FSM 6 Intrm. 026-027

THE SUPREME COURT OF THE

FEDERATED STATES OF MICRONESIA

Cite as In re Extradition of Jano ,

6 FSM Intrm. 26 (App. 1993)

[6 FSM Intrm. 26]

In re the Extradition of MARTIN JANO.

APPEAL CASE NO. P1-1993

ORDER

Richard H. Benson

Associate Justice

Decided: February 25, 1993

APPEARANCES:

For the Appellant: Marvin Hamilton, Esq.

Office of the Public Defender

P.O. Box 425

Colonia, Yap FM 96943

For the Appellee: Michael Brady, Esq.

Assistant Attorney General

Office of the FSM Attorney General

P.O. Box PS-105

Palikir, Pohnpei FM 96941

* * * *

HEADNOTES

Attorney, Trial Counsellor and Client; Extradition

Certification of extraditability is an adversarial proceeding. An advocate in an adversarial proceeding is expected to be zealous. In re Extradition of Jano, 6 FSM Intrm. 26, 27 (App. 1993).

Attorney, Trial Counsellor and Client

The rules, MRPC 1.10, for vicarious disqualification of attorneys in the same law firm do not apply to government lawyers who are governed by MRPC 1.11(c). MRPC 1.11 does not impute the disqualification of one member of a government office to the other members. In re Extradition of Jano, 6 FSM Intrm. 26, 27 (App. 1993).

* * * *

[6 FSM Intrm. 27]

COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

The petitioner moved to disqualify the FSM Attorney General's office from appearing in these proceedings. That motion was denied by this court's order of February 12, 1993. By motion filed February 15, 1993, the appellant requested for reconsideration.

In his motion for reconsideration Mr. Jano asserts that Mr. Brady has acted with considerable discretion to prejudice him. He contends that "Mr. Brady has assumed a very aggressive and completely adversarial posture." Appellant's Motion to Reconsider at 2. He then lists as examples of this Mr. Brady's initial motion to seal the record, and his motion to disqualify or certify the Public Defender's Office, and six instances where Mr. Brady opposed the appellant's motions or legal defense maneuvers.

Certification of extraditability is an adversarial proceeding. That an adversary in an adversarial proceeding takes an adversarial posture is to be expected. It is not of itself grounds for disqualification. Furthermore, it is expected that an advocate be zealous. The acts cited are positions taken by an advocate. They are not reflective of prosecutorial discretion. That discretion resides in Maryland, not in the FSM Attorney General's Office.

The appellant additionally cites MRPC 1.10 as requiring the disqualification of the Attorney General's Office. The petitioner argues that his outstanding civil suit against Mr. Juergens, the Chief of Litigation in the Attorney General's Office, Jano v. Juergens et al., Civ. No. 1991-061, disqualifies not only Mr. Juergens but also all other members of the Attorney General's Office pursuant to MRPC 1.10.

Assuming, without deciding, that Mr. Juergens is disqualified, the petitioner's reliance on MRPC 1.10 is misplaced. MRPC 1.10, by its terms, applies to attorneys "in a firm." The Official Comment to Rule 1.10 defines "firm" as "includ[ing] lawyers in a private firm, and lawyers employed in the legal department of a corporation or other organization, or in a legal services organization." It does not include government attorneys. The vicarious disqualification of government attorneys is guided by MRPC 1.11. There is nothing in MRPC 1.11 that would impute any disqualification of Mr. Juergens to Mr. Brady. MRPC 1.11 does not impute the disqualification from one member of a government office to the others.1 The Official Comment states that "[p]aragraph (c) does not disqualify other lawyers in the agency with which the lawyer in question has become associated."

The motion for reconsideration is denied.

* * * *

Footnote:

1. See, e.g., "[T]he ethics rules distinguish between private law firms and government law offices for vicarious disqualification. Private law firms are guided by Rule 1.10. . . . Unlike Rule 1.10, Rule 1.11(c) does not disqualify the remaining attorneys in a government office when one of its members is prevented from participating in the matter." 6 ABA/BNA Law. Man. Prof. Conduct 345 (1990) (citing Turbin v. Arizona Super. Ct., No. 1 CA-SA 90-044, (Ariz. Ct. App. Oct. 3, 1990)).


