2 MILR 27

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S. Ct. CIVIL NO. 94-09
(High Ct. Civil No. 1994-048)

In the Matter of Public Laws Nos. 1993-56 and 1994-87

IROIJ ANJUA LOEAK, YOSHIMI NASHON AND NEAMON BEN,
Petitioners.

OPINION ON QUESTION REMOVED FROM THE HIGH COURT PURSUANT TO CONSTITUTION, ARTICLE VI, SECTION 2(3)

FEBRUARY 3, 1995

ASHFORD, C.J.

SUMMARY:

In 1993 the Nitijela enacted amendments to the Marshall Islands Nuclear Claims Tribunal Act. One amendment prohibited private legal counsel from appearing before the Tribunal on behalf of persons whose claims were filed subsequent to the amendment. Those claimants were required to use the free services of the Public Advocate. In 1994 the Nitijela enacted amendments to the Probate Code. Those amendments prohibited administrators of estates, in which more than 50% of the value consisted of a Nuclear Claims Tribunal award, from retaining private legal counsel. They were obliged to use the free legal services of the Marshall Islands Public Defender or Legal Aid Office, if desired. Three citizens challenged the constitutionality of these amendments on grounds the amendments deprived them of due process, equal protection of the law and privacy. The High Court referred the question to the Supreme Court for determination. The Supreme Court ruled that the amendments to the Probate Code were valid. The Supreme Court also ruled that the amendment to the NCT Act prohibiting some claimants from retaining private legal counsel deprived those claimants of due process, was unconstitutional and was void.

DIGEST:

1. CONSTITUTIONAL LAW - Construction of Statutes: The Constitution is the supreme law of the Republic and any statute that is inconsistent with it is void to the extent of the inconsistency.

2. CONSTITUTIONAL LAW - Same: The presumption of constitutionality is a strong one, and a court must make every effort to find an interpretation of a statute that is consistent with the Constitution.

3. CONSTITUTIONAL LAW - Same: The Court is entitled to look to, without being bound by, the decisions of United States courts for guidance in determining the effect of the Constitution on challenged statutes when the challenges are based on provisions in the Constitution that are similar to provisions in the United States Constitution.

4. CONSTITUTIONAL LAW - Privacy: Both ordinary and truncated estate administration procedures are in a public forum and open to inquiry by anyone interested. The inclusion of NCT awards in an estate so administered does not violate any right of privacy assured by Article II, Section 13 of the Constitution.

5. CONSTITUTIONAL LAW - Due Process - In General: The concept of due process protects rights that cannot be denied without violating fundamental principles of liberty and justice.

6. CONSTITUTIONAL LAW - Same - Right to Counsel: It has long been recognized that in criminal proceedings, due process includes the right to the assistance of counsel of one's choice.

7. CONSTITUTIONAL LAW - Same - Same: Recent cases have recognized that the right to counsel is also preserved by the due process clause in civil cases.

8. CONSTITUTIONAL LAW - Same - Same: It is also established that the right to counsel preserved by the due process clause extends to administrative proceedings as well as to courtroom proceedings.

9. CONSTITUTIONAL LAW - Same - Same: Even in a criminal case the right to have a particular attorney is not absolute, and in civil cases a party's right to choose its own counsel can be overridden.

10. CONSTITUTIONAL LAW - Same - Same: The right to counsel in civil matters ordinarily includes the right to retain counsel of one's choice.

11. CONSTITUTIONAL LAW - Constitutionality of Statutes - P.L. 1994-87: P.L. 1994-87 does not prevent any person, other than the administrator of an estate, from employing counsel and asserting whatever rights he claims with respect to the assets and obligations of the estate. The statute prohibits only the administrator, in his fiduciary capacity, from employing private counsel. If and to the extent that the administrator, in his personal capacity, is interested in the estate, the statute is inapplicable to that interest, which also may be protected through the use of private counsel.

12. CONSTITUTIONAL LAW - Same - Same: The limited interference in the administration of certain estates, with the right of a party to a civil action to be represented by counsel of his choice, effected by P.L. 1994-87, does not offend the guarantee of due process in Article II, Section 4(1) of the Constitution.

13. CONSTITUTIONAL LAW - Equal Protection: Equal protection of the laws is expressly guaranteed by the Constitution, Article II, Section 2(l), and is also inherent in the due process guarantee of Article II, Section 4(1).

14. CONSTITUTIONAL LAW - Same - Tests for Measuring: The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate government interest. When social or economic legislation is at issue, wide latitude is allowed.

15. CONSTITUTIONAL LAW - Same - Same: When a statute classifies by race, alienage or national origin, or impinges on personal rights protected by the Constitution, it will be subjected to strict scrutiny and will be sustained only if suitably tailored to serve a compelling government interest.

