Cite as FSM v. Edgar ,
4 FSM Intrm. 249 (Pohnpei 1990)

[4 FSM Intrm. 249]




FSM CRIM. NO. 1990-503


Edward C. King
Chief Justice
July 5, 1990

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
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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).
*    *    *    *
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.

     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.

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