FSM SUPREME COURT TRIAL DIVISION
Cite as Helgenberger v. Ramp & Mida Law Firm, 21 FSM R.445(Pon. 2018)
DERRICK HELGENBERGER and ESTATE OF
BERNARD HELGENBERGER,
Plaintiffs,
vs.
RAMP & MIDA LAW FIRM, FREDRICK L.
RAMP, BANK OF THE FSM, DELSON
EHMES, JR., BERNIE HELGENBERGER, and
ROCKSON HELGENBERGER,
Defendants.
CIVIL ACTION NO. 2017-051
ORDER DENYING MOTIONS AND REQUESTS
Larry Wentworth
Associate Justice
Decided: February 26, 2018
APPEARANCES:
For the Plaintiff:
Joseph S. Phillip, Esq.
P.O. Box 464
Kolonia, Pohnpei FM 96941
For the Defendant: David Angyal, Esq.
Ramp & Mida Law Firm
P.O. Box 1480
Kolonia, Pohnpei FM 96941
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A law firm may use a trade name, and "Ramp & Mida Law Firm" is an acceptable trade name since Ramp has contractually agreed to his name's inclusion and since he was previously a principal in the firm and has now retired. Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 449 (Pon. 2018).
An attorney who has left the FSM with no future prospect of practice here, may be considered retired. Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 449 (Pon. 2018).
When the FSM Supreme Court has not previously construed an aspect of an FSM Model Rule
of Professional Conduct, it may look to U.S. sources construing similar or identical rules for guidance in interpreting the rule. Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 449 n.1 (Pon. 2018).
A law firm's name, even if it is a trade name, cannot be materially misleading. Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 449 (Pon. 2018).
There is no ethical impropriety in the continued use of a firm name including a retired attorney's name so long as the retiring attorney's name was removed from the list of active attorneys on the firm's letterhead and in other communications, and, if the retired attorney has instead become "of counsel" – retired, but still regularly available to the firm – that fact should be noted. Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 449 (Pon. 2018).
A law firm's name may contain the name of a former co-owner attorney who has retired, but the law firm's communications must so indicate. Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 449 (Pon. 2018).
Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact. Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 449 (Pon. 2018).
When an FSM law firm's communications do not indicate that an attorney is retired or no longer practices with the firm, the court is forced to conclude that the law firm must, in some form, remain that attorney's agent for service of FSM process, as he is represented as part of the organization. Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 449 (Pon. 2018).
A motion to quash service of process is a motion brought on an insufficiency of service claim. As such, it is a Rule 12(b)(5) motion to dismiss, which courts often, instead of granting a dismissal, just quash the service and grant further time to effect service of process. Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 450 (Pon. 2018).
A default can be entered against a party only when that party, against whom a judgment for affirmative relief is sought, has failed to plead or otherwise defend and that fact is made to appear by affidavit or otherwise. Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 450 (Pon. 2018).
Rule 12(f) allows striking from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter, but neither a motion to dismiss nor a motion to quash service of process is a pleading. Thus, a party cannot move under Rule 12(f) to strike a motion to dismiss or other Rule 12(b) motion, or any motion. Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 450 (Pon. 2018).
When an FSM court has not previously construed an FSM procedural rule which is identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance in interpreting the rule.
Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 451 n.2 (Pon. 2018).
Motions to strike pleadings under Rule 12(f) are viewed with disfavor and are rarely granted. Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 451 (Pon. 2018).
A court must be wary when considering a motion to disqualify opposing counsel because of the possibility that the motion may be abused as a harassment technique, and because court resources are sorely taxed by the increasing use of disqualification motions as harassment and dilatory tactics. Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 451 (Pon. 2018).
When the plaintiffs' motion to strike motions is actually one to disqualify opposing counsel since that is the major remedy that the motion seeks, the court will analyze the motion as such, because a document or a filing is what it is regardless of what the party filing it has labeled it since form must not be elevated over substance. Absent compelling reasons to the contrary, form must ever subserve substance. Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 451 (Pon. 2018).
