KOSRAE STATE COURT TRIAL DIVISION
Cite as In re Mongkeya,12 FSM Intrm. 536 (Kos. S. Ct. Tr. 2004)
IN THE MATTER OF:
MATHIAS MONGKEYA,
Respondent.
DISCIPLINARY PROCEEDING NO. 1-04
ORDER FINDING VIOLATION; ORDER IMPOSING DISCIPLINE
Yosiwo P. George
Chief Justice
Decided: June 18, 2004
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Any person admitted to practice law in the State of Kosrae may, after notice and hearing, be disciplined for violation of the Model Rules and an order may be entered pursuant to the Kosrae State Court's authority to discipline or disbar admitted trial counselors for cause. In re Mongkeya, 12 FSM Intrm. 536, 538 (Kos. S. Ct. Tr. 2004).
When a respondent legal counsel fails to timely respond to an order and notice of disciplinary proceeding and the factual allegations made therein and also fails to request, within the prescribed time, an extension of time to respond either verbally or in writing, the factual allegations made in the order and notice shall be deemed admitted by the respondent for the purpose of the disciplinary proceeding. In re Mongkeya, 12 FSM Intrm. 536, 538, 539 (Kos. S. Ct. Tr. 2004).
The disciplinary system for attorneys and trial counselors is structured not only to protect the public and maintain integrity of the judicial system, but also to inspire confidence in the public that the legal profession is being regulated. Consequently, it is imperative that that disciplinary proceedings be considered and initiated, as appropriate, where there has been allegations of misconduct by legal counsel. In re Mongkeya, 12 FSM Intrm. 536, 539 (Kos. S. Ct. Tr. 2004).
It is implicit in the legal counsel's role as an officer of the court that he owes a duty of candor and honesty to the court. Thus a legal counsel's first duty is to the court and to the proper administration of justice. A legal counsel's duty of candor and honesty to the court applies even when the counsel is acting as a party and not as legal counsel. In re Mongkeya, 12 FSM Intrm. 536, 539 (Kos. S. Ct. Tr. 2004).
No breach of professional ethics or of the law, is more harmful to the administration of justice or more hurtful to the public appraisal of the legal profession than the knowledgeable use by a legal counsel of false testimony and evidence in the judicial process. For this violation of ethics, disbarment is the presumptive penalty. It is appropriate to disbar legal counsel who have submitted documents
known to be false with the intent to mislead the court. In re Mongkeya, 12 FSM Intrm. 536, 539 (Kos. S. Ct. Tr. 2004).
Model Rule 3.3 requires legal counsel to take remedial measures when he discovers that false evidence was offered. The false evidence must be disclosed to the court and remedial action must be taken immediately. In re Mongkeya, 12 FSM Intrm. 536, 539 (Kos. S. Ct. Tr. 2004).
Fair competition in the adversary system is secured by prohibition against alteration, destruction and concealment of evidence. Rule 3.4 ensures that litigation is conducted fairly. It prohibits a lawyer from altering a document that has potential evidentiary value. Suspension from the practice of law is appropriate discipline for misrepresentation by counsel. In re Mongkeya, 12 FSM Intrm. 536, 540 (Kos. S. Ct. Tr. 2004).
A legal counsel's falsification of documents is prohibited under Model Rule 8.4(c). In re Mongkeya, 12 FSM Intrm. 536, 540 (Kos. S. Ct. Tr. 2004).
Model Rule 8.4(d) prohibits legal counsel from engaging in conduct that is prejudicial to the administration of justice. The Rule applies to both personal and professional conduct of legal counsel, encompasses conduct prohibited by other ethics rules, as well as conduct not specifically addressed by other rules. It includes conduct that has an adverse effect upon the administration of justice. In re Mongkeya, 12 FSM Intrm. 536, 540 (Kos. S. Ct. Tr. 2004).