16. CONSTITUTIONAL LAW - Same - Constitutionality of P.L. 1994-87: P.L. 1994-87 is social legislation with a classification based on value. That classification is rationally related to a legitimate state interest, preserving cash from awards made by the NCT. The Equal Protection challenge to the statute, therefore, must fail.

17. CONFLICTS OF INTEREST - Attorneys - Multiple Clients: No lawyer can represent parties whose interests are in direct conflict.

18. CONFLICTS OF INTEREST - Same - Same: A lawyer cannot, without violating the standards of conduct pertaining to conflicts of interest, represent multiple clients who assert claims in an aggregate amount exceeding the amount of the fund from which those claims are to be satisfied. Reason dictates the same result if the possibility exists that the fund might prove to be inadequate or it is probable that lengthy delay in obtaining payment from the fund will be encountered.

19. CONSTITUTIONAL LAW - Constitutionality of Statutes - P.L. 1993-56: P.L. 1993-56, insofar as it prohibits claimants from retaining private legal counsel in connection with claims brought under the NCT Act and limits them to utilization of the services of the Public Advocate, deprives claimants of timely, effective and conflict-free representation. It is, therefore, in violation of the due process guarantee of Article II, Section 4(1) of the Constitution and is void.

BACKGROUND

Nuclear Claims Awards

The Agreement Between the Government of the United States and the Government of the Marshall Islands for the Implementation of Section 177 of the Compact of Free Association1, for convenience usually called the "Section 177 Agreement" provided, among other things, (1) for the United States to provide $150 million ("the Fund") to the Marshall Islands, (2) for the earnings ("Annual Proceeds") of the Fund to be disbursed as specified in the Agreement and (3) for the Marshall Islands to establish a Claims Tribunal. The Claims Tribunal was given jurisdiction to determine all claims related in any way to the United States' nuclear testing program conducted in the 1946-1958 period in the Marshall Islands. It was allotted $45.75 million of the anticipated $270 million aggregate Annual Proceeds, during the 15 years of the Compact, to pay those claims. The Section 177 Agreement provide2 that payments should be made from the Fund on an annual basis, if necessary, to supplement insufficient Annual Proceeds for that year. Distributions of both the Fund and Annual Proceeds were exempted from taxation by the signatory governments.3

As required by the Section 177 Agreement, the Republic of the Marshall Islands established the Nuclear Claims Tribunal (the "NCT"). Marshall Islands Nuclear Claims Tribunal Act 1987, 42 MIRC Ch. 1 (the "NCT Act"). By the end of 1993, the NCT had awarded $22.8 million to or on behalf of 572 individuals for medical conditions resulting from the testing program, and had paid out about 40% of each award.4

Statutes

In 1993, the Nitijela enacted Bill No. 27, entitled: "A Bill for An Act to protect the financial interests of persons affected by the Nuclear Testing Program who receive compensation under the 177 Provision of the Compact of Free Association," as P.L. 1993-50. This statute declared it to be the policy of the Republic that no compensation money should be paid or received for legal or other services or obligations (exempting, however, spending decisions of individual recipients of compensation); that assignments of funds to be received by distribution authorities (local government councils) would be considered consistent with the Section 177 Agreement only if they furthered the purposes of that Agreement; and that assignments for payment of legal fees would not be considered to be consistent with the Agreement.5 The statute made it a felony for a distribution authority to deduct from compensation paid to an individual (except for taxes), to assign the right to receive funds for payment of legal fees and to pay, receive or assign compensation money in contravention of the statute.6

Also in 1993, the Nitijela enacted the Marshall Islands Nuclear Claims Tribunal (Amendment No. 1) Act of 1993, P.L. 1993-56. This statute recited that many claimants before the NCT failed to avail themselves of free legal services available to them, often in the mistaken belief that employing private legal counsel was necessary to prevail on their claims. It asserted that due to the high cost of private counsel, many claimants were not enjoying the full benefit they would have had by using the free services of the Public Advocate (an officer of the NCT). It contained recitals, also, that (1) probate matters related to the claims were routinely brought using the services of private legal counsel, resulting in diminution of the benefits received by claimants' beneficiaries; and (2) the Nitijela intended by the Act to protect the rights of claimants and their beneficiaries (a) by prohibiting the involvement of private legal counsel with claims before the NCT and (b) by requiring that all probate matters of claimants be brought before and administered by the NCT.7

