FSM Development Bank v Materne [2020] FMSC 37; 23 FSM R. 94 (App. 2020) (2 December 2020)

FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. P10-2019
(Civil Action Nos. 2007-008 & 2010-006)

FEDERATED STATES OF MICRONESIA
DEVELOPMENT BANK,
Petitioner,

vs.

HON. LOURDES MATERNE and FSM SUPREME
COURT TRIAL DIVISION, Pohnpei Venue,
Respondents,

MARIANNE B. SETIK, THE ESTATE OF MANNY
SETIK, ATANASIO SETIK, VICKY SETIK IRONS,
IRENE SETIK WALTER, MARLEEN SETIK,
JUNIOR SETIK, ELEANOR SETIK SOS, JOANITA
SETIK PANGELINAN, MERIAM SETIK,
CHRISTOPHER JAMES SETIK, JERMINA SETIK,
and AREEN SETIK,
Respondents/Real Parties
in Interest.
_________________________________________

ORDER PUBLICLY ADMONISHING COUNSEL

Decided: December 2, 2020

BEFORE:

Hon. Larry Wentworth, Associate Justice, FSM Supreme Court
Hon. Cyprian J. Manmaw, Specially Assigned Justice, FSM Supreme Court*
Hon. Mayceleen J.D. Anson, Specially Assigned Justice, FSM Supreme Court**

*Chief Justice, Yap State Court, Colonia, Yap
**Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei

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HEADNOTES

Attorney Discipline and Sanctions
Counsel will be publicly admonished for submitting in support of a rehearing petition what purported to be an adopted 2015 Congress resolution when it was only a proposed version of a resolution and the actual adopted resolution was quite different, and for never serving the rehearing petition on opposing counsel, although a certificate of service attesting to service was attached to the filed rehearing petition. FSM Dev. Bank v. Materne, 23 FSM R. 94, 95 (App. 2020).

Attorney Discipline and Sanctions
The failure to serve a rehearing petition on opposing counsel falls well below the conduct that is expected from counsel that appear before the court because a false statement (such as the certificate of service attesting to service) to a tribunal does not display the candor that is required of counsel and is a lapse that cannot be tolerated. FSM Dev. Bank v. Materne, 23 FSM R. 94, 95-96 (App. 2020).

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COURT’S OPINION

PER CURIAM:

We feel that two occurrences during the course of this appellate division case are matters of grave concern:

First, the respondents’ counsel, Yoslyn G. Sigrah, submitted in support of the respondents’ petition for rehearing, what purported to be an adopted 2015 Congress resolution that asked the FSM Development Bank for a temporary moratorium on mortgage foreclosures when, in fact, this was only a proposed version of a resolution and the actual adopted resolution, FSM Cong. Res. 19-129, 19th Cong., 2d Reg. Sess. (2015), asked "the President to look into the FSM Development Bank to address the concerns of our citizens, and report back to Congress before the next Special Session in November 2015."

Second, respondent’s counsel never served the respondents’ petition for rehearing on the petitioners’ counsel, although a certificate of service attesting to service was attached to the filed rehearing petition.

The respondents’ counsel may have some excuse for misleading the court with an unadopted Congress resolution, but, since respondents’ counsel is resident on Pohnpei, it should have been a simple matter for her to obtain an accurate copy from the Congress office.

The failure to serve the rehearing petition on opposing counsel, however, falls well below the conduct that we expect from counsel that appear before us. A false statement (such as the certificate of service) to a tribunal does not display the candor that is required of counsel. See FSM MRPC R. 3.3. It is a lapse that cannot be tolerated.

NOW THEREFORE IT IS ORDERED that respondent’s counsel, Yoslyn G. Sigrah, is hereby publicly admonished.

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