Although a corporation may appear only through licensed counsel, there is no requirement that such licensed attorney must not be an employee of the corporation that he or she represents. The licensed attorney may be an employee of the corporation. Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 451 (Pon. 2018).
When a law firm is a party to litigation, one of its member attorneys may represent it. Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 451-52 (Pon. 2018).
When an attorney is representing himself or herself, or the attorney's law firm is representing the attorney, the Rule 3.7(a) prohibition of being an advocate in a proceeding in which he or she is also a witness, does not apply. Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 452 (Pon. 2018).
As a party litigant, a lawyer can represent himself if he so chooses. Implicit in the right of self-representation is the right of representation by retained counsel of one's choosing. A party litigant does not lose this right merely because he is a lawyer. Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 452 (Pon. 2018).
When it is a party litigant, a law firm may chose to be represented by one of its member attorneys, just as any other business entity or corporation could be represented by one of its employees if that employee is a licensed attorney. The law firm does not lose that right merely because the business it engages in is the practice of law or because its members are subject to the FSM Model Rules of Professional Conduct. Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 453 (Pon. 2018).
That the plaintiffs had to hire and pay an attorney to pursue the suit while the law firm defendant
will represent itself, and will not incur legal expenses as a result, does not constitute prejudice, or at least the type of prejudice that would require the court to disqualify opposing counsel. Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 453 (Pon. 2018).
A major factor in determining whether there is potential for adverse effect requiring counsel's disqualification is the likelihood that actual conflict will arise and the likely prejudice to the client from the conflict if it does arise. Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 453 (Pon. 2018).
The moving party bears the burden of proving facts that establish the necessary factual prerequisite for disqualification. Counsel will not be disqualified simply because the opposing party alleges the possibility of differing interests. Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 453 (Pon. 2018).
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LARRY WENTWORTH, Associate Justice:
This comes before the court on 1) Motion to Quash the Service of Process on Fredrick L. Ramp, filed September 1, 2017; 2) Amended Motion to Quash the Service of Process on Fredrick L. Ramp, filed September 5, 2017; 3) Opposition to Motion to Quash Service of Process, filed September 18, 2017; 4) Motion to Strike Motion to Dismiss; and Motion for Rule 11 Sanctions and for Attorney's Fees and in the Alternative Opposition to Motion to Dismiss, filed September 27, 2017; 5) Supplemental Motion to Strike Motion to Dismiss and/or in the Alternative Opposition to Motion to Dismiss, filed September 28, 2017; 6) Request for Entry of Default Against All the Defendants Except Bank of the FSM and Delson Ehmes, Jr., filed September 29, 2017; 7) Motion for Default Judgment Against Defendants Ramp & Mida Law Firm, Fredrick L. Ramp, Bernie Helgenberger, and Rockson Helgenberger, filed September 29, 2017; and 8) Opposition to Request for Entry of Default and Motion for Default Judgment, filed October 12, 2017. All these motions (and request) are denied. The reasons follow.
A. Parties' Positions
Fredrick L. Ramp moves to quash, as insufficient, the service made upon him by hand delivery of the complaint and summons to the Ramp & Mida Law Firm offices. Ramp asserts, supported by affidavit, that the Ramp & Mida law office is currently neither his usual place of abode nor his usual place of business since he is a resident of Georgia in the United States (and had left the Federated States of Micronesia in October 2016); since Kembo Mida, Jr., sometime in 2016, purchased all of Ramp's shares in the Ramp & Mida Law Firm, which is a corporation; and since he is no longer employed by the firm. Ramp implicitly concedes that the Ramp & Mida Law Firm was his usual place of business in the FSM before October 2016. He is now retired from the practice of law, at least in the FSM, although his name continues as a part of the firm name pursuant to contractual agreement and the FSM Model Rules of Professional Responsibility Rule 7.5. Ramp further asserts that the Ramp & Mida Law Firm is not authorized by law or by appointment to be his agent for the service of process.