The operative provisions of P.L. 1993-56 amended the NCT Act, with respect to claims filed subsequent to the effective date of the Act, by (1) giving the NCT the duty and responsibility to decide, administer and disburse with respect to all probate matters in any way related to the nuclear testing program, excluding, however, (a) assets of the decedent unrelated to compensation awarded the decedent by the NCT and (b) disputes over ownership of real property, both of which should continue to be administered and determined by the High Court; (2) requiring the Public Advocate to advise and assist all claimants in pursuing their claims before the NCT; (3) prohibiting claimants from retaining private legal counsel in connection with claims brought under the NCT Act and (4) repealing the authority of the NCT to award reasonable attorneys fees to parties.8 P.L. 1993-56 also expressly repealed9 provisions of the NCT Act that permitted claimants to retain private legal counsel to pursue claims brought thereunder and limited fees for such services to those permitted by the Lawyers Fees (Regulation and Control) Act 1986.10 The Nitijela Committee Report11 on the Bill, and the amendments to the Bill suggested therein, do not elaborate on the reasons for and purposes of the legislation.

In 1994, the Nitijela enacted the Marshall Islands Nuclear Claims Tribunal (Amendment) Act of 1994, P.L. 1994-87. This statute (1) repealed the duty and authority granted the NCT the previous year to handle probate matters related to nuclear claims compensation12 and (2) amended the Probate Code13 to provide (a) that an estate in which more than 50% of the value consisted of an award by the NCT should be administered as a limited value estate, and (b) that the administrator is prohibited from retaining private legal counsel and, instead, is required to use the free legal services of the Marshall Islands Public Defender or Legal Aid Office, if desired.14 Neither the statute nor the Committee Report on the Bill15 contains a statement of reasons for or purposes underlying this amendment of the Probate Code.

The current controversy

In June, 1994, three citizens of the Republic filed a declaratory judgment action in the High Court, seeking to have P.L. 1993-56 and P.L. 1994-87 declared to be unconstitutional on various grounds. These petitioners alleged that they wished to retain private legal counsel to probate the estates of a parent of each of two of them, in each of which more than 50% of the value consisted of an award or possible award by the NCT, and to present claims on behalf of two of them to the NCT. In July, 1994, on petitioners' motion and prior to any evidentiary hearing, the High Court, pursuant to the provisions of Article VI, Section 2(3) of the Constitution, removed to this Court for determination the question of the effect of the Constitution on the two challenged statutes. This Court established a briefing schedule in which all of the Attorney General, the Legislative Counsel, the Chief Legal Aid Officer, the Public Advocate, the Defender of the Fund (also an officer of the NCT), and the Public Defender were invited to file briefs as amicus curiae. The Attorney General, the Legislative Counsel and the Defender of the Fund declined to do so. The Court thanks the Chief Legal Aid Officer, the Public Advocate and the Public Defender for their contributions to determination of the question referred.

Standard of review

The High Court having referred the constitutional questions raised by the petition to this Court for initial determination, this Court is not reviewing any determination by the High Court and approaches the matter de novo.

DISCUSSION

[1,2] Every analysis of constitutionality must start with consideration of some general principles universally accepted as binding upon courts. The first is that the Constitution is the supreme law of the Republic and any statute that is inconsistent with it is void to the extent of the inconsistency.16 The second is that the presumption of constitutionality is a strong one, Joash v. Cabinet of Marshall Islands, 8 TTR 498 (1985), and a court must make every effort to find an interpretation of a statute that is consistent with the Constitution. Van Slooten v. Larsen, 410 Mich. 21, 299 N.W.2d 704 (1980), app. dis. 455 U.S. 901, 102 S. Ct. 1242, 71 L.Ed.2d 440 (1982); Minnesota Higher Ed. Facilities Authority v. Hawk, 305 Minn. 97, 232 N.W.2d 106 (1975); Tanttila v. Tanttila, 152 Cob. 445, 382 P.2d 798 (1963).

[3] Petitioners have argued that both statutes are unconstitutional because they (1) deprive them of their right, implicit in the due process clause of Article 11, Section 4(1), to be represented by counsel of their choosing; (2) infringe upon their rights to personal autonomy and privacy guaranteed by Article II, Section 13; and (3) violate their right to equal protection under the law assured by Article II, Section 12(1). The due process provision in Article II, Section 4(1) is identical to the due process clauses in the Fifth and Fourteenth Amendments to the Constitution of the United States. The equal protection guarantee in Article II, Section 12(1) is an expanded, positive statement of the equal protection provision in the same Fourteenth Amendment. While the personal autonomy and privacy provisions of Article II, Section 13 have no counterpart in the United States Constitution, both the due process clauses and other provisions of that constitution, which also appear in Article II of the Marshall Islands Constitution, have been construed to implicitly guarantee the right of privacy. Pursuant to Article I, Section 3(1),17 therefore, this Court is entitled to look to, without being bound by, the decisions of United States courts for guidance in determining the effect of the Constitution on the challenged statutes.

