Yana and Atalig get out of jail—for now

Superior Court Associate Judge Kenneth Govendo ordered yesterday the temporary release of lawyers Reynaldo O. Yana and Antonio M. Atalig from detention until the next hearing on Jan. 16.

Govendo said he will determine then whether Yana and Atalig should continue their detention at the Department of Corrections or be released.

Atalig and Yana have been in detention since March 2008 after finding them in civil contempt in connection with the Malite probate.

Govendo granted the temporary release after Atalig informed the court that their lawyer, Douglas Cushnie, who is off-island, should be allowed to argue.

Atalig and Yana also submitted documents in court to explain how they spent the money they received from the Malite estate. They also submitted their hourly billings.

The judge told Atalig to inform Cushnie to be ready at the Jan. 16 hearing because he will not postpone the proceeding.

Govendo also told Atalig to specify where the money he received from the Malite probate went and to not just state that he gave it to his wife.

Govendo asked Atalig to submit more documents in court.

Yana requested Govendo to issue a written order for their release and give that order to DOC.

Govendo agreed and said: “So they will not come hunting for you.”

Atalig replied: “They’re [DOC] very good in hunting!”

Yana, who was the first to argue, pointed out that the court has not decided yet on the contingency fee issue in this case. Yana also requested copies of the checks he wrote that attorney Stephen Nutting had obtained. Yana said he did not keep track of his checks and that some of the check records were missing from his office.

Yana also brought to the court’s attention the CNMI Supreme Court ruling that the jail term for civil contempt should not exceed six months. “Based on this, we should be released by now,” said Yana.

Govendo said he would review that decision.

Atalig, on the other hand, argued that their submission showing that they should actually be receiving over $2 million in billing rather than $1.1 million was to show the court the number of hours they spent on this case.

Atalig reminded the court that the Malite estate started with $3,000 only but, due to their efforts, it eventually got $3.4 million.

Atalig also stated that under the law they should be entitled to a lawyer, to which Govendo replied: “You two attorneys took $1 million out of the estate and you need an attorney?”

Govendo said he asked the two lawyers to explain in detail how much of the $1.1 million had already been spent so he will know if there is still some money left.

Atalig and Yana said the entire amount has already been spent.

“You were both supposed to manage money. As an attorney, where you’re dealing with your clients, you should be responsible,” Govendo said.

Attorney Nutting, who represents the Malite heir claimants, told Saipan Tribune after the hearing that he sees no problem with the temporary release of the two lawyers.

“The Malite family and myself and Mr. Smith [attorney F. Mathew, who also represents the heir claimants] are all anxious to have this case resolved. I think the judge has given them great leniency in terms of their rights to due process and allowing them to bring a lawyer in finally to try to resolve some of the issues,” Nutting said.

He said yesterday was supposed to be the last day to resolve issues relative to the attorney’s fees that Yana and Atalig received.

“Unfortunately it was not, because of their request for an attorney. Hopefully, next Friday will be the last day we can have this issue resolved as far as the estate is concerned,” Nutting said.

Essentially, Nutting said, Atalig and Yana submitted attorney’s fees in excess of $2 million for working on the Malite estate.

“When you break down the amount of fees, they [Yana and Atalig] supposedly spent thousands of hours in researching land documents. Most of the entries they submitted appear to be very excessive,” he said.

Because of this excessiveness, Nutting said, the Superior Court may deny the fees altogether, pursuant to a CNMI Supreme Court decision.

“My argument is…that the fees are vague [and] excessive and the only way you can prevent those kinds of excessive and vague fees is to deny the fees altogether,” Nutting said.

Atalig believes that “we are getting close to final resolution.”

“You’ve got to understand that these are two to three years down the road. It’s like going back, trying to remember, recall, I think my power of recollection is still there. I’m working on it,” Atalig said.

Atalig said the issue is not returning the money, but determining the reasonableness of the fees as awarded in the civil case.

“We present documents to show that what had been awarded was more than reasonable because you’ve got to start with $3,000. The Malite estate had $3,000 on. When I came to this case, I got it raised to $3.4 million. So the Malite family received an enhancement of the estate. Because of the enhancement, we are entitled to an enhancement fee,” he said.

Atalig pointed out that the contingency fee was based on the Malite family’s decision.

“I understand that there is a prohibition on contingency fees in probate cases but this is not about a prohibition. This was previously distributed in 1997. So because that part of the estate was distributed in 1997, a contingency fee is authorized and the family approved that contingency fee, that’s why we received one third,” he stressed.

In March 2008, Govendo ordered that Yana and Atalig be imprisoned until they return the $1.3 million they got as attorneys’ fees. The amount represents $1,138,500 in the civil case and $150,000 in the first distribution in the probate case—a total of $1,288,500.

Since that order, the judge said, neither attorney has returned the fees in full or in part.