Cite as McVey v. Etscheit, 14 FSM Intrm. 207 (Pon. 2006)

[ 14 FSM Intrm. 207]

CIVIL ACTION NO. 2005-011

CIVIL ACTION NO. 2005-016

ORDER DISQUALIFYING COUNSEL AND MEMORANDUM

Andon L. Amaraich
Chief Justice

Hearing: January 12, 2006
Decided: April 25, 2006

[ 14 FSM Intrm. 208]

HEADNOTES

Attorney and Client – Disqualification of Counsel

The court must view with caution any motion to disqualify opposing counsel because such motions can be misused as a technique of harassment. McVey v. Etscheit, 14 FSM Intrm. 207, 210 (Pon. 2006).

Attorney and Client – Disqualification of Counsel

If opposing parties are only former clients, then counsel would be disqualified from representing the plaintiffs only if this is the same or a substantially related matter in which the plaintiffs’ interests are materially adverse to the former client’s interests unless the former client consents after consultation; or if counsel uses information relating to the representation to the former client’s disadvantage except as FSM MRPC Rule 1.6 would permit with respect to a client or when the information has become generally known. McVey v. Etscheit, 14 FSM Intrm. 207, 211 (Pon. 2006).

Attorney and Client – Disqualification of Counsel

If any of the defendants is plaintiffs' counsel's current client, then he cannot represent the plaintiffs unless he reasonably believes the representation will not adversely affect the relationship with the other client; and each client consents after consultation. McVey v. Etscheit, 14 FSM Intrm. 207, 211, 213 (Pon. 2006).

Attorney and Client

Since, upon termination of representation, a lawyer must surrender papers and property to which the client is entitled and may retain papers as security for a fee only to the extent permitted by law, when an attorney does not contend that the parties owe him money and that he is retaining the files as security for his fee, he has no ground for retaining those files if the parties are former clients and they have asked for the files’ return. Counsel may retain copies (not the originals) of any part of the files needed for future reference. McVey v. Etscheit, 14 FSM Intrm. 207, 211-12 (Pon. 2006).

Attorney and Client – Disqualification of Counsel

Counsel remains a client's attorney in a case when that case has not come to an end and the decision in it was apparently unsatisfactory to the client and since counsel never personally consulted with her after that decision about what further course of action she might want taken or even whether further possible action was desirable and neither took any steps to formally withdraw from that case. Counsel is therefore disqualified from representing the plaintiffs against her because that would

[ 14 FSM Intrm. 209]

adversely affect his relationship with his earlier, and still current, client. McVey v. Etscheit, 14 FSM Intrm. 207, 212 (Pon. 2006).

Attorney and Client – Withdrawal of Counsel

Merely mailing a client a copy of a decision is not enough to constitute a withdrawal. Something more must be done; otherwise she therefore remains his client. McVey v. Etscheit, 14 FSM Intrm. 207, 212 (Pon. 2006).

Attorney and Client – Disqualification of Counsel; Civil Procedure – Motions

When a "supplement" to a motion to disqualify a law firm from representing one defendant, seeks to disqualify the law firm from representing any defendant in the case, it is properly considered a separate motion. McVey v. Etscheit, 14 FSM Intrm. 207, 212 (Pon. 2006).

Attorney and Client

Since as an advocate, a lawyer zealously asserts the client's position under the rules of the adversary system, clients have every expectation that counsel should vigorously pursue their interests along the line of uncovering incriminating evidence against the opposing parties even if it happens to involve another of counsel's clients. McVey v. Etscheit, 14 FSM Intrm. 207, 213 (Pon. 2006).

Attorney and Client – Disqualification of Counsel

A motion to disqualify an attorney generally must be made at the earliest opportunity. When the motion was not made until shortly after a conflict arose that could support a disqualification motion and since the Model Rules contemplate that a disqualifying conflict may not arise until after representation has been undertaken, under the circumstances, the motion was timely. McVey v. Etscheit, 14 FSM Intrm. 207, 213 (Pon. 2006).

Attorney and Client – Disqualification of Counsel

Since loyalty is an essential element in the lawyer's relationship to a client, if an impermissible conflict of interest exists before representation is undertaken, the representation should be declined, and if such a conflict arises after representation has been undertaken, the lawyer should withdraw from the representation. McVey v. Etscheit, 14 FSM Intrm. 207, 213-14 (Pon. 2006).