A. PROHIBITED USE OF PRIVATE COUNSEL IN PROBATING ESTATES CONSISTING IN MAJORITY PART OF A RIGHT TO PROCEEDS OF AN NCT AWARD.

For convenience, the amendment to the Probate Code effected by P.L. 1994-87 will hereinafter be referred to as the "probate amendment." In effect, that amendment qualified an estate having as its principal asset an NCT award, irrespective of its total value, to be administered as an estate of limited value18 or a small estate19 under the Marshall Islands Probate Code. Both are summary procedures, designed to take less time and be less expensive than required by the procedures used in ordinary probate and administration of estates. With estates of limited value, a member of the decedent's immediate family, eldest maternal uncle, head of his lineage or creditor is able to petition the court to transfer the personal property of decedent to petitioner. The petitioner must identify the relatives of the decedent, the total value of the property, the persons entitled to the property (by will or otherwise) and must undertake to pay the debts of decedent with available assets and distribute the balance to the persons entitled. Persons delivering assets to the petitioner are not held to account to any other person. If petitioner's right to any asset is denied, the court determines entitlement. If it appears that debts will exceed assets, petitioner thereafter acts only as directed by the court. Petitioner is accountable for property transferred to him, but no provision for an accounting is made and actions against him must be commenced within two years of the order to transfer assets. The procedure with respect to small estates20 is similar, but the size of the estate must be less than $1,000, the process is commenced by affidavit and the time limitation on suit against the transferee is one year. In neither of these expedited procedures is there any filing of an inventory, published notice to creditors, formal accounting or order of distribution.

1. Privacy

[4] Both ordinary and truncated estate administration procedures are in a public forum and open to inquiry by anyone interested. In these procedures, the provisions of decedent's will, if any, are disclosed, his heirs and legatees are identified, the scope of his estate is disclosed and his creditors are identified. It does not appear, therefore, that the inclusion of NCT awards in an estate so administered violates any right of privacy assured by Article II, Section 13.

[5-8] 2.	 Due process: right to private counsel

The concept of due process protects rights that cannot be denied without violating fundamental principles of liberty and justice. It has long been recognized that in criminal proceedings, the right to the assistance of counsel of one's choice is such a right. Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932). Many recent cases have recognized that the right to counsel is also preserved by the due process clause in civil cases. See, e.g., Potashnick v. Port City Const. Co., 609 F.2d 1101 (5th Cir. 1980), reh. den. 613 F.2d 314, cert. den. 449 U.S. 820, 101 S. Ct. 78, 66 L.Ed.2d 22 (1980); Gray v. New England Tel. & Tel. Co., 792 F.2d 251 (1st Cir. 1986). It is also established that this right extends to administrative proceedings as well as to courtroom proceedings. Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L.Ed.2d 287 (1970). While it is conceded that government is not required to furnish counsel to civil litigants, whose personal liberty is not at stake, recently one court has expressed the view that the right to counsel in civil proceedings means, in most instances, the right to counsel of one's choice. McCuin v. Texas Power & Light Co., 714 F.2d 1255 (5th Cir. 1983); Texas Catastrophe Property Ins. Assn v. Morales, 975 F.2d 1178 (5th Cir. 1992), reh. den. 980 F.2d 1442, cent. den. 123 L.Ed.2d 446 (1993).

[9-10] That court has recognized, however, that even in a criminal case the right to have a particular attorney is not absolute, United States v. Dinitz, 538 F.2d 1214 (5th Cir. 1976), cert. den. 429 U.S. 1104, 97 S. Ct. 1133, 51 L.Ed.2d 556 (1977), and that in civil cases a party's right to choose its own counsel can be overridden by "compelling reasons." Examples of "compelling reasons" are given in McCuin, supra. They include consideration of effective judicial administration and economy of litigation costs. This Court is inclined to agree that the right to counsel in civil matters ordinarily includes the right to retain counsel of one's choice. This Court is not yet prepared, however, to adopt the "compelling reasons" standard announced by the United States Fifth Circuit Court of Appeals for declining to preserve that right. There is a different cultural background in the Marshall Islands than in the U.S., there are relatively few lawyers and there is a lesser degree of sophistication in legal matters.

