7 FSM Intrm. 414-416

CHUUK STATE SUPREME COURT

TRIAL DIVISION

Cite as Oster v. Bisalen,

7 FSM Intrm. 414 (Chk. S. Ct. Tr. 1996)

[7 FSM Intrm. 414]

KARUO OSTER, TONY ROSOKOW, ERMINO FRITZ,

ERIANO ERAM, KERETA DEREAS, RYSANG SIMINA

and OSUPWANG RIKAT, on behalf of themselves

and all other persons similarly situated,

Plaintiffs,

vs.

WILIPINAT BISALEN, in his official capacity as

Director of Treasury, and CHUUK STATE,

Defendants.

CSSC-CA-NO. 267-95

ORDER

Richard H. Benson

Special Trial Court Justice

Decided: March 14, 1996

APPEARANCES:

For the Plaintiffs: Midasy Aisek

Micronesian Legal Services Corporation

P.O. Box D

Weno, Chuuk FM 96942

[7 FSM Intrm. 415]

For the Defendants: Kachuo Eko

Assistant Attorney General

Office of the Chuuk Attorney General

P.O. Box 189

Weno, Chuuk FM 96942

* * * *

HEADNOTE

Attorney, Trial Counselor and Client ) Disqualification of Counsel

A trial counselor who is a member of a plaintiff class that is seeking money damages from the state has a conflict and cannot represent the state and will be allowed to withdraw. Oster v. Bisalen, 7 FSM Intrm. 414, 415 (Chk. S. Ct. Tr. 1996).

* * * *

COURT'S OPINION

RICHARD H. BENSON, Special Trial Court Justice:

This case came before me on the motion of Mr. Kachuo Eko to withdraw as counsel for the defendants. The plaintiffs filed their response to the motion. On March 4, 1996, a conference on the record was held with the parties present, and the motion was granted.

The plaintiffs in this case allege that they are employees of Chuuk State who have had allotments deducted from their paychecks by the defendants, but the defendants have failed to pay the amounts so deducted to the creditor allotees. The complaint asks the court to certify as a class all other Chuuk State employees similarly situated.

Mr. Eko is a member of the class)that is, he is a Chuuk State employee who has had allotments taken out of his pay. Those deductions, however, have not been delivered by the State to his creditors.

Three of the named plaintiffs are prosecuting attorneys in the same office as Mr. Eko, the office of the Attorney General of Chuuk State.

The Model Code of Professional Responsibility governs the ethical conduct of practitioners appearing before this court. Truk State Bar R. 13(a). A lawyer may refuse to represent a client when his financial interest may impair his independent professional judgment. MCPR DR 5-101(A). Such representation may be undertaken if the client consents after full disclosure by the lawyer of his interest in the case. Id. Whether this was done or could be done was not presented to me.

The problem of Mr. Eko representing interests of the defendants which directly conflict with the claims of the three members of his law firm presents an ethical problem which cannot be consented to by the client. It would be unethical for him to do so. MCPR DR 5-101(A) & (B); ABA Opinion 296 (1959). Mr. Eko's withdrawal is therefore proper. MCPR DR 2-110(B)(2).

It is therefore ordered that Kachuo Eko withdraw as lawyer for the defendants.

It is further ordered that the defendants employ counsel who, by March 25, 1996, shall file and serve his or her notice of appearance.

[7 FSM Intrm. 416]

It is further ordered that the answer filed by Mr. Eko on January 24, 1996 is stricken.


	CHUUK STATE SUPREME COURT TRIAL DIVISION Cite as Oster v. Bisalen, 7 FSM Intrm. 414 (Chk. S. Ct. Tr. 1996) [7 FSM Intrm. 414] KARUO OSTER, TONY ROSOKOW, ERMINO FRITZ, ERIANO ERAM, KERETA DEREAS, RYSANG SIMINA and OSUPWANG RIKAT, on behalf of themselves and all other persons similarly situated, Plaintiffs, vs. WILIPINAT BISALEN, in his official capacity as Director of Treasury, and CHUUK STATE, Defendants. CSSC-CA-NO. 267-95 ORDER Richard H. Benson Special Trial Court Justice Decided: March 14, 1996 APPEARANCES: For the Plaintiffs: Midasy Aisek Micronesian Legal Services Corporation P.O. Box D Weno, Chuuk FM 96942 [7 FSM Intrm. 415] For the Defendants: Kachuo Eko Assistant Attorney General Office of the Chuuk Attorney General P.O. Box 189 Weno, Chuuk FM 96942 * * * * HEADNOTE Attorney, Trial Counselor and Client ) Disqualification of Counsel A trial counselor who is a member of a plaintiff class that is seeking money damages from the state has a conflict and cannot represent the state and will be allowed to withdraw. Oster v. Bisalen, 7 FSM Intrm. 414, 415 (Chk. S. Ct. Tr. 1996). * * * * COURT'S OPINION RICHARD H. BENSON, Special Trial Court Justice: This case came before me on the motion of Mr. Kachuo Eko to withdraw as counsel for the defendants. The plaintiffs filed their response to the motion. On March 4, 1996, a conference on the record was held with the parties present, and the motion was granted. The plaintiffs in this case allege that they are employees of Chuuk State who have had allotments deducted from their paychecks by the defendants, but the defendants have failed to pay the amounts so deducted to the creditor allotees. The complaint asks the court to certify as a class all other Chuuk State employees similarly situated. Mr. Eko is a member of the class)that is, he is a Chuuk State employee who has had allotments taken out of his pay. Those deductions, however, have not been delivered by the State to his creditors. Three of the named plaintiffs are prosecuting attorneys in the same office as Mr. Eko, the office of the Attorney General of Chuuk State. The Model Code of Professional Responsibility governs the ethical conduct of practitioners appearing before this court. Truk State Bar R. 13(a). A lawyer may refuse to represent a client when his financial interest may impair his independent professional judgment. MCPR DR 5-101(A). Such representation may be undertaken if the client consents after full disclosure by the lawyer of his interest in the case. Id. Whether this was done or could be done was not presented to me. The problem of Mr. Eko representing interests of the defendants which directly conflict with the claims of the three members of his law firm presents an ethical problem which cannot be consented to by the client. It would be unethical for him to do so. MCPR DR 5-101(A) & (B); ABA Opinion 296 (1959). Mr. Eko's withdrawal is therefore proper. MCPR DR 2-110(B)(2). It is therefore ordered that Kachuo Eko withdraw as lawyer for the defendants. It is further ordered that the defendants employ counsel who, by March 25, 1996, shall file and serve his or her notice of appearance. [7 FSM Intrm. 416] It is further ordered that the answer filed by Mr. Eko on January 24, 1996 is stricken.