In Kosrae, many persons are not sophisticated in knowledge of the judicial system. Consequently they place complete trust and faith in their legal counsel to properly present their claim and appear before the court. Improper conduct by one legal counsel reflects not only upon himself, but also upon the entire legal profession as a whole. The falsification of evidence and submission of false evidence prejudices the fairness of our legal system and leads to increased mistrust and skepticism by the public in the legal profession and the legal process. In re Mongkeya, 12 FSM Intrm. 536, 540 (Kos. S. Ct. Tr. 2004).
A trial counselor admitted to practice in the State of Kosrae is subject to the Model Rules of Professional Conduct, and violates those rules when he alters and presents those altered checks as evidence in a case in which he is a party. He will be suspended from the practice of law and must notify in writing all clients he represents in any pending matters and any opposing counsel in any pending matters that he has been disqualified by court order to act as legal counsel and the Chief Clerk shall unseal his file and remove his name from the listing of persons admitted to practice law in the State of Kosrae. In re Mongkeya, 12 FSM Intrm. 536, 540-41 (Kos. S. Ct. Tr. 2004).
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YOSIWO P. GEORGE, Chief Justice:
This Court entered an Order to Show Cause and Notice of Disciplinary Proceeding on April 15,
2004. The Order and Notice were served upon the Respondent on April 15, 2004. Through the Order and Notice, the Respondent was informed that he was alleged to have violated the Model Rules of Professional Conduct with his conduct in Mathias Mongkeya v. Vernon Youngstrom, Small Claim No. 69-03.
Respondent, a trial counselor admitted to practice law in the State of Kosrae, is required to comply with the Model Rules of Professional Conduct, pursuant to GCO 2001-5, Rule Four. Any person admitted to practice law in the State of Kosrae, may be disciplined for violation of the Model Rules, after notice and hearing. This Order and Finding is entered pursuant to this Court's authority to discipline or disbar admitted trial counselors for cause, pursuant to Kosrae State Code, Section 6.101(1)(f).
Respondent was ordered to file a written response to each of the allegations made in the Order and Notice. Respondent was ordered to file his written response no later than 21 days after service of the Order and Notice. Respondent was informed through the Order and Notice, that if he fails to file his written response within the prescribed time, the factual allegations shall be deemed admitted, for the purpose of imposing discipline in this matter. Respondent failed to file any response to the Order and Notice. Respondent failed to file a request for an extension of time to file his response. Respondent failed to request, verbally, an extension of time to file his response. To date, no response has been filed by the Respondent. Accordingly, the factual allegations made in the Order and Notice are deemed admitted in this proceeding for the purpose of imposing discipline.
Respondent is deemed to have admitted his violations of the Model Rules of Professional Conduct as follows:
1. Model Rule 3.3(a)(3). Respondent knowingly offered evidence that Respondent knows to be false. Respondent knowingly offered false evidence, namely the copies of his checks payable to Elkena Palsis, Cesar Loreto and Rene Neponeuceino ("the three checks"). Respondent filed these documents on October 15, 2003 and relied upon these documents to validate his claim in Small Claim No. 69-03. All three checks were drawn on Respondent's own checking account, written out and signed by Respondent.
2. Model Rule 3.3(a)(3). Respondent knew of the falsity of the documents and failed to take reasonable remedial measures, including disclosure to the Court. Respondent knew of the false dates on the three checks, and failed to inform the Court of the falsity of the dates on the three checks, even after the Bank's statement of account indicated that the checks were cashed months before the dates on the three checks.
3. Model Rule 3.4(b). Respondent falsified evidence. Respondent falsified evidence by altering the dates on each of the three checks.
4. Model Rule 8.4(b). Respondent committed a criminal act that reflects adversely on the Respondent's honesty, trustworthiness and fitness as a trial counselor. Respondent committed the criminal offense of forgery, Kosrae State Code, Section 13.608, which reflects adversely on the Respondent's honesty, trustworthiness and fitness as a trial counselor.
5. Model Rule 8.4(c). Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation. Respondent altered each of the three checks, having filed the three checks with the Court. This conduct is alleged to involve dishonesty, fraud, deceit and misrepresentation.
6. Model Rule 8.4(d). Respondent engaged in conduct that is prejudicial to the administration of justice. Respondent submitted and filed evidence known to be false, and has asked the Court to accept and rely upon such false evidence, in order to obtain a favorable Court ruling on his small claim.