[11] The probate amendment requires the administrator of an estate of limited value or small estate (referred to in the Probate Code as the "complainant" and "transferee" and in the probate amendment as the "claimant" or "affiant") to use the services of the Offices of the Marshall Islands Legal Aid or Public Defender,21 if desired, and prohibits the administrator from using the services of private legal counsel.22 The administrator's duties are largely ministerial and he acts as a fiduciary. His interests, to be protected by the assigned counsel, are certainly not of the magnitude as is the personal liberty of a defendant in a criminal case, or even as are the rights to property or compensation of a litigant in the ordinary civil case. There are no inheritance or estate taxes to be paid, so the administrator is likely to encounter controversy only with respect to collecting assets of the estate, paying debts and making distribution of the balance of the estate to those entitled. The Court finds nothing in the probate amendment that prevents any person, other than the administrator, from employing counsel and asserting whatever rights he claims with respect to the assets and obligations of the estate. The Court construes the probate amendment to prohibit only the administrator, in his fiduciary capacity, from employing private counsel. If and to the extent that the administrator, in his personal capacity, is interested in the estate, the Court construes the statute as inapplicable to that interest, which also may be protected through the use of private counsel.

[12] The Court concludes that this limited interference, in the administration of certain estates, with the right of a party to a civil action to be represented by counsel of his choice does not offend the guarantee of due process in Article II, Section 4(1).

3. Equal Protection

Article II, Section 12(1) of the Constitution states:

"All persons are equal under the law and are entitled to the equal protection of the laws."

Article II, Section 12(3), however, states:

"Nothing in this Section shall be deemed to preclude non-arbitrary preferences for citizens pursuant to law."

[13] Equal protection is also inherent in the notion of "due process," to which every person is entitled under Article II, Section 4(1) of the Constitution.

What is meant by "equal protection of the laws"? The majority in a relatively recent United States Supreme Court case said it meant that "all persons similarly situated should be treated alike." Cleburne v. Cleburne Living Center, 473 U.S. 472, 105 S.Ct. 3249, 87 L.Ed.2d 313, 320 (1985). Professor Tribe, in American Constitutional Law, 2d ed., 1988, stated that equal protection includes rights to equal treatment and to be treated as an equal (expressly guaranteed in Article II, Section 12(1)) and that these are not the same thing. Equal treatment, he wrote, does not operate with respect to all interests because that would preclude government from discriminating in the public interest (which power was reserved to the government in Article II, Section 12(3)), while treatment as an equal protects all interests of all persons. Id. at page 1437.

[14,15] In Cleburne, supra, the United States Supreme Court recited the tests for determining whether challenged legislation denies equal protection:

The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest (Citations omitted). When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude (citations omitted), and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.

The general rule gives way, however, when a statute classifies by race, alienage, or national origin. These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy - a view that those in the burdened class are not as worthy or deserving as others. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest (citations omitted). Similar oversight by the courts is due when state laws impinge on personal rights protected by the Constitution (citations omitted). 87 L.Ed.2d 313, 320.

The court went on to observe that a heightened standard of review would be used to test legislative classifications based on gender or legitimacy, but not to classifications based on age. Id. 320, 321.

[16] The probate amendment does not employ a basis for classification that requires strict or heightened scrutiny. It is social legislation with a classification based on value. The question, then, is whether that classification is rationally related to a legitimate state interest. Here, the policy expressed in P.L. 1993-50, the forerunner of the probate amendment, and in the probate amendment is to preserve awards made by the NCT through preventing them from being used for payment of legal fees. In an economy which, outside of the urban centers, is largely a subsistence economy, the government can certainly have a valid interest in preserving cash for the persons entitled to a decedent's estate. In that economy, the principal sources of substantial cash have been awards made for war claims and nuclear claims. The classification, based on value, is rationally related to that interest. The equal protection challenge to the probate amendment, therefore, must fail.

B. PROHIBITED USE OF PRIVATE COUNSEL IN CONNECTION WITH CLAIMS BROUGHT UNDER THE NCT ACT.

For convenience, the amendment to the NCT Act effected by P.L. 1993-56 will hereafter be referred to as the "NCT amendment." As amended by the NCT amendment, the relevant portions of the NCT Act now read:

"§ 17. Office of Public Advocate.

(1) There shall be appointed one Public Advocate and such Associate Public Advocates as required, who shall:

(a) advise and assist all claimants in the filing, preparation and presentation of claims under this Act;

….

(5) A claimant or class of claimants shall be prohibited from retaining private legal counsel in connection with claims brought under this Act."