Constitutional Law – Case or Dispute – Standing

It is generally true that a litigant cannot assert someone else's rights, but this does not apply when it is not a matter of asserting another's rights but of maintaining the integrity of the judicial process. McVey v. Etscheit, 14 FSM Intrm. 207, 214 (Pon. 2006).

Attorney and Client – Disqualification of Counsel

When a current client has not consented to a law firm's adverse representation of another client, this is an impermissible conflict in violation of FSM MRPC R. 1.7(a). When Rule 1.7(a) applies, it commands that a lawyer not represent the clients in question. This means that a lawyer must withdraw if the conflict is discovered after the concurrent representation is undertaken. McVey v. Etscheit, 14 FSM Intrm. 207, 214 (Pon. 2006).

Attorney and Client – Disqualification of Counsel

The lawyer must withdraw from even a long-standing, more remunerative client when that representation becomes adverse to another, newer client even if the law firm terminated its representation of the newer client in an attempt to avoid a conflict as soon as it knew that a conflict would arise because generally, an attorney cannot choose to withdraw from representing a client because he might then be able to represent another more desirable client. McVey v. Etscheit, 14 FSM Intrm. 207, 214 & n.10 (Pon. 2006).

[ 14 FSM Intrm. 210]

Attorney and Client – Disqualification of Counsel

If two firms share a common lawyer they will be treated as a single firm for purposes of disqualification. Similarly, for purposes of imputed disqualification under Rule 1.10, the two firms will be considered as one entity. Accordingly, it is incumbent upon the two firms to develop a procedure for screening conflicts of interest which will recognize and respond to the unique circumstance created by sharing an attorney in their respective legal practices. McVey v. Etscheit, 14 FSM Intrm. 207, 215 (Pon. 2006).

COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

This came before the court on January 12, 2006 for hearing on the following filings in Civil Action No. 2005-011:

(1)  Motion and Memorandum to Disqualify Counsel for Plaintiffs, filed June 23, 2005 by the defendants [Agnes Etscheit, personally and d/b/a Leo's Store, Etscheits Enterprises, Ace Commercial, Ace Construction, A-1 Fashion, Ronald Etscheit, Robert Etscheit, Jr., and Pohnpei True Value, Inc., hereinafter "Etscheits"]; Opposition to Defendants’ Motion to Disqualify Plaintiffs’ Counsel, filed July 4, 2005 by the plaintiffs [Erine McVey and Tim McVey, hereinafter "McVeys"]; and the Etscheits’ reply to opposition, filed August 8, 2005; and

(2)  the McVeys' Motion to Disqualify, filed July 22, 2005; the Etscheits' opposition, filed September 6, 2005; the McVeys' Supplement to Motion to Disqualify, filed December 27, 2005; a second supplement to the disqualification motion, filed January 10, 2006; and the Etscheits' opposition to the supplement, filed January 11, 2006.¹

After the hearing, the court requested further briefing on certain points, and the following filings also came before the court for its consideration of McVeys' motion to disqualify the Etscheit attorneys: PTVI Opposition to [McVey} Supplement to Motion to Disqualify, filed January 24, 2006; the Etscheits' Brief on Chinese Wall, filed January 27, 2006; the McVeys' Brief re Disqualification of Berman O'Connor Mann and Shklov and Related Firms, filed February 3, 2006; the Etscheits' Opposition Brief Re: Disqualification of Berman O’Connor Mann & Shklov, filed February 14, 2006.

Essentially each side seeks to disqualify their opponents' attorneys. The court must view with caution any motion to disqualify opposing counsel because such motions can be misused as a technique of harassment. FSM MRPC R. 1.7 cmt.; Nix v. Etscheit, 10 FSM Intrm. 391, 396 (Pon. 2001). The court’s consideration of each side's motion follows.