The plaintiffs rely on various published advertisements, in the Kaselehlie Press and the phone book, to show that Ramp is still associated with the firm that continues to bear his name. Those
advertisements include not only Ramp's name but also his portrait photograph among the portrait photographs of the firm's other attorneys. The plaintiffs assert that the message the advertisements convey, and are meant to convey, is that the services of the very experienced and successful attorney, Fredrick L. Ramp, are available at the Ramp & Mida Law Firm, or, at a minimum, his guidance, wisdom, and experience may be still available to the Ramp & Mida Law Firm's other attorneys.
B. Trade Name
Ramp is correct that the Ramp & Mida Law Firm may use a trade name, FSM MRPC R. 7.5(a), and that "Ramp & Mida Law Firm" is an acceptable trade name for the firm since Ramp has contractually agreed to his name's inclusion and since he was previously a principal in the firm.
Since Ramp has left the FSM with no future prospect of practice here, he may be considered retired. See Conn. Informal Ethics Opinion 03-12, 2003 WL 23663022, at 1 (2003).1 There are, however, still ethical considerations involved. The firm's name, even if it is a trade name, cannot be materially misleading. FSM MRPC R. 7.1(a); FSM MRPC R. 7.5 cmt. ("use of trade names . . . in law practice is acceptable so long as it is not misleading"); cf. Ore. Ethics Opinion 2005-169, at 1 (2005).
A situation similar to the one here, was addressed in Connecticut Informal Ethics Opinion 03-12, 2003 WL 23663022 (2003). In that instance, one lawyer partner in a limited liability corporation was moving out-of-state and retiring, and the issue presented was whether the remaining lawyer, who had just become the corporation's sole shareholder, could continue to use the same corporate name that included the former co-owner attorney's name. That opinion concluded that there was no ethical impropriety in the continued use of the firm name so long as the retiring attorney's name was removed from the list of active attorneys on the firm's letterhead and in other communications. Id. at 2. Also, if the retired attorney has instead become "of counsel" – retired, but still regularly available to the firm – that fact should be noted. Fla. Ethics Opinion 00-1, 2000 WL 772858 (2000); Haw. Dis. Bd. Formal Opinion No. 43 (2010).
This has not been done here. Ramp's appearance in the color portrait photographs of the Ramp & Mida Law Firm attorneys in its advertising does not indicate that he is no longer an active attorney in the firm. A firm's name may contain the name of a former co-owner attorney who has retired, but the law firm's communications should so indicate. Ill. Ethics Opinion 03-02 (2004). The Ramp & Mida Law Firm communications (advertisements) do not so indicate.
Under the FSM ethical rules, "[l]awyers may state or imply that they practice in a partnership or other organization only when that is the fact." FSM MRPC R. 7.5(d). The Ramp & Mida Law Firm advertisements imply that Ramp still practices with the organization. But that is not the fact.
Until the Ramp & Mida Law Firm's communications indicate that Ramp is retired or no longer practices with the firm, the court is forced to conclude that the Ramp & Mida Law Firm must, in some form, remain Ramp's agent for service of FSM process, as he is represented as part of the organization. Otherwise, the Ramp & Mida Law Firm would be in violation of FSM MRPC R. 7.5. See generally AMERICAN BAR ASS'N, ANNOTATED RULES OF PROFESSIONAL CONDUCT 545-46 (6th ed. 2007).
The plaintiffs request that a default be entered against all defendants except the Bank of the FSM and Delson Ehmes, Jr. because, in their view, those defendants have neither answered nor otherwise defended.