The NCT amendment defined private legal counsel as a "private attorney, trial assistant or other individual who offers legal services for a fee."23

The NCT Act does not require, and has never required, the Public Advocate and the Associate Public Advocates to be lawyers or trial assistants. The Court will take judicial notice24 of the facts that neither the Public Advocate nor those who have been, from time to time, Associate Public Advocates are or have been lawyers or trial assistants, that the Public Advocate is well experienced in his job and that he and his staff have had some advocacy training.25

1. Due Process

As noted above, due process in civil cases, including administrative proceedings, requires that a litigant have the right to be assisted by counsel, ordinarily of his own choice. In the case at bar, the government has chosen to assign counsel to the litigant, free of charge, and to prohibit him from employing counsel of his choice, even though he is willing to pay the fees of employed counsel. Counsel assigned by the statute is not a lawyer. Even if he was, however, he would not, in the circumstances pertaining to presentation of claims to the NCT, be able to represent the clients assigned to him in the manner required by standards of conduct governing the performance of lawyers. Those standards are set out in part in the American Bar Association's Model Code of Professional Responsibility26 and its successor, the Model Rules of Professional Conduct. No reason appears to excuse the assigned counsel from the same standards of performance that would be required of private counsel employed by the litigant.

Canon 7 of the Model Code of Professional Responsibility ("Model Code") admonishes a lawyer to represent a client zealously within the bounds of the law. Disciplinary Rule 7-101 under that Canon requires a lawyer to seek the lawful objectives of his client though reasonably available means permitted by law and precludes him from prejudicing or damaging his client during the course of the professional relationship. The newer Model Rules of Professional Conduct ("Model Rules") are somewhat more specific in these areas. Model Rule 1.3 requires a lawyer to act with reasonable diligence and promptness in representing a client. Model Rule 1.7 directs that a lawyer shall not represent a client if that representation would be directly adverse to another client or if his responsibilities to that other client would materially limit his representation of the would-be client, unless the lawyer reasonably believes the multiple representation would not adversely affect either client and both clients consent after consultation.

Prohibitions against representing clients with conflicts of interest, similar to those in Rule 1.7, are found in the current draft of Chapter 8 of the American Law Institute's Restatement of the Law Governing Lawyers.27 Section 201 of that draft states:

Unless all affected clients consent to the representation under the limitations and conditions provided in § 202, a lawyer may not represent a client if the representation would constitute a conflict of interest. A conflict of interest exists if there is a substantial risk that the lawyer's representation of the client would be materially and adversely affected by the lawyer's own interests or by the lawyer's duties to another current client, to a former client, or to a third person.

Section 202(1) allows a lawyer to represent clients, notwithstanding a conflict of interest, if all affected clients, each having adequate information about the risks and advantages to themselves of that representation, expressly consent. Even with such consent, however, § 202(2) (c) precludes the lawyer from undertaking the multiple representation if, because of special circumstances, he will likely not be able to provide adequate representation to one or more of the clients.

Need the Public Advocate be concerned with violating these standards and limitations in representing claimants before the NCT? Statements in the annual reports of the Tribunal and in the amicus curiae brief filed by the Public Advocate, referred to below, make it apparent that he is seriously concerned with them.

a. Diligence.

Broadly stated, claims filed with the NCT fall into two categories: (1) those for personal injury or death arising from cancer-causing radiation that emanated from the nuclear testing program of the United States, and (2) those for property damage from the same program. The Public Advocate stated in his brief that, as of the end of October, 1994:

Over 4,600 individual claims have been filed to date with the Tribunal and new claims continue to be filed on a regular basis. Many of these are multiple in nature, involving, for example, claims for one or more personal injury, for one or more personal injury suffered by a deceased relative, and for property damage in one or more atoll. Effectively, then, the Public Advocate is required to represent well over 10,000 separate claims before the Tribunal.28

Not all of these claimants need be represented by the Public Advocate because the NCT amendment precludes only claimants filing after October 8, 199329 from employing private legal counsel. However, the claimants covered by the NCT amendment will add substantially to the case load the Public Advocate was in the process of trimming when the amendment was passed. Believing that limitations of resources and evidence required him to focus on claims with the greatest likelihood of success, he had initiated a system for evaluation of the claims. He reported that claims for which sufficient evidence and reasonable linkage to the testing program could be found would be pursued, and other claimants would be advised that his office would be unable to pursue their claims.30 The Public Advocate now asserts, considering the task assigned to him by the NCT amendment:

Given the large volume of claims and the limited number of staff, it is impossible for the Office of the Public Advocate to represent all claimants in an adequate and timely manner.31

Theoretically, the Nitijela could meet this objection of the Public Advocate by appropriating enough money to provide staffing that would provide legal services meeting the required standards. It has not done so, however, and what we are concerned with here is whether, by prohibiting claimants before the NCT from employing private attorneys to pursue their claims, those claimants have been deprived of fundamental rights protected by the due process clause,

b. Conflicts of interest: property damage.