	THE SUPREME COURT OF THE FEDERATED STATES OF MICRONESIA Cite as In re Extradition of Jano , 6 FSM Intrm. 26 (App. 1993) [6 FSM Intrm. 26] In re the Extradition of MARTIN JANO. APPEAL CASE NO. P1-1993 ORDER Richard H. Benson Associate Justice Decided: February 25, 1993 APPEARANCES: For the Appellant: Marvin Hamilton, Esq. Office of the Public Defender P.O. Box 425 Colonia, Yap FM 96943 For the Appellee: Michael Brady, Esq. Assistant Attorney General Office of the FSM Attorney General P.O. Box PS-105 Palikir, Pohnpei FM 96941 * * * * HEADNOTES Attorney, Trial Counsellor and Client; Extradition Certification of extraditability is an adversarial proceeding. An advocate in an adversarial proceeding is expected to be zealous. In re Extradition of Jano, 6 FSM Intrm. 26, 27 (App. 1993). Attorney, Trial Counsellor and Client The rules, MRPC 1.10, for vicarious disqualification of attorneys in the same law firm do not apply to government lawyers who are governed by MRPC 1.11(c). MRPC 1.11 does not impute the disqualification of one member of a government office to the other members. In re Extradition of Jano, 6 FSM Intrm. 26, 27 (App. 1993). * * * * [6 FSM Intrm. 27] COURT'S OPINION RICHARD H. BENSON, Associate Justice: The petitioner moved to disqualify the FSM Attorney General's office from appearing in these proceedings. That motion was denied by this court's order of February 12, 1993. By motion filed February 15, 1993, the appellant requested for reconsideration. In his motion for reconsideration Mr. Jano asserts that Mr. Brady has acted with considerable discretion to prejudice him. He contends that "Mr. Brady has assumed a very aggressive and completely adversarial posture." Appellant's Motion to Reconsider at 2. He then lists as examples of this Mr. Brady's initial motion to seal the record, and his motion to disqualify or certify the Public Defender's Office, and six instances where Mr. Brady opposed the appellant's motions or legal defense maneuvers. Certification of extraditability is an adversarial proceeding. That an adversary in an adversarial proceeding takes an adversarial posture is to be expected. It is not of itself grounds for disqualification. Furthermore, it is expected that an advocate be zealous. The acts cited are positions taken by an advocate. They are not reflective of prosecutorial discretion. That discretion resides in Maryland, not in the FSM Attorney General's Office. The appellant additionally cites MRPC 1.10 as requiring the disqualification of the Attorney General's Office. The petitioner argues that his outstanding civil suit against Mr. Juergens, the Chief of Litigation in the Attorney General's Office, Jano v. Juergens et al., Civ. No. 1991-061, disqualifies not only Mr. Juergens but also all other members of the Attorney General's Office pursuant to MRPC 1.10. Assuming, without deciding, that Mr. Juergens is disqualified, the petitioner's reliance on MRPC 1.10 is misplaced. MRPC 1.10, by its terms, applies to attorneys "in a firm." The Official Comment to Rule 1.10 defines "firm" as "includ[ing] lawyers in a private firm, and lawyers employed in the legal department of a corporation or other organization, or in a legal services organization." It does not include government attorneys. The vicarious disqualification of government attorneys is guided by MRPC 1.11. There is nothing in MRPC 1.11 that would impute any disqualification of Mr. Juergens to Mr. Brady. MRPC 1.11 does not impute the disqualification from one member of a government office to the others.1 The Official Comment states that "[p]aragraph (c) does not disqualify other lawyers in the agency with which the lawyer in question has become associated." The motion for reconsideration is denied. * * * * Footnote: 1. See, e.g., "[T]he ethics rules distinguish between private law firms and government law offices for vicarious disqualification. Private law firms are guided by Rule 1.10. . . . Unlike Rule 1.10, Rule 1.11(c) does not disqualify the remaining attorneys in a government office when one of its members is prevented from participating in the matter." 6 ABA/BNA Law. Man. Prof. Conduct 345 (1990) (citing Turbin v. Arizona Super. Ct., No. 1 CA-SA 90-044, (Ariz. Ct. App. Oct. 3, 1990)).