A. Whether Defendants Have Otherwise Defended
Ramp has filed a motion to quash service of process. A motion to quash service of process is a motion brought on an insufficiency of service claim. As such, it is a Rule 12(b)(5) motion to dismiss, which courts often, instead of granting a dismissal, just quash the service and grant further time to effect service of process. Fuji Enterprises v. Jacob, 20 FSM R. 121, 127 (Pon. 2015) (for insufficient service of process courts will often quash service instead of dismissing the action; that way only the service need be repeated); FSM v. Fu Yuan Yu 096, 16 FSM R. 1, 3 (Pon. 2008) (same). (Ramp wisely just asks that service be quashed.)
The other defendants against whom a defaults are sought, the Ramp & Mida Law Firm, Bernie Helgenberger, and Rockson Helgenberger, filed, on September 28, 2017, a motion to dismiss this case because the complaint fails to state a claim for which this court could grant relief since, in their view, the case is properly before the Pohnpei Supreme Court.
A default can be entered against a party only when that party, against whom a judgment for affirmative relief is sought, "has failed to plead or otherwise defend . . . and that fact is made to appear by affidavit or otherwise." FSM Civ. R. 55(a). These four parties, Fredrick L. Ramp, the Ramp & Mida Law Firm, Bernie Helgenberger, and Rockson Helgenberger, although they have not filed answers, have otherwise defended. Ramp defended by filing a Rule 12(b)(5) motion based on the insufficiency of process. And the other three defendants have defended by filing a Rule 12(b)(6) and 12(b)(1) motion to dismiss.
B. Whether Motions May Be Stricken under Civil Rule 12(f)
The plaintiffs contend that the court must disregard or strike those defensive motions because the lawyers filing those defenses, Ramp & Mida Law Firm members, are, in the plaintiffs' view, barred from representing those parties. The plaintiffs cite to Civil Procedure Rule 12(f) as the mechanism with which to strike the Ramp & Mida Law Firm filings.
Rule 12(f) allows striking "from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." None of the Ramp & Mida Law Firm filings constitute a pleading. See FSM Civ. R. 7(a) (list of filings that are pleadings). Neither a motion to dismiss nor a motion to quash service of process is a pleading. Primo v. Pohnpei Transp. Auth., 9 FSM R. 407, 410 (App. 2000); Perman v. Ehsa, 18 FSM R. 452, 454-55 (Pon. 2012); Sorech v. FSM Dev. Bank, 18 FSM R. 151, 155 (Pon. 2012); Ladore v. Panuel, 17 FSM R. 271, 274 (Pon. 2010); Sipos v. Crabtree, 13 FSM R. 355, 367 (Pon. 2005). Rule 12(f) is thus inapplicable, and a party cannot move under that rule to strike a motion to dismiss or other Rule 12(b) motion, or any motion. E.g., Weiss v. PPG Indus., Inc., 148 F.R.D. 289, 291-92 (M.D. Fla. 1993) ("[a] motion is not a pleading, and thus a motion to strike a motion is not proper under [Rule] 12(f)"); O'Connor v. Nevada, 507 F. Supp. 546, 548 (D. Nev. 1981) ("a Rule 12(f) motion to strike only concerns striking matters from pleadings and a motion to
dismiss is not a pleading").2 Furthermore, motions to strike under Rule 12(f) are viewed with disfavor and are rarely granted. Medabalmi v. Island Imports Co., 10 FSM R. 32, 35 (Chk. 2001).
C. Whether the Ramp & Mida Law Firm Is Disqualified
Nevertheless, the court will consider the plaintiffs' motion as one to disqualify the Ramp & Mida Law Firm, to which the plaintiffs have appended a Rule 11 motion for sanctions based on their expectation that they will prevail on their motions to strike.
A court must be wary when considering a motion to disqualify opposing counsel because of the possibility that the motion may be abused as a harassment technique. FSM Dev. Bank v. Ehsa, 18 FSM R. 388, 391 (Pon. 2012); Marsolo v. Esa, 17 FSM R. 480, 484 (Chk. 2011); McVey v. Etscheit, 14 FSM R. 207, 210 (Pon. 2006); Nix v. Etscheit, 10 FSM R. 391, 396 (Pon. 2001). Furthermore, "[c]ourt resources are sorely taxed by the increasing use of disqualification motions as harassment and dilatory tactics." Grovitz v. Planning Bd. of Nantucket, 475 N.E.2d 377, 380 n.7 (Mass. 1985).
