FSM 4 Intrm. 249-251

THE SUPREME COURT OF THE

FEDERATED STATES OF MICRONESIA

Cite as FSM v. Edgar ,

4 FSM Intrm. 249 (Pohnpei 1990)

[4 FSM Intrm. 249]

FEDERATED STATES OF MICRONESIA,

Plaintiff,

vs.

MANASA EDGAR,

Defendant.

FSM CRIM. NO. 1990-503

OPINION

Edward C. King

Chief Justice

July 5, 1990

APPEARANCES:

For the Government: Joses Gallen

Pohnpei State Attorney

State Department of Justice

Kolonia, Pohnpei FM 96941

[4 FSM Intrm. 250]

For the Defendant: Joseph Phillip

Office of the Public Defender

Kolonia, Pohnpei FM 96941

* * * *

HEADNOTE

Attorney, Trial Counselor and Client

Where a member of the office of the public defender has a conflict of interest, based upon his familial relationship with the victim of the crime of which the defendant is accused, but where he is under no traditional obligation to cause harm to the defendant and has done nothing to make other members of the office feel that they are under any such obligation, and where there is no showing that the conflict would have any actual tendency to diminish the zeal of any other members of the office, the conflict of the first counsel is not imputed to the other members of the office. FSM v. Edgar, 4 FSM Intrm. 249, 251 (Pon. 1990).

* * * *

COURT'S OPINION AND ORDER

EDWARD C. KING, Chief Justice:

Counsel for the defense, Joseph Phillip, has moved on behalf of himself and the entire office of the public defender to be permitted to withdraw as counsel for the defendant, Manasa Edgar, in this criminal proceeding. The motion is based on Mr. Phillip's representation that his connections with the family of one of the victims (he adopted the son of the nephew of the victim) of the actions alleged to have been carried out by the defendant are such that his representation of Mr. Edgar would place him in a position of conflict within the meaning of Rule 1.7(b) of the FSM Model Rules of Professional Conduct, and that the conflict is imputed to the entire office of the public defender under Rule 1.10.

The Court takes as true Mr. Phillip's representations as to the nature, and legal effect, of his conflict for purposes of his own representation of Mr. Edgar. Mr. Phillip therefore is authorized to withdraw.

However, aside from the contention that the conflict of Mr. Phillip is imputed to the entire office under Rule 1.10, neither Mr. Phillip nor anybody else in the public defender's office has made any showing that Mr. Phillip's conflict would have any actual tendency to diminish the zeal, or in any way to compromise the efforts, of any other member of the office who might represent the defendant in this case.

Indeed, Mr. Phillip has acknowledged in open court that a customary apology has taken place, and that harmony and peace now exist between the

[4 FSM Intrm. 251]

families of the defendant and the victim. He has also said specifically that he is under no obligation to cause harm to the defendant and that he has done nothing to make any members of the office of the public defender feel that they are under any such obligation. Tr. June 14 hearing. The court sees no basis for, and rejects, counsel's contention that his position with the office of the public defender is "analogous to being from one family so that when one has a conflict of interest the rest would be bound thereby." Points and authorities page 3, filed June 14, 1990.

I conclude that a sufficient conflict exists to justify Mr. Phillip's motion to withdraw but that the conflict is personal to Mr. Phillip and does not extend to other members of the office. See generally Richards v. Clow, 702 P.2d 4 (N.M. 1985); People v. Garcia, 698 P.2d 801 (Colo. 1985); Akerly v. Red Barn System, Inc., 551 F.2d 539 (3d Cir. 1977); People v. Banks, No. 62815 (Ill. Sup. Ct. Nov. 1987), digested in 3 ABA/BNA Lawyer's Manual on Professional Conduct 411-12.

In any event, courts have inherent authority to require counsel to proceed even where counsel claims a conflict of interest. FSM MRPC 1.16(c). Here the office of the public defender has an official duty to represent defendants in criminal proceedings before this Court and compliance with that duty will not jeopardize the rights of Mr. Edgar.

NOW THEREFORE IT IS HEREBY ORDERED THAT:

1. The motion of Joseph Phillip is granted and he may withdraw as counsel for Mr. Edgar, provided however that he must arrange for substitution of some other member of the office of the public defender to serve in his stead.

