Cite as Office of the Public Defender v. FSM Supreme Court ,
4 FSM Intrm. 307 (App. 1990)

[4 FSM Intrm. 307]




Real Party in Interest.



Before Richard H. Benson
Associate Justice
FSM Supreme Court
July 12, 1990
For the Petitioner:          Michael K. Powell
(Office of the Public       Office of the Public Defender
Defender)                       FSM National Government
                                         Palikir, Pohnpei  FM 96941
For the Respondent:      David Webster
(FSM Supreme Court)   Office of the Attorney General
                                          FSM National Government
                                          Palikir, Pohnpei  FM  96941
For the Respondent:       Joses R. Gallen
(Pohnpei State)               State Attorney
                                          Pohnpei State Government
                                          Kolonia, Pohnpei  96941
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     The writ of mandamus is an extraordinary remedy issued to require a public official to carry out a clear non-discretionary duty.  Office of the Public Defender v. FSM Supreme Court, 4 FSM Intrm. 307, 309 (App. 1990).

[4 FSM Intrm. 308]

Attorney - Trial Counselor and Client
     The imputed disqualification provision of Rule 1.10(a) of the FSM Model Rules of Professional Conduct is not a per se rule and where the other attorneys associated with the attorney who seeks disqualification are able to give full loyalty to the client it is proper for the court to find that the disqualifying condition is not imputed to others.  Office of the Public Defender v. FSM Supreme Court, 4 FSM Intrm. 307, 309 (App. 1990).
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RICHARD H. BENSON, Associate Justice:
     On July 6, 1990 I denied the petitioner's application for a stay.  This opinion briefly sets out the reasons for the denial.

     The petitioner seeks a writ of mandamus from this court requiring the judge of the trial court "to appoint counsel other than the Office of the Public Defender" to represent Manasa Edgar.

     Manasa Edgar, the defendant in FSM Criminal Case No. 1990-503, is accused of murder.  The public defender moved pursuant to Rule 1.7(b) of the FSM Model Rules of Professional Conduct, to be relieved as counsel for the defendant on the ground that he had adopted the son of the nephew of the victim. The public defender further moved, pursuant to Rule 1.10(a) of the Model Rules, that the entire lawyer staff of the public defender's office be relieved on the ground that his conflict is imputed to the others.

     The trial court granted the motion of the public defender to withdraw, and denied the motion as to other lawyers, finding the conflict personal and not extending to the other lawyers.

     The petitioner then applied to this court on June 15, 1990 for a writ of mandamus which would direct the trial court to appoint a lawyer for Manasa Edgar other than one from the office of the public defender.

     The trial court set June 25, 1990 as the date by which pretrial motions must be filed and required responses by July 6, 1990.  The court scheduled a pretrial conference for August 1, 1990 and trial for August 8, 1990.

     There is no question that the motion for withdrawal was properly before the trial court.  No one questions the trial court's jurisdiction to decide the motion.

[4 FSM Intrm. 309]

     The writ of mandamus, which the petitioner seeks, is an extraordinary remedy.  It is issued to require a public official to carry out a clear non-discretionary duty.  In re Raitoun, 1 FSM Intrm. 561 (App. 1984).

     Rule 1.10(a) of the Model Rules under which the petitioner seeks relief reads, "While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 ...."

     The language of this rule appears to leave no discretion. However the courts of the United States when confronted with an issue of imputed disqualification do not adopt a per se rule, but examine the circumstances presented.  It is submitted to the discretion of the court.  Akerly v. Red Barn System, Inc., 551 F.2d 539, 544 (3d Cir. 1977); People v. Garcia, 698 P.2d 801, 806 (Colo. 1955).

     With this standard I find the trial court's decision fully warranted.  The proposed disqualification presents no issue of confidentiality, only that of loyalty. There is no showing that other lawyers of the public defender's staff would not be able to give full loyalty to the client.  I note that even the disqualification of the public defender himself presented a close issue to the trial court.  Cf. Akerly, 551 F.2d at 543, 544.
      During the hearing the trial court appeared disinclined to allow withdrawal. Later his written order permitted withdrawal.
     From the foregoing I conclude that a stay is not warranted:

     1.  I see no substantial possibility that a full panel would grant the writ;

     2.  There has been no showing at all of irreparable harm should the stay not be granted; and

     3.  No equities are presented which militate in favor of a stay.

     This order denying the stay is issued under Rule 27(c) of the Rules of Appellate Procedure.  If the petitioner desires a determination of his application for a writ I suggest he promptly request an accelerated briefing and hearing schedule.  If this is not done, I will assume the issue raised is not being pursued by means of the petition for a writ.

     The application for a stay is denied.

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