I.  Disqualification of McVeys' Counsel

The Etscheits contend that the Law Office of Fredrick L. Ramp should be disqualified from representing the McVeys in any law suit against them because that office 1) represents Agnes P. Etscheit in Etscheit v. Micah, PCA 164-97 (Pon. S. Ct. Tr.); 2) represents Etscheit Entertainment, Inc. and

("EEI")² drafted its incorporation papers and the leases between EEI and Agnes Etscheit and between EEI and Wallace Theaters Pohnpei, Inc.; and 3) represents Pohnpei True Value Inc. ("PTVI") in seven collection cases.³ Ramp asserts that Agnes Etscheit, EEI, and PTVI are all former clients. He contends that his involvement in Etscheit v. Micah ended either when he obtained a favorable ruling in the Pohnpei Supreme Court appellate division remanding the matter to the Pohnpei Public Lands Board of Trustees or when he later found and mailed to Agnes Etscheit a copy of the Board of Trustees' decision; that he represented EEI only for its incorporation and original leases and that other counsel currently represents EEI; and that his involvement in the PTVI collection cases ended in 1999 when PTVI instructed him to take no further action in them and wrote off the debts. The Etscheits dispute this because Ramp has not returned to the Etscheits the files for Etscheit v. Micah, EEI, and the seven PTVI collection cases⁴ despite their requests that he do so.

This motion's resolution turns on whether Agnes Etscheit or PTVI (or possibly EEI) are Ramp's current clients or are his former clients. If Agnes Etscheit and PTVI are only former clients, then Ramp would be disqualified from representing the McVeys only if this is the same or a substantially related matter in which the McVeys' interests are materially adverse to the former client's interests "unless the former client consents after consultation;" FSM MRPC R. 1.9(a), or if he uses information relating to the representation to the former client’s disadvantage "except as Rule 1.6 would permit with respect to a client or when the information has become generally known." FSM MRPC R. 1.9(b). This case is not the same as, or substantially related to, any matter that Ramp handled for Agnes Etscheit or PTVI or EEI. The Etscheits did not identify any confidential information that Ramp might have learned from his representation that could be used to their detriment in this case.

However, if any of them is his current client, Ramp cannot represent the McVeys unless "he reasonably believes the representation will not adversely affect the relationship with the other client; and (2) each client consents after consultation." FSM MRPC R. 1.7(a). It is undisputed that Ramp never consulted the Etscheits or sought their consent to represent the McVeys and the Etscheits insist they would not have consented had they been consulted. Nor could Ramp reasonably believe that his representation of the McVeys would not adversely affect his client relationship with an Etscheit party. Thus, if any Etscheit is Ramp's current client then his firm is disqualified from representing the McVeys.

The court would conclude that EEI and PTVI were Ramp's former clients if it were not for Ramp's retention of their files and papers in those matters. At the hearing, the Ramp law firm asserted that it had offered to let the Etscheits make copies of any parts of the files they needed. The court finds this stance disturbing. "Upon termination of representation, a lawyer shall . . . surrender[] papers and property to which the client is entitled . . . ." FSM MRPC R. 1.16(d). "The lawyer may retain papers as security for a fee only to the extent permitted by law." FSM MRPC R. 1.16 cmt. Ramp does not contend that the Etscheits owe him money and that he is retaining the files as security for his fee. He thus has no ground for retaining those files if EEI and PTVI are former clients and they have asked for the files' return.

Therefore, if it has not already done so, the Law Office of Fredrick L. Ramp firm should, within twenty days of entry of this order, turn over to Etscheit Entertainment Inc. and to Pohnpei True Value Inc. those original case files and papers and, for the PTVI collection cases, an accounting for those matters as well. Ramp may retain copies (not the originals) of any part of the files needed for future reference.

Even if Etscheit Entertainment Inc. and Pohnpei True Value Inc. are, or by virtue of returning their files, become, Ramp's former clients, Ramp remains Agnes Etscheit's attorney in Etscheit v. Micah. That is because that case has not come to an end. The Board of Trustees' decision on remand was apparently unsatisfactory to Agnes Etscheit. It is undisputed that Ramp has never personally consulted with her after that decision about what further course of action she might want taken or even whether further possible action was desirable. Nor has Ramp taken steps to formally withdraw from that case. See FSM MRPC R. 1.16(b), 1.16(d); see also Atesom v. Kukkun, 11 FSM Intrm. 400, 402 (Chk. 2003) (if not on the record at the representation's start that counsel's representation is limited, counsel must seek court permission to withdraw when he believes his representation has come to an end; otherwise he remains counsel of record). Merely mailing Agnes Etscheit a copy of the Board of Trustees' decision was not enough to constitute a withdrawal. Something more must be done. She therefore remains his client.⁵

Accordingly, the Ramp law firm is disqualified from representing the McVeys in this case because that would adversely affect his relationship with his earlier, and still current, client, Agnes P. Etscheit. FSM MRPC R. 1.7(a). Ramp shall return the EEI and PTVI files to those parties.

