. In re Fritz[2007] FMSC 11; , 14 FSM Intrm. 563, 566 (Pon. 2007).

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COURT’S OPINION

MARTIN YINUG, Associate Justice:

I. Introduction

On June 2, 2005, the court received certification from the Clerk of Court that Attorney Jack Fritz ("Respondent") was convicted of four felonies on August 23, 2004. Pursuant to Disciplinary Rule 10(a) an order was entered requiring Respondent to show cause why he should not be suspended from the practice of law pending the final disposition of the disciplinary proceeding instituted by the filing of the disciplinary complaint on April 29, 2005.

A show cause hearing was held on December 19, 2005. The court ordered the complainant, Assistant Attorney General of the FSM, Matthew Olmsted, and Respondent to file briefs on whether extraordinary circumstances existed to warrant the exercise the court’s discretion not to suspend Respondent pending the final disposition of the disciplinary proceeding.

The court having considered the arguments at the show cause hearing and the briefs filed thereafter, finds that such extraordinary circumstances do not exist and that Respondent should be suspended from the practice of law.

[2007] FMSC 11; [14 FSM Intrm. 563] II. Discussion

Where an attorney has been convicted of a felony, Rule 10 places the burden on the respondent to prove that he or she should not be suspended pending the outcome of the disciplinary proceeding.^[1]

The rule does not state the standard of proof the respondent must meet. However, the American Bar Association’s Model Rules for Lawyer Disciplinary Enforcement, the rules upon which the FSM Diplomacy Rules and Procedures were modeled, provide that an interim suspension may be terminated or modified upon showing of extraordinary circumstances. See Model Rules of Lawyer Disciplinary Enforcement, Rule 19(D)(2) and Commentary. A weaker standard would subvert the purpose of the Rule 10 suspension, which is to protect the public and the integrity of profession from an attorney who has been convicted of serious crime.

Respondent argues that the mandate of Article XI, Section 11 of the FSM Constitution that the court’s decision be consistent with Micronesian custom and tradition requires the court to look to the Chuukese community’s ethical norms and apply those to the misconduct that led to Respondent’s conviction. Respondent’s Br. at 2. Respondent does not define these ethical norms, but suggests that the conduct for which he was convicted is not viewed as bad, immoral, or unethical by the general public, and that the general public believes that the prosecution was political and that Respondent has not been treated fairly. Id. at 3, 7.

This court is surely bound by Article XI, Section 11, but Respondent has not pointed to any custom or tradition that either excuses his actions or provides the extraordinary circumstances necessary to prevent the court from suspending him. Disciplinary Rule 10(b) states that a final conviction is conclusive evidence of the crime. Here, Respondent has been convicted of four felony violations of the Financial Management Act, which criminalizes the obligation of funds for purposes other than those permitted and the obligation of funds before they are available. 55 F.S.M.C. 221, 223. An element of each of those crimes is that a government official act knowingly and willingly. 55 F.S.M.C. 223. Before the court is conclusive evidence that Respondent acted dishonestly and fraudulently. Contrary to Respondent’s contentions, the public, through its elected representatives in the legislature has decided that the actions taken by Respondent are bad, immoral, and unethical and has made those actions crimes punishable by up to twenty years imprisonment. Id.

Respondent further argues that the actions he took which led to his convictions have not adversely affected the public’s views on his integrity, honesty and trustworthiness with regard to his practice before the FSM Supreme Court. Respondent’s Br. at 10. His support for this contention is that the actions that led to his conviction did not constitute any acts of dishonesty. Id. at 13.

Again, the court has conclusive evidence before it that his conviction did involve acts of dishonesty. Even if the court were to accept as true Respondent’s assertion that his conviction has not adversely affected the public’s views on his integrity, honesty, and untrustworthiness, that conclusion would not end the matter. One of the court’s duties in this area is to protect and advance the public’s trust in the judicial system and therefore in officers of the court. If that trust is in such a state that the public’s perception is not adversely affected when convicted felons are permitted to act as officers of the court (and the court does not think it is), then it may be the court’s duty to help improve the public’s perception.

Finally, Respondent argues that public policy favors allowing him to continue practicing law because there are no other local private attorneys who are available to provide legal services to the public in Chuuk. Id. at 14. It is unfortunate that there are few attorneys available to the public in Chuuk. However, the court does not believe that this fact

[14 FSM Intrm. 564]

alone constitutes extraordinary circumstances that would allow the court to refrain from suspending Respondent.

III. Decision

Pursuant to Disciplinary Rule 10 Respondent is hereby suspended from the practice of law. Respondent is advised to take all actions required of him by the Disciplinary Rules and in particular shall perform the actions required by Disciplinary Rule 12.

Pursuant to Disciplinary Rules 10(c) and 4, Camillo Noket is appointed disciplinary counsel in DPA 001-2005 and shall investigate the complaint against Respondent and otherwise comply with the Disciplinary Rules and Procedures.

Respondent’s terms of suspension under Disciplinary Rule 10 shall run until the court enters a final order of discipline in or dismisses DPA 001-2005.

If Respondent believes a current client would be prejudiced by this suspension, he may apply to the court for permission to either complete his representation or continue his representation until his client can find replacement counsel.

Addendum

This order was originally signed on April 24, 2006. However, due to a clerical oversight, the order was never entered. Accordingly this order is entered this 5th day of March, 2007, nunc pro tunc to April 24, 2006.

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[14 FSM Intrm. 565

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^[1] "[T]he Chief Justice shall enter an order requiring the attorney to show cause why he should not be immediately restrained from engaging in the practice of law . . . ." FSM Dis. R. 10(a).