The Public Advocate has invited the attention of this Court to the fact that the NCT amendment requires him to represent parties with directly conflicting interests, contrary to the prohibitions of the Model Code, Model Rules and current draft of Chapter 8 of the American Law Institute's Restatement of the Law Governing Lawyers. He has stated that there are thousands of claims for damage to property pending before the Tribunal, including many where conflicting claims to ownership of the property have been made.32 Since no lawyer can represent parties whose interests are in direct conflict,33 at least some of those claimants will, because of the NCT amendment, be without any representation before the NCT, if, indeed, the Public Advocate can continue to represent others of them against former clients.

c. Conflicts of interest: claims to be satisfied from a limited source of funds.

[17] In the early years of its existence, the NCT expressed substantial doubt that the Nuclear Claims Fund would be sufficient to pay the awards it would make.34 Indeed, the Defender of the Fund unequivocally represented to this Court that: "it appears likely that successful claimants will never receive 100% of their total award because of the insufficiency of the Compact funds."35 This gloom was reiterated in the 1992 NCT Report: "Based on current information, Tribunal concludes that Article IV funds are inadequate to satisfy all current and projected compensation awards."36

More recently, the NCT and the Public Advocate have taken a somewhat less pessimistic view. Their cautious re-assessment is based upon the assumption that some part of the Fund will still be intact at the conclusion of the 15-year period of the Compact of Free Association, at which time at least 75% of the Annual Proceeds will be available to pay monetary awards made by the NCT.37

Since it appears clear at this time that the $45.75 million available to the Tribunal for payment of awards during the 15-year period will not be enough to make fall payment, consideration should begin soon on how best to prepare for the future distribution of those funds, as well as for continued adjudication of claims that may arise after the end of the Compact period.38

Presuming that at least a portion of the Nuclear Claims Fund survives the fifteen-year period of the Compact of Free Association, there will continue to be annual proceeds generated from which to pay awards. In theory, then, there will be an infinite amount of funding available. Admittedly, however, it may take decades before annual proceeds can be realized in an amount sufficient to pay all awards in full.39

[18] A lawyer cannot, without violating the standards of conduct pertaining to conflicts of interest, represent multiple clients who assert claims in an aggregate amount exceeding the amount of the fund from which those claims are to be satisfied.40 Reason dictates the same result if the possibility exists that the fund might prove to be inadequate or it is probable that lengthy delay in obtaining payment from the fund will be encountered. In the latter situation, which is the most favorable to claimants that the NCT currently can project, resourceful counsel for the claimants might conceive of arguments for preferring payment of their clients' claims in advance of others. Although all monetary awards made by the Tribunal are to be paid on an annual pro-rata basis,41 there has already been controversy42 over the meaning of that direction. No attorney representing a large variety of claimants could make an argument for preference for any of them over the others of them, and conceding that all should share pro rata, at the same times and rates, would not optimize recovery for any of them.

From the foregoing, it can be seen that what is at stake for NCT claimants is more than merely the cost of attorneys' fees. Whether those claimants can obtain an award, the size of the award, the time within which it can be obtained, the amount of it that will be paid and the timing of payment are all in issue. Many of the injured parties have already died and many of the current claimants are of advanced years who, if they are to be paid at all, must be paid promptly.

[19] The NCT amendment deprives claimants of timely, effective and conflict-free representation. It is, therefore, in violation of the due process guarantee of Article II, Section 4(1) of the Constitution.

2. Privacy and equal protection.

In view of the conclusion reached with respect to petitioners' due process claim, it is unnecessary for the Court to reach their claims based on Article II, Section 13 and Article II, Section 12(1).

CONCLUSION

This case is remanded to the High Court with directions to enter a judgment declaring:

1. That P.L. 1993-56, insofar as it prohibits claimants from retaining private legal counsel in connection with claims brought under the NCT Act and limits them to utilization of the services of the Public Advocate, violates the guarantee of due process of law in Article II, Section 4(1) of the Constitution and is, therefore, unconstitutional and void.

2. That P.L. 1994-87 does not violate any of the guarantees contained in Article II, Sections 4(1), 12(1) and 13 of the Constitution and is, therefore, valid.

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1Free Association Agreement. Signed June 25, 1983, Entered Into Force October 15, 1986. Treaties in Force 1987.

2Section 177 Agreement, Article II, Section 7(a).

3Section 177 Agreement, Article V, Sections 1 and 2.

4NCT Annual Report to the Nitijela, 1993, page 3.

5P.L. 1993-50, § 2.

6P.L. 1993-50, §§ 3-6.

7P.L. 1993-56, § 2.

8P.L. 1993-56, § 3.

9P.L. 1993-56, § 4.