II.  Disqualification of Etscheits' Counsel

On July 22, 2005, the McVeys filed a motion to disqualify the Etscheits' counsel from representing Pohnpei True Value, Inc. The motion's ground is that, in the McVeys' view, the Etscheits' attorneys cannot represent both the corporation (PTVI), and one of its shareholders (Agnes Etscheit) because the corporation and shareholders⁶ have differing interests in this case. The McVeys' fifth cause of action⁷ alleges a derivative action on PTVI's behalf against PTVI director (and shareholder) Agnes P. Etscheit and PTVI directors Ronald Etscheit and Robert Etscheit, Jr. The derivative cause of action seeks damages nominally on the corporation's (and shareholders') behalf based on the claim that the directors have been acting against PTVI's best interests. This motion seeks to disqualify Berman & Sipos only from representing PTVI, not from representing the other Etscheit defendants.

On December 27, 2005, the McVeys filed a supplement to their motion to disqualify, seeking to disqualify both the law firm of Sipos & Berman and the law firm of Berman O'Connor Mann & Shklov from representing any Etscheit defendant in this case. This "supplement" (and the second supplement filed January 10, 2006) are properly considered a separate motion. See McIlrath v. Amaraich, 11 FSM Intrm. 502, 505 & n.3 (App. 2003) ("A thing is what it is regardless of what someone chooses to call

it.").

The "supplementary" motion's ground to disqualify both law firms is that their representation in this case has become directly adverse to Dateline Exports, Inc. ("Dateline"), a current client of the Sipos & Berman law firm, which represents it in a number of collection cases. The court will consider the supplemental motion first since if it is granted then the law firms are disqualified from representing all of the Etscheit parties. If it is denied, the court will then consider the July 22, 2005 motion to only disqualify those firms from representing PTVI.

Michael J. Sipos, of Sipos & Berman, represented, and still represents, Dateline in a number of collection cases. Dateline, a Portland, Oregon firm, exports goods from the U.S. to various businesses in the FSM (and other places in the Pacific). Dateline was a supplier of goods to PTVI when Tim McVey was its manager. It, apparently, now supplies Erine McVey’s Do It Best Hardware instead.

The Etscheits allege that the McVeys committed various acts of wrongdoing, violating their duty of loyalty to PTVI, while Tim McVey was still PTVI manager. Because of the recently uncovered documents and e-mails, the Etscheits now allege that Dateline and its officers and employees assisted and colluded with the McVeys when the McVeys allegedly committed various acts of financial wrongdoing and disloyalty to PTVI that harmed PTVI and that form part of the allegations against the McVeys.

Sipos, Dateline's FSM collection attorney, vigorously pursued this line of discovery and kept Dateline informed of the incriminating evidence being uncovered. Depositions of Dateline employees were scheduled and evidence was sought from its records for use against the McVeys. Since "[a]s advocate, a lawyer zealously asserts the client's position under the rules of the adversary system," FSM MRPC pmbl., the Etscheits had every expectation that Sipos should vigorously pursue their interests along this line. Even if the Etscheits choose not to try to add Dateline as an adverse party in this case,⁸ these allegations about Dateline, if true, could expose it to serious civil and criminal liability.

However, a lawyer cannot "represent a client if the representation of that client will be directly adverse to another client, unless: (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) each client consents after consultation." FSM MRPC R. 1.7(a).

Sipos contends that the supplemental motion to disqualify must be denied because 1) the motion was untimely; 2) the Etscheits lack standing to raise the issue; 3) Dateline had consented to the representation after consultation; and 4) the equities favor not disqualifying Sipos because his disqualification would prejudice the Etscheits while Dateline would suffer no prejudice from not disqualifying him.

