THE Office of the Attorney General’s request for the deposition of former Gov. Ralph DLG. Torres, a former client of the OAG, violates the Model Rules of Professional Conduct, according to Torres’ defense team.
Torres, represented by attorneys Viola Alepuyo, Matthew Holley, Victorino Torres, and Anthony Aguon, opposes the OAG’s motion for deposition and has asked the Superior Court to deny it.
The motion for deposition, filed by Chief Solicitor J. Robert Glass Jr., is in connection with Torres’ lawsuit against the Department of Finance relating to the contract of special prosecutor James Robert Kingman.
The motion for deposition seeks information on how much it cost CNMI taxpayers to pay for four defense attorneys so that the then-governor could avoid complying with a legislative subpoena.
The former governor is challenging the Department of Finance’s refusal to issue a declaratory order on the validity of an employment contract between the OAG and Kingman, an off-island attorney.
According to the defense team, the OAG’s motion for a deposition lacks foundation in Commonwealth law.
“There is written law in the Commonwealth that governs the judicial review of administrative appeals, including the evidence and record that this Court is able to consider. In the CNMI, the administrative procedure of Commonwealth agencies, which includes judicial review of an agency decision, is governed by the Administrative Procedures Act or APA. These rules are not frivolous, and the OAG does not contend that the rules are frivolous. Therefore, the OAG’s reliance on a case from California or any other jurisdiction to support its notion of taking a deposition in an administrative judicial review case is irrelevant, unavailing, and meaningless to the instant matter,” the defense team stated.
It added that the OAG’s motion for a deposition conflicts with Rule 6 of the Commonwealth Rules of Procedure for Administrative Appeals.
The OAG does not address how its motion complies with Rule 6(a), and further does not contend or allege that any procedural irregularities occurred in the matter before the Department of Finance, the defense team stated.
The “OAG’s reliance on the Commonwealth Rules of Civil Procedure to try and introduce evidence that is outside of the agency record is clearly in conflict with NMI R. P. Admin. App. 6(a), and is therefore improper. Because it ignores the Rule 6(a) limitation, it is no surprise that the OAG motion also does not proffer any explanation on why its motion for deposition does not conflict with NMI R. P. Admin. App. 6(a),” the defense team added.
Moreover, the defense team said, “the OAG does not reasonably or logically articulate how the ‘unclean hands’ defense has any relevance to the negotiation, execution, and payment of the OAG special prosecutor contract.”
“Whatever knowledge that Mr. Torres may have concerning procurement regulations, along with whatever facts and circumstances that he may know of concerning other government contracts, is totally irrelevant to whether the OAG’s special prosecutor contract complied with the CNMI procurement regulations. Thus, it is quite puzzling how Mr. Torres has ‘unclean hands’ in the OAG’s failure to comply with procurement rules when it procured the special prosecutor contract,” the defense team stated.
“The NMI Rules of Attorney Discipline and Procedure is one such applicable rule that applies to all attorneys licensed to practice in the Commonwealth, including the OAG,” the defense team added.
“Mr. Torres has served as CNMI Governor and is a former client of the OAG. It is undisputed that the OAG is legal counsel to the Commonwealth Governor as a matter of law,” the defense team stated.
To the extent that the OAG contends that the “unclean hands” arose from Torres’ conduct when he was CNMI governor, then the OAG was Torres’ legal counsel at the time, his defense team stated.
“As Governor, Mr. Torres also could not utilize outside counsel without the OAG’s consent and approval. At a minimum then, a substantial relationship exists between the OAG and Mr. Torres with regards to legal representation and the procurement of it. Since Mr. Torres is a former client of the OAG, their relationship is governed by, and the OAG must comply with, MRPC Rule 1.9,” the defense team added.
“Nevertheless, the OAG has failed to provide Mr. Torres with any of the safeguards of MRPC Rule 1.9 provided to former clients. To date, the OAG has not conferred with Mr. Torres about this matter or its proposed deposition and has not gotten Mr. Torres’s consent. The OAG has also failed to proffer any explanation on how deposing a former client for conduct that occurred while the OAG was still that client’s legal counsel is not a violation of MRPC Rule 1.9,” the defense team added.
Former Gov. Torres filed a petition in court requesting a judicial review of a May 17, 2023 final administrative order by the secretary of Finance who stated that the department had no authority to issue a ruling and declare that the special prosecutor’s contract executed by the Office of the AG in connection with Commonwealth v Torres, Criminal Action No. 22-0050 was invalid.
In his judicial review petition filed on June 15, 2023, former Gov. Torres named the Finance Department and the AG’s office as respondents.
The nine-page petition asked the court to vacate or set aside the final agency decision, saying that “it is arbitrary, capricious, an abuse of discretion and/or contrary to law.”
According to the petition, the special prosecutor’s contract does not comply with the procurement regulations.
Kingman was initially hired by the AG’s office as a special prosecutor in its misconduct-in-office case against the former governor pertaining to first-class travel.
On June 20, 2023, Gov. Arnold I. Palacios informed the Legislature that he had certified and approved Kingman’s employment as an assistant attorney general with an annual salary of $85,000.
Five days later, the AG’s office announced that Kingman will head a task force that will investigate and prosecute government corruption, white collar and financial crimes.
Finance and the OAG have filed motions to dismiss the former governor’s petition for judicial review.
For their part, Superior Court Presiding Judge Roberto C. Naraja, Associate Judges Teresa Kim-Tenorio, Wesley Bogdan, Joseph N. Camacho and Kenneth L. Govendo have recused themselves from the lawsuit for varied conflict of interest reasons.
As of Sunday afternoon, the local Supreme Court had not appointed a judge pro tempore for the case.
