Superior Court Associate Judge David A. Wiseman has granted the Office of the Attorney General’s motion to disqualify attorney Brien Sers Nicholas as counsel for former attorney general Edward T. Buckingham, and denied Buckingham’s cross-motion to disqualify Office of the Public Auditor legal counsel George L. Hasselback as counsel for the CNMI government in the criminal case against him.
In an order issued Friday, Wiseman determined that there is a significant risk that the representation of Buckingham would be materially limited by Nicholas’ representation of his former clients, the officers involved in the case.
Nicholas undertook representation of Buckingham on Aug. 24, 2012, and then represented law enforcement officers Jermaine Nekaifes, Myron Laniyo, and Stanley Patris before the 17TH CNMI House of Representatives Special Committee on Impeachment.
Even if Nicholas had obtained the consent of all parties, Wiseman said this is a type of a conflict that cannot be waived because Model Rule of Professional Conduct 1.7(b)(3) prohibits a lawyer from representing adverse parties in litigation.
On Buckingham’s bid to have Hasselback disqualified, Wiseman said that Attorney General Joey P. San Nicolas recently appointed Hasselback to prosecute the case against Buckingham and so the constitutional issues Buckingham raised are moot.
Second, Wiseman said, Public Auditor Mike Pai was not required to recuse himself from this matter, and therefore Hasselback is not required to recuse himself either.
Pai voluntarily recused himself to avoid the appearance of impropriety for OPA.
The Office of the Public Auditor filed the criminal charges against Buckingham in connection with an alleged violation of election laws and illegal award of a sole-source contract, among others.
An FBI special agent served Buckingham with the penal summons at the Francisco C. Ada-Saipan International Airport shortly before he and his wife left Saipan on a Delta Airlines flight to Narita, Japan on Aug. 4, 2012.
The OAG moved to disqualify Nicholas as counsel for Buckingham because he allegedly undertook the representation of multiple persons with a conflict of interest, which constitutes a presumed breach of the duties of loyalty to these individuals.
Buckingham opposed the motion and cross-moved to disqualify Hasselback because he is allegedly conflicted twice over as a prosecutor and will be called as a witness.
Wiseman held the hearing on the motions on July 16, 2013.
In his ruling on Friday, Wiseman said the government may call the officers, including Nekaifes, as witnesses for the prosecution against Buckingham.
“This would create an actual conflict because the officers would then be subject to cross-examination by Sers Nicholas,” Wiseman said.
Wiseman said that although the officers are not co-defendants, Nekaifes is being charged under a different case number with charges arising out of the same case.
Wiseman said Nicholas represented the officers at the Impeachment Committee and thereafter terminated representation of them.
He said Nicholas continued representation of Buckingham in the same or a substantially related matter.
“It is undisputed by Sers Nicholas that the interests of Buckingham and the officers are materially adverse,” he said.
Wiseman said that Nicholas may not represent Buckingham because this matter is substantially related to the matter with Nekaifes, Buckingham’s interests are materially adverse to Nekaifes’s interests, and Nicholas has not acquired the written informed consent of his former client.
On Hasselback’s disqualification, Wiseman said that Pai delegated a measure of his powers as the public auditor to Hasselback to act in his stead and effectively stand in his shoes as the public auditor.
Wiseman said the law authorizes such delegation and Buckingham has not offered any legal authority as to why Pai’s delegation would be legally invalid.
“The court therefore finds no conflict based on Pai’s recusal,” the judge said.
Sers Nicholas had argued that Hasselback is conflicted because he solicited the aid of the Attorney General’s Investigation Unit after the court disqualified the OAG, thereby imputing the conflict to Hasselback.
But Wiseman noted that there is no evidence that Hasselback was exposed to a conflict when he contacted the AGIU.
“Therefore, the court finds that Hasselback’s contact with the AGIU does not require his disqualification from this case,” he said.
As to the issue that Hasselback is a necessary witness, Wiseman said the testimony regarding the OPA investigation may be obtained from other investigators at the OPA.
“Accordingly, Hasselback’s participation in the investigation does not require his disqualification from this case,” he said.