A motion to disqualify an attorney generally must be made at the earliest opportunity. See FSM v. Wainit, 12 FSM Intrm. 360, 363 (Chk. 2004) (failure to move to disqualify an attorney at the earliest possible time may constitute a waiver of the objection). The supplemental motion was made not long after Sipos revealed to Dateline the potentially incriminating documents and e-mails that had been uncovered. It was not until then that a conflict arose that could support a disqualification motion. The Model Rules contemplate that a disqualifying conflict may not arise until after representation has been undertaken. "Loyalty is an essential element in the lawyer's relationship to a client. An impermissible

conflict of interest may exist before representation is undertaken, in which event the representation should be declined. If such a conflict arises after representation has been undertaken, the lawyer should withdraw from the representation." FSM MRPC R. 1.7 cmt. The court therefore concludes that, under the circumstances, the supplemental motion was timely.

Sipos contends that the McVeys can’t raise what he calls Dateline’s right. It is generally true that a litigant cannot assert someone else’s rights. FSM v. Udot Municipality, 12 FSM Intrm. 29, 40 (App. 2003); Eighth Kosrae Legislature v. FSM Dev. Bank, 11 FSM Intrm. at 491, 497, 500 (Kos. 2003); College of Micronesia-FSM v. Rosario, 10 FSM Intrm. 175, 188 (Pon. 2001), aff'd, 11 FSM Intrm. 355, 360 (App. 2003). This is not a matter of asserting another's rights but of maintaining the integrity of the judicial process.

Sipos asserts that Dateline consented to his representation of the Etscheits after consultation. In support of this he provided a series of e-mails between himself and a Dateline principal, Tracey Spear. In these e-mails, Sipos kept Dateline informed about his representation of the Etscheits and the case's progress.⁹ Sipos takes Dateline’s lack of objection as a consent. There was, however, no explicit consent by Dateline. Moreover, there was no adversity to Dateline until the Etscheits uncovered the incriminating e-mails between Tim McVey and Dateline and the Etscheits sought to depose Dateline employees about its transactions with McVey while he was PTVI's manager.

After that, two Tracey Spear affidavits, dated November 17, and December 13, 2005 stated that the Sipos & Berman Etscheit representation had become adverse to Dateline and that Dateline had not consented to the allegations being made against it. These were followed by an e-mail from Dateline’s Tracey Spear to Sipos, dated January 20, 2006, that specifically states: "Dateline Exports does not consent to Sipos and Berman or Berman O’Connor representing the Defendants in the True Value litigation." The only conclusion that the court can draw from this is that Dateline does not consent to the Etscheit representation in this case. Because Dateline has not consented, this is an impermissible conflict in violation of FSM MRPC R. 1.7(a).

"'When Rule 1.7(a) applies, it commands that a lawyer "not represent" the clients in question. This means that a lawyer must . . . withdraw if the conflict is discovered after the concurrent representation is undertaken.'" In re Johnson, 84 P.3d 637, 639 (Mont. 2004) (quoting Geoffrey C. Hazard, Jr. & W. William Hodes, the Law of Lawyering § 11.3 (3d ed. 2003)). The lawyer must withdraw from even a long-standing, more remunerative client when that representation becomes adverse to another, newer client even if the law firm terminated its representation of the newer client in an attempt to avoid a conflict as soon as it knew that a conflict would arise.¹⁰ See Santacroce v. Neff, 134 F. Supp. 2d 366, 370 (D.N.J. 2001).

Sipos & Berman ask that if they must withdraw from representing a client that they be permitted to withdraw from representing Dateline, a small client, instead of the Etscheits, a substantial set of long-term clients. They assert that the equities of the situation favor this approach. However, Sipos's

representation of Dateline is not adverse to the Etscheits. But his representation of the Etscheits in this case has become adverse to Dateline. So it is not the Dateline cases he should withdraw from, but this case. Sipos, and Sipos & Berman, therefore must withdraw from representing the Etscheits in this case.

