Cite as Wakuk v. Melander,12 FSM Intrm. 73 (Kos. S. Ct. Tr. 2003)

[12 FSM Intrm. 73]

PROBATE CASE NO. 4-03

Hearing: August 13, 2003
Decided: August 13, 2003

APPEARANCES:

HEADNOTES

Attorney, Trial Counselor and Client – Attorney Discipline and Sanctions

The Model Rules of Professional Conduct are adopted pursuant to Kosrae State Code, Section 6.101(f), and applied to all counsel admitted to practice law in Kosrae through GCO 2001-5. Wakuk v. Melander, 12 FSM Intrm. 73, 74 (Kos. S. Ct. Tr. 2003).

Attorney, Trial Counselor and Client – Withdrawal of Counsel

Counsel may withdraw from representation of a client if it could be accomplished without material adverse effect on the interests of the client or if: 1) the client continues conduct that the counsel believes is criminal or fraudulent, or 2) the client has used counsel's services to commit a crime or fraud; or 3) the client fails to substantially fulfill an obligation to the counsel regarding counsel's services and has been given warning (i.e. non-payment of fees, no cooperation in discovery); or 4) the client insists upon pursuing an objective that counsel believe is repugnant or imprudent; or 5) the representation will result in an unreasonable financial burden on the counsel, or 6) when other good cause exists. Wakuk v. Melander, 12 FSM Intrm. 73, 74 (Kos. S. Ct. Tr. 2003).

Attorney, Trial Counselor and Client – Withdrawal of Counsel

A motion to withdraw as counsel will be denied when withdrawal from representation will have material adverse effect on the client's interests because the matter is pending for hearing and

[12 FSM Intrm. 74]

withdrawal is sought right before the hearing, and when counsel has failed to cite to, or provide any grounds under Model Rule of Professional Conduct 1.16 as the basis for withdrawal. Wakuk v. Melander, 12 FSM Intrm. 73, 74-75 (Kos. S. Ct. Tr. 2003).

Attorney, Trial Counselor and Client – Attorney Discipline and Sanctions

A legal services' agency's request to withdraw based solely upon the agency's policy, even though in the past the agency has routinely violated its own policy, will be denied. The Model Rules of Professional Conduct, which regulate the conduct of all legal counsel admitted to practice law in the State of Kosrae, as adopted by General Court Order pursuant to sate law, take precedence over the agency's policy. Wakuk v. Melander, 12 FSM Intrm. 73, 75 (Kos. S. Ct. Tr. 2003).

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COURT'S OPINION

YOSIWO P. GEORGE, Chief Justice:

On July 23, 2003, Counsel for Petitioner filed a Motion to Withdraw as Counsel of Record. A hearing was held on August 13, 2003. Canney Palsis appeared on behalf of the Petitioner. Mr. Palsis seeks to withdraw from this matter on the basis that one of the respondents, Melander Melander, has not consented to the appointment of the Petitioner as trustee for the Heirs of Tedrick Melander for parcel 002-U-16 and is not represented by counsel. Mr. Palsis argues that MLSC policy prohibits him from representing Kosraeans against Kosraeans unless the other party is represented by counsel.

Upon review of its cases, this Court takes judicial notice of at least five different cases filed in this Court where MLSC represented a Kosraean against an unrepresented Kosraean. Thus, based upon the records of this Court, MLSC has routinely violated its own policy.

Counsel's representation of the Petitioner is further governed by the Model Rules of Professional Conduct, Rule 1.16(b). The Model Rules of Professional Conduct are adopted pursuant to Kosrae State Code, Section 6.101(1)(f), and applied to all counsel admitted to practice law in Kosrae through GCO 2001-5. Model Rule 1.16(b) specifies that a counsel may withdraw from representation of a client if it could be accomplished without material adverse effect on the interests of the client or if:

1. the client continues conduct that the counsel believes is criminal or fraudulent, or

2. the client has used counsel's services to commit a crime or fraud; or

3. the client fails to substantially fulfill an obligation to the counsel regarding counsel's services and has been given warning (i.e. non-payment of fees, no cooperation in discovery), or

4. the client insists upon pursuing an objective that counsel believe is repugnant or imprudent; or

5. the representation will result in an unreasonable financial burden on the counsel, or

6. when other good cause exists.

Model Rule 1.16(c) states that the counsel must continue representation if ordered to do so by a tribunal, even if there is good cause for termination of representation.

Applying Rule 1.16(b) to this case, it is clear that withdrawal of MLSC from representation of

[12 FSM Intrm. 75]

the Petitioner Lelean Wakuk will have material adverse effect on the interests of the client. This matter is now pending for hearing. Withdrawal of MLSC from representation of the Petitioner at this time, right before the hearing, will have material adverse effect on the interests of the client. Furthermore, MLSC has not shown that any of the other reasons provided by the Rule (1-6) exists in this case.

MLSC has failed to cite to, or provide any grounds under the Model Rules of Professional Conduct, Rule 1.16, as the basis for withdrawal. Counsel for Petitioner relies upon MLSC's policy as basis for the withdrawal request, even though in the past this policy has been routinely violated by MLSC. The Model Rules of Professional Conduct, which regulate the conduct of all legal counsel admitted to practice law in the State of Kosrae, as adopted by General Court Order pursuant to State law, take precedence over the MLSC policy.

The Motion to Withdraw as Counsel is denied. Mr. Palsis shall remain as counsel for Petitioner through conclusion of this matter. The hearing on the Verified Petition for Appointment of Trustee is set for September 9, 2003 at 9 am. Parties who reside off-island and who wish to participate in the hearing may telephone the Court at 691-370-3033 at the hearing time.