2. The motion to withdraw is denied as to all other persons within the office of the public defender.

* * * *


	THE SUPREME COURT OF THE FEDERATED STATES OF MICRONESIA Cite as FSM v. Edgar , 4 FSM Intrm. 249 (Pohnpei 1990) [4 FSM Intrm. 249] FEDERATED STATES OF MICRONESIA, Plaintiff, vs. MANASA EDGAR, Defendant. FSM CRIM. NO. 1990-503 OPINION Edward C. King Chief Justice July 5, 1990 APPEARANCES: For the Government: Joses Gallen Pohnpei State Attorney State Department of Justice Kolonia, Pohnpei FM 96941 [4 FSM Intrm. 250] For the Defendant: Joseph Phillip Office of the Public Defender Kolonia, Pohnpei FM 96941 * * * * HEADNOTE Attorney, Trial Counselor and Client Where a member of the office of the public defender has a conflict of interest, based upon his familial relationship with the victim of the crime of which the defendant is accused, but where he is under no traditional obligation to cause harm to the defendant and has done nothing to make other members of the office feel that they are under any such obligation, and where there is no showing that the conflict would have any actual tendency to diminish the zeal of any other members of the office, the conflict of the first counsel is not imputed to the other members of the office. FSM v. Edgar, 4 FSM Intrm. 249, 251 (Pon. 1990). * * * * COURT'S OPINION AND ORDER EDWARD C. KING, Chief Justice: Counsel for the defense, Joseph Phillip, has moved on behalf of himself and the entire office of the public defender to be permitted to withdraw as counsel for the defendant, Manasa Edgar, in this criminal proceeding. The motion is based on Mr. Phillip's representation that his connections with the family of one of the victims (he adopted the son of the nephew of the victim) of the actions alleged to have been carried out by the defendant are such that his representation of Mr. Edgar would place him in a position of conflict within the meaning of Rule 1.7(b) of the FSM Model Rules of Professional Conduct, and that the conflict is imputed to the entire office of the public defender under Rule 1.10. The Court takes as true Mr. Phillip's representations as to the nature, and legal effect, of his conflict for purposes of his own representation of Mr. Edgar. Mr. Phillip therefore is authorized to withdraw. However, aside from the contention that the conflict of Mr. Phillip is imputed to the entire office under Rule 1.10, neither Mr. Phillip nor anybody else in the public defender's office has made any showing that Mr. Phillip's conflict would have any actual tendency to diminish the zeal, or in any way to compromise the efforts, of any other member of the office who might represent the defendant in this case. Indeed, Mr. Phillip has acknowledged in open court that a customary apology has taken place, and that harmony and peace now exist between the [4 FSM Intrm. 251] families of the defendant and the victim. He has also said specifically that he is under no obligation to cause harm to the defendant and that he has done nothing to make any members of the office of the public defender feel that they are under any such obligation. Tr. June 14 hearing. The court sees no basis for, and rejects, counsel's contention that his position with the office of the public defender is "analogous to being from one family so that when one has a conflict of interest the rest would be bound thereby." Points and authorities page 3, filed June 14, 1990. I conclude that a sufficient conflict exists to justify Mr. Phillip's motion to withdraw but that the conflict is personal to Mr. Phillip and does not extend to other members of the office. See generally Richards v. Clow, 702 P.2d 4 (N.M. 1985); People v. Garcia, 698 P.2d 801 (Colo. 1985); Akerly v. Red Barn System, Inc., 551 F.2d 539 (3d Cir. 1977); People v. Banks, No. 62815 (Ill. Sup. Ct. Nov. 1987), digested in 3 ABA/BNA Lawyer's Manual on Professional Conduct 411-12. In any event, courts have inherent authority to require counsel to proceed even where counsel claims a conflict of interest. FSM MRPC 1.16(c). Here the office of the public defender has an official duty to represent defendants in criminal proceedings before this Court and compliance with that duty will not jeopardize the rights of Mr. Edgar. NOW THEREFORE IT IS HEREBY ORDERED THAT: 1. The motion of Joseph Phillip is granted and he may withdraw as counsel for Mr. Edgar, provided however that he must arrange for substitution of some other member of the office of the public defender to serve in his stead. 2. The motion to withdraw is denied as to all other persons within the office of the public defender. * * * *