The last question to consider is, now that the Sipos & Berman law firm has been disqualified for a conflict of interest, whether the Berman O'Connor Mann & Shklov law firm must also be disqualified. In construing the Model Rules of Professional Conduct concerning conflicts,

the ABA Standing Committee concluded that for purposes of conflict of interest, if two firms share a common lawyer they will be treated as a single firm for purposes of disqualification. Similarly, for purposes of imputed disqualification under Rule 1.10, the two firms will be considered as one entity. Accordingly, it is incumbent upon the two firms to develop a procedure for screening conflicts of interest which will recognize and respond to the unique circumstance created by sharing an attorney in their respective legal practices.

Vt. Advisory Ethics Opinion 99-5, Nat’l Rptr. on Legal Ethics 2001. Accordingly, the court concludes that, for the purposes of disqualification for conflict of interest and for imputed disqualification, the law firms of Sipos & Berman and Berman O’Connor Mann & Shklov must be considered as one entity. Both law firms therefore must be disqualified from representing the Etscheit parties in this case.

III.  Conclusion

The Etscheits’ motion to disqualify the Law Office of Fredrick L. Ramp as counsel for the McVeys is granted. That law office must return the original files it has to Etscheit Entertainment Inc. and Pohnpei True Value Inc. for the legal matters it handled for them. The Ramp law firm should also take whatever steps are appropriate in regard to Etscheit v. Micah, PCA 164-97 (Pon. S. Ct. Tr.). The Ramp law firm has not been disqualified (and its disqualification was not sought) from representing third-party defendant Kehau Ramp. It remains her attorney of record. The McVeys' supplemental motion to disqualify the law firms of Sipos & Berman and Berman O'Connor Mann & Shklov is granted.

Substitute counsel will have to enter appearances for the McVeys and the Etscheits. Once new counsel have entered their appearance, they shall, within twenty days of their respective appearances, file and serve a notice which of their clients’ pending motions they wish to adopt, which they wish to supplement, and which, if any, they wish to withdraw. The opposing parties shall then have fifteen days to renew or modify their pending responses.

¹ The following filings in Civil Action No. 2005-016 mirror the first two filings in paragraph (2) and were heard with them: the McVeys' Motion to Disqualify, filed August 4, 2005; and the Etscheits’ opposition, filed October 21, 2005.

² Etscheit Entertainment, Inc. is not a party in this case, but apparently Agnes Etscheit and her children are the only shareholders in it.

³ The motion also included a contention that Ramp should be disqualified because his wife, Kehau Ramp, had been PTVI’s bookkeeper and had inside knowledge. The McVeys did not voice this contention at the January 12th hearing. The Etscheits appear to have abandoned this ground because they added Kehau Ramp as a third-party defendant after the motion was filed.

⁴ PTVI also asked that it be given an accounting of the seven cases.

⁵ If Ramp wishes to wind up the Agnes Etscheit representation, he should take the appropriate steps. FSM MRPC R. 1.16(d).

⁶ Agnes P. Etscheit owns 333 shares (66.6%) of PTVI. Erine McVey owns 167 shares (33.4%) of PTVI. They are the only shareholders.

⁷ The McVeys' first four causes of action seek PTVI's dissolution and liquidation and money damages primarily from the individual Etscheits. The sixth seeks to compel the payment of past PTVI dividends from the PTVI's liquidated assets and the seventh seeks PTVI's ejectment from a lot Erine McVey subleased to it.

⁸ Sipos at one point informed Dateline that if he remained both the Etscheits’ and Dateline’s attorney, the Etscheits could not sue Dateline. Sipos Aff. ¶ 16, at 10 (Jan. 24, 2006).

⁹ He also encouraged Dateline to influence or induce the McVeys to settle.

¹⁰ Generally, an attorney cannot choose to withdraw from representing a client because he might then be able to represent another more desirable client. Unified Sewerage Agency v. Jelco Inc., 646 F.2d 1339, 1345 n.4 (9th Cir. 1981) (attorney cannot avoid a conflict and represent a more favored client by turning the disfavored client into a former client); Picker Int'l, Inc. v. Varian Assoc., Inc., 670 F. Supp. 1363, 1365-66 (N.D. Ohio 1987) (attorney cannot drop a client or claim that client is no longer a client in order to represent a better-paying client), aff'd, 869 F.2d 578 (Fed. Cir. 1989).