Against this backdrop, the court will analyze the plaintiffs' motion as one to disqualify opposing counsel since that is the major remedy that the motions seek. A document or a filing is what it is regardless of what the party filing it has labeled it since form must not be elevated over substance because, absent compelling reasons to the contrary, form must ever subserve substance. Berman v. Pohnpei Legislature, 17 FSM R. 339, 352 n.5 (App. 2011); Carlos Etscheit Soap Co. v. McVey, 17 FSM R. 427, 435 (App. 2011); FSM Dev. Bank v. Arthur, 16 FSM R. 132, 138 n.4 (Pon. 2008); McIlrath v. Amaraich, 11 FSM R. 502, 505-06 (App. 2003); Mori v. Hasiguchi, 19 FSM R. 222, 225-26 (Chk. 2013) (regardless of what a movant calls a motion, the court will look to the actual relief sought and decide the motion on the basis of what it actually is, not what it is labeled).
The plaintiffs assert that Ramp & Mida Law Firm attorneys cannot represent Bernie or Rockson Helgenberger because there is a conflict between them and the Ramp & Mida Law Firm, and that a Ramp & Mida Law Firm attorney cannot represent the Ramp & Mida Law Firm or any of its attorneys because a corporation cannot represent itself. The plaintiffs also claim that Ramp & Mida Law Firm member attorneys must be barred because they would necessarily be witnesses in the litigation. In the plaintiffs' view, since no Ramp & Mida Law Firm attorney can appear on its behalf, the Ramp & Mida Law Firm must hire (or should have hired) outside counsel to represent itself (and presumably also to represent Ramp personally), and since it did not, all of the Ramp & Mida Law Firm's filings must be stricken.
The court must reject this view. While it is true that a corporation may appear only through licensed counsel, FSM Telecomm. Corp. v. Helgenberger, 17 FSM R. 407, 411 (Pon. 2011), there is no requirement that such licensed attorney must not be an employee of the corporation that he or she represents. The licensed attorney may be an employee of the corporation. Cf. id. (corporation may not be represented by nonlawyer employee); FSM Dev. Bank v. Kaminanga, 12 FSM R. 454, 455-56 (Chk. 2004) (plaintiff may be entitled to fee award even though was represented by in-house counsel). It is thus acceptable that when a law firm is a party to litigation that it be represented by one of its member
attorneys. Cf. Fontanillas-Lopez v. Morell Bauza Carbuena & Dapena, LLC, 832 F.3d 50, 61 (1st Cir. 2016) (attorney representing his own law firm is not representing himself personally and may be entitled to fee award); Treasurer of Drury Indus., Inc. Health Care Plan & Trust v. Goding, 692 F.3d 888, 898 (8th Cir. 2012) (same); Witte v. Kaufman, 40 Cal. Rptr. 845, 848 (Cal. Ct. App. 2006) (law firm represented by its own member not entitled to fee award because it incurred no fee).
Furthermore, the possibility that a current Ramp & Mida Law Firm member would be a witness does not require the Ramp & Mida Law Firm's disqualification. First, other than Ramp himself, none of the current the Ramp & Mida Law Firm attorneys were around when the events that gave rise to this ligation occurred, and so they lack the first-hand knowledge usually sought in a witness.