7. Model Rule 8.4(a). Respondent violated the Model Rules of Professional Conduct, as set forth in detail in Paragraphs 1 through 6 above.
The disciplinary system for attorneys and trial counselors is structured not only to protect the public and maintain integrity of the judicial system, but also to inspire confidence in the public that the legal profession is being regulated. Consequently, it is imperative that that disciplinary proceedings be considered and initiated, as appropriate, where there has been allegations of misconduct by legal counsel.
Respondent failed to timely respond to the Order and Notice, and the factual allegations made therein. Respondent failed to request an extension of time to respond either verbally or in writing. In the event that Respondent fails to respond within the prescribed time, the factual allegations shall be deemed admitted. See ABA Model Rules for Disciplinary Proceedings , Rule 11.D and Rule 33. Accordingly, the factual allegations made in the Order and Notice, paragraph 1 through 7 are deemed admitted by the Respondent for the purpose of this proceeding.
It is implicit in the legal counsel's role as an officer of the court that he owes a duty of candor and honesty to the court. United States v. Shafer Equip. Co., 11 F.3d 450 (4th Cir. 1993). Thus a legal counsel's first duty is to the court and to the proper administration of justice. State v. Taylor, 648 So. 2d 701 (Fla. 1995). A legal counsel's duty of candor and honesty to the court applies even when the counsel is acting as a party and not as legal counsel. People v. Kolbjornsen, 917 P.2d 277 (Colo. 1996). Thus Rule 3.3(a) applies when a legal counsel makes statements and submits evidence as a party rather than as counsel. In re Diggs, 544 S.E.2d 628 (S.C. 2001) (lawyer knowingly submitted false information on his own Continuing Legal Education compliance report). In the case of Mathias Mongkeya v. Vernon Youngstrom, Small Claim No. 69-03, Respondent appeared pro se on his own behalf as Plaintiff to bring his personal claims for reimbursement against the Defendant.
No breach of professional ethics or of the law, is more harmful to the administration of justice or more hurtful to the public appraisal of the legal profession than the knowledgeable use by a legal counsel of false testimony and evidence in the judicial process. See Dodd v. Florida Bar, 118 So. 2d 17 (Fla. 1960). For this violation of ethics, disbarment is the presumptive penalty. Id. It is appropriate to disbar legal counsel who have submitted documents known to be false, with the intent to mislead the court. See In re Crain, 566 N.W.2d 404 (N.D. 1997), In re Gabell, 858 P.2d 404 (N.M. 1993) (disbarring lawyer who manufactures documents to use in litigation). In the case of Mathias Mongkeya v. Vernon Youngstrom, Small Claim No. 69-03, Respondent altered his own documents ("the three checks") and submitted them as evidence to the Court in support of his claim for reimbursement.
Model Rule 3.3 also requires legal counsel to take remedial measures when he discovers that false evidence was offered. The false evidence must be disclosed to the court. ABA Formal Ethics Op. 98-412 (1998). The remedial action must be taken immediately when it is discovered. Idaho State Bar v. Warrick, 44 P.3d 1141 (Idaho 2002). Respondent failed to disclose to the court that he had offered false evidence ("the three checks"). Respondent failed to disclose to the court that he had offered false evidence, even after the FSM Bank Statements of his account revealed the alteration of the dates of the three checks.
Fair competition in the adversary system is secured by prohibition against alteration, destruction and concealment of evidence. Rule 3.4 ensures that litigation is conducted fairly. See Kos. MRPC R. 3.4 cmt. Model Rule 3.4 prohibits a lawyer from altering a document that has potential evidentiary value. See Price v. State Bar, 638 P.2d 1311 (Cal. 1982) (prosecutor altered information on taxi trip ticket to conform with witness testimony and then destroyed the original); Briggs v. McWeeny, 796 A.2d 516 (Conn. 2002) (lawyer attempted to alter engineering report with evidentiary value in litigation); In re Zeiger, 692 A.2d 1351 (D.C. 1997) (lawyer altered client's medical records and submitted them to opposing party); In re Caranchini, 956 S.W.2d 910 (Mo. 1997) (lawyer used forged document to support plaintiff's claim). Here, Respondent altered his own documents ("the three checks") which had evidentiary value in his claim against the Defendant and submitted them to the Court. Suspension from the practice of law is appropriate discipline for misrepresentation by counsel. In re Disciplinary Action against Fuller, 621 N.W.2d 460 (Minn. 2001).