1020 MIRC Ch. 7. This Act authorized the Minister of Justice to promulgate regulations prescribing maximum fees chargeable by lawyers for legal services. The regulations promulgated by the Minister of Justice govern contingent fees only. For tortious and other claims (excluding contract and debt recovery matters) the rates chargeable diminish in six steps from 40% of the first $1,000 recovered to 2½% on amounts recovered in excess of $1 million. For contractual and debt recovery matters the rates chargeable diminish in six steps from 30% of the first $5,000 recovered to 2½% on amounts recovered in excess of $1 million. In other matters, the regulations provide that the attorneys' fees shall be fixed by agreement on either a fixed fee or hourly basis. 20 MIRC Ch. 7, Regulations.

11Standing Committee Report No. 129, 14th Constitutional Regular Session, 1993.

12P.L. 1994-87, § 2. These had been "proven administratively inefficient and otherwise difficult to implement." Standing Committee Report No. 149, 15th Constitutional Regular Session, 1994.

1325 MIRC Ch. 1. The Probate Code is not comprehensive. Part I of the Code deals only with wills. Part II provides for the administration, in a rather summary manner, of estates consisting of personal property of a value not exceeding $20,000, with debts not in excess of that amount, and estates consisting solely of war claims proceeds of less than $1000 arising from death, personal injury or loss of personal property.

14P. L. 1994-87, § 4.

15Standing Committee Report No. 149, 15th Constitutional Regular Session, 1994.

16Constitution, Article I, Sections 1(1) and 2(1).

17"In interpreting and applying this Constitution, a court shall look to the decisions of the courts of other countries having constitutions similar, in the relevant respect, to the Constitution of the Republic of the Marshall Islands, but shall not be bound thereby; and, in following any such decision, a court shall adapt it to the needs of the Republic, taking into account this Constitution as a whole and the circumstances in the Republic from time to time."

1825 MIRC Ch. 1, §§ 11-15.

1925 MIRC Ch. 1, §§ 16-19.

20Originally limited to estates consisting of awards from the United States under the Micronesian Claims Act of 1971, 50 App USCA 2018-2020b, terminated August 3, 1976.

21If they previously had no authority to appear in such matters, by implied amendment through P.L. 1994-87 their authorizing statutes now permit them to do so.

22The term "private legal counsel" is not defined in the probate amendment.

23P.L. 1993-56, Section 3(2).

24Rule 201 of the Evidence Act of 1989, 28 MIRC Ch. 1A, permits judicial notice to be taken at any time, including on appeal, of facts not subject to reasonable dispute, in that they are generally known within the jurisdiction of the court or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

25NCT Report to the Nitijela, 1992, pages 8, 9.

26Adopted by joint order of the High Court and the Supreme Court dated January 17, 1990, as a part of the Rules for Admission to and Practice of Law Before the Courts of the Republic of the Marshall Islands. See Rule V.A.(4).

27Tentative Draft No. 4, April 10, 1991.

28Amicus Curiae Response of the Public Advocate, pages 3, 4.

29The effective date of the NCT amendment.

30NCT Report to the Nitijela, 1992, page 18.

31Amicus Curiae Response of the Public Advocate, page 4.

32Amicus Curiae Response of the Public Advocate, page 3.

33Model Code, Canons 5 and 9; Model Rule 1.7; Woodruff v. Tomlin, 616 F.2d 924 (6th Cir. 1980), cert. den. 449 U.S. 888, 101 S. Ct. 246, 66 L.Ed.2d 114 (1980).

34NCT Report to the Nitijela, 1991, pages 17, 18.

35Appelllee's Memorandum on Why Appeal Should Be Denied, page 4, filed February 18, 1992 in Rongelap Atoll Local Government Council, et al. v. Marshall Islands Nuclear claims Tribunal, 1 MILR (Rev.) 255 (May 7, 1992). Emphasis in the original.

36NCT Report to the Nitijela, 1992, page ES-3. The reference is to Article IV of the Section 177 Agreement, providing the claims adjudication process for the $45.75 million made available to the NCT.

37Section 177 Agreement, Article II, Section 7(c).

38NCT Report to the Nitijela, 1993, page 15.

39Amicus Curiae Response of the Public Advocate, page 2.

40See, for example, Rhode Island Bar Association Ethics Advisory Panel Opinion #93-15, issued March 31, 1993, concerning multiple claims against an auto insurance policy, and Connecticut Bar Association Informal Opinion 89-18, concerning claims against a decedent's estate, obtainable from the American Bar Association's Center For Professional Responsibility.

41Section 177 Agreement, Article II, Section 7(b).

42Rongelap Atoll Local Government Council, et al. v. Marshall Islands Nuclear Claims Tribunal, 1 MILR (Rev.) 255 (May 7, 1992).