Second, when an attorney is representing himself or herself, or the attorney's law firm is representing the attorney, the Rule 3.7(a)3 prohibition of being an advocate in a proceeding in which he or she is also a witness, does not apply. Crowe v. Smith, 151 F.3d 217, 234 (5th Cir. 1998) (attorney testimony rule completely inapplicable to attorney pro se litigants); Jones v. Lujan, 883 F.2d 1031, 1035 (D.C. Cir. 1989) ("litigant does not lose his entitlements as an attorney merely by virtue of his self-representation); Duncan v. Poythress, 777 F.2d 1508, 1515 n.21 (11th Cir. 1985) (rule against lawyer being both advocate and witness is inapplicable to an attorney party litigant); DeCamp v. Douglas County Franklin Grand Jury, 752 F. Supp. 340, 342-43 (D. Nebr. 1990) (lawyer who is a party and expected to be a witness may be represented by the firm in which he is a partner); Presnick v. Esposito, 513 A.2d 165, 166-67 (Conn. App. Ct. 1986) (it was error to disqualify attorney from representing himself in suit over his fees); Farrington v. Law Firm of Sessions, Fishman, 687 So.2d 997, 1000-02 (La. 1997) (Rule 3.7 does not apply to preclude lawyers defending a malpractice suit from representing themselves; and Rules 1.7 and 1.9 are not implicated when other firm members represent themselves); Borman v. Borman, 393 N.E.2d 847, 856 (Mass. 1979) (was error to disqualify attorney and attorney's law partners from representing him, although, as a party litigant, he would be a witness; lawyer may represent himself or be represented by members of his firm); Ayres v. Canales, 790 S.W.2d 554, 557-58 (Tex. 1990) (was clear abuse of discretion for trial court to disqualify lawyers from representing themselves and to disqualify members of their law firm from representing them in a fee dispute); Beckstead v. Desert Roofing Co., 831 P.2d 130, 134 (Utah Ct. App. 1992) (courts have consistently concluded Rule 3.7 does not apply to lawyer representing self).
"As a party litigant . . . a lawyer could represent himself if he so chose. Implicit in the right of self-representation is the right of representation by retained counsel of one's choosing. A party litigant does not lose this right merely because he is a lawyer . . . ." Borman, 393 N.E.2d at 856 (citation and footnote omitted).
Likewise, a law firm, even though it is a party litigant, may chose to be represented by one of its member attorneys, just as any other business entity or corporation could be represented by one of its employees if that employee is a licensed attorney. The Ramp & Mida Law Firm does not lose that right merely because the business it engages in is the practice of law or because its members are subject to the FSM Model Rules of Professional Conduct.
The plaintiffs also contend that they are prejudiced because they had to hire and pay an attorney to pursue this suit while the Ramp & Mida Law Firm, if it is not compelled to hire outside counsel, will represent itself and will not incur legal expenses as a result. This does not constitute prejudice, or at least the type of prejudice that would require the court to disqualify opposing counsel. The court further notes that this litigation will not be cost-free to the Ramp & Mida Law Firm. It will, of course, have some out-of-pocket costs, but more significantly, the time and resources the Ramp & Mida Law Firm expends on this litigation is time and resources it will not be able to use, but could have used, working on other cases for paying clients.
There is thus no legal basis on which the court could disqualify the Ramp & Mida Law Firm or its member attorneys from representing the law firm itself or Fredrick L. Ramp. Accordingly, the Ramp & Mida Law Firm, and its member attorneys, are not disqualified from representing either the Ramp & Mida Law Firm or Fredrick L. Ramp. But even if the court were to disqualify the Ramp & Mida Law Firm and its attorneys, its filings still would not be stricken, but would remain for new counsel to either adopt and pursue or to withdraw and proceed otherwise.