Falsification of documents is prohibited under Model Rule 8.4(c). See In re Sealed Appellant, 194 F.3d 666 (5th Cir. 1999) (lawyer backdated endorsement of stock certificates); In re Brown, 766 N.E.2d 363 (Ind. 2002) (forgery of client's signature on check). Here, Respondent altered the three checks to back date them, so that the checks would validate payments for warranty repairs within the warranty period.
Model Rule 8.4(d) prohibits legal counsel from engaging in conduct that is prejudicial to the administration of justice. The Rule applies to both personal and professional conduct of legal counsel, encompasses conduct prohibited by other ethics rules, as well as conduct not specifically addressed by other rules. Annotated Model Rules of Professional Conduct, Rule 8.4, at 614 (5th ed. 2003). It includes conduct that has an adverse effect upon the administration of justice. See In re Friedman, 23 P.3d 620 (Alaska 2001); In re Mason, 736 A.2d 1019 (D.C. 1999). Deceitful conduct is a violation of Rule 8.4(d) regardless of whether that conduct is directed at the court, a client or others. Speckman v. Minnesota Mining & Mfg. Co., 7 F. Supp. 2d 1030. Here, Respondent altered evidence (the three checks), and submitted this false evidence to the court to substantiate his claim for reimbursement. If the three checks had been submitted in their original unaltered form, the Respondent's claim would have been dismissed as without merit, as the claim did not comply with the conditions of the Warranty Agreement. Thus, Respondent's conduct had a negative effect upon the administration of justice as it required unnecessary litigation: several hearings with substantial time expended by the presiding Justice, court staff, the defendant and his counsel, and operational expenses of the Court.
Respondent's conduct was prejudicial not only to the administration of justice, but also to our judicial system. In Kosrae, many persons are not sophisticated in knowledge of the judicial system. Consequently they place complete trust and faith in their legal counsel to properly present their claim and appear before the court. Improper conduct by one legal counsel reflects not only upon himself, but also upon the entire legal profession as a whole. The falsification of evidence and submission of false evidence prejudices the fairness of our legal system and leads to increased mistrust and skepticism by the public in the legal profession and the legal process.
This Court has carefully considered factual allegations made against Respondent, which are deemed admitted for this proceeding, based upon Respondent's complete failure to response to the Order and Notice of Disciplinary Proceeding. Based upon these facts and upon applicable law, I find that the Respondent, as a trial counselor admitted to practice in the State of Kosrae, and subject to the Model Rules of Professional Conduct, did violate the Model Rules of Professional Conduct, Rules 3.3(a), 3.4(b), 8.4(a), 8.4(b), 8.4(c), and 8.4(d) through his conduct in altering the three checks in the case of Mathias Mongkeya v. Vernon Youngstrom, Small Claim No. 69-03, and presenting those altered checks to this Court as evidence in support of his claim for reimbursement. I find that the imposition of discipline is warranted for these violations of the Model Rules of Professional Conduct.
The Respondent is hereby suspended from the practice of law for a period of six (6) months, effective immediately. Respondent shall within ten (10) days of service of this Order, notify in writing, all clients being represented by Respondent in any pending matters, any opposing counsel in any pending matters, that the Respondent has been disqualified by Court order to act as legal counsel. Respondent may re-apply for admission to practice law in the State of Kosrae, in writing no earlier than December 20, 2004. Respondent shall be required to again take and successfully pass the Kosrae State Bar Examination before being re-admitted to practice law in the State of Kosrae.
The Chief Clerk is ordered to unseal this file and to remove the Respondent's name from the listing of persons admitted to practice law in the State of Kosrae, pursuant to this Order.
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