D. Representation of Bernie and Rockson Helgenberger
The plaintiffs also contend that the Ramp & Mida Law Firm is disqualified from representing Bernie Helgenberger and Rockson Helgenberger because "such representation is impertinent, immaterial and scandalous." Motion to Strike Motion to Dismiss; and Motion for Rule 11 Sanctions and for Attorney's Fees and in the Alternative Opposition to Motion to Dismiss at 2 (Sept. 27, 2017). The plaintiffs further contend that the Ramp & Mida Law Firm cannot represent the Helgenberger co-defendants because the Ramp & Mida Law Firm is a corporate entity that represents those co-defendants in the Pohnpei Supreme Court probate matter from which this case arises. The plaintiffs assert this gives rise to an impermissible conflict of interest because the Helgenberger co-defendants, as probate estate administrators, have under reported the estate's payments to creditors and that counsel was involved in preparing the probate court reports, and that somehow this a conflict of interest between the Ramp & Mida Law Firm and the Helgenberger co-defendants. This claim, however, is not alleged in the plaintiffs' pleadings. Nor is it supported by affidavit(s) based on first-hand knowledge. It is, at this time, pure speculation.
A major factor "in determining whether there is potential for adverse effect [is] . . . the likelihood that actual conflict will arise and the likely prejudice to the client from the conflict if it does arise." FSM MRPC R. 1.7 cmt. The plaintiffs, as the moving parties, bear the burden of proving facts that establish the necessary factual prerequisite for disqualification. Bottoms v. Stapleton, 706 N.W.2d 411, 418 (Iowa 2005). They have not done so. "Counsel will not be disqualified simply because the opposing party alleges the possibility of differing interests." Id. at 419 (emphasis in original). Accordingly, the plaintiffs' motion to disqualify the Ramp & Mida Law Firm from representing the Helgenberger co-defendants is denied.
E. Request for Default, Default Judgment, and Rule 11 Motion
Since none of the defendants' filings can be stricken, there is no basis to grant the plaintiffs' request for an entry of default against any party or a resulting default judgment. That request and that
motion are both denied. The plaintiffs' Rule 11 motion for sanctions was based on their view that the Ramp & Mida Law Firm's filings were improper and would be stricken. Since that is obviously not the case, the Rule 11 motion has no factual basis to support it and is therefore also denied.Accordingly, Ramp's motion to quash service of process and the plaintiffs' motion to strike certain defendants' motion to dismiss are both denied. Therefore the plaintiffs' request for an entry of default, and motion for default judgments, are also denied, as is their motion for Rule 11 sanctions.
Currently pending before the court are: 1) Defendant Ramp & Mida, Bernie Helgenberger and Rockson Helgenberger's Motion to Dismiss, filed September 18, 2017 and 2) Motion to Dismiss or in the Alternative Motion for Summary Judgment, filed by the Bank of the FSM on October 16, 2017. Those motions, and any other pending motion, will be heard on April 12, 2018, at 10:00 a.m.
________________________Footnotes:
1 When the FSM Supreme Court has not previously construed an aspect of an FSM Model Rule of Professional Conduct, the court may look to U.S. sources construing similar or identical rules for guidance in interpreting the rule. See, e.g., In re Extradition of Jano, 6 FSM R. 26, 27 n.1 (App. 1993); FSM Dev. Bank v. Tropical Waters Kosrae, Inc., 18 FSM R. 569, 571-72 n.1 (Kos. 2013); FSM Dev. Bank v. Ehsa, 18 FSM R. 388, 391 n.3 (Pon. 2012); Marsolo v. Esa, 17 FSM R. 480, 484 n.2 (Chk. 2011).
2 When an FSM court has not previously construed an FSM procedural rule which is identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance in interpreting the rule. See, e.g., Berman v. College of Micronesia-FSM, 15 FSM R. 582, 589 n.1 (App. 2008); Arthur v. FSM Dev. Bank, 14 FSM R. 390, 394 n.1 (App. 2006); Primo v. Pohnpei Transp. Auth., 9 FSM R. 407, 413 n.3 (App. 2000); Tom v. Pohnpei Utilities Corp., 9 FSM R. 82, 87 n.2 (App. 1999); Senda v. Mid-Pacific Constr. Co., 6 FSM R. 440, 444 (App. 1994). The court has not previously construed this plain reading of Rule 12(f).
3 FSM Model Rule of Professional Conduct Rule 3.7 provides:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except here:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.
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