IN its supplemental briefings filed in Superior Court, the defense attorneys of former Gov. Ralph DLG Torres reiterated that the rules mandate every person to take an oath before practicing law.
Judge Pro Tem Arthur Barcinas has placed under advisement Torres’s motion to disqualify the special prosecutor, Assistant Attorney General James Robert Kingman, and the Office of the Attorney General for the unauthorized practice of law.
According to Torres’ defense team, Kingman practiced law in the CNMI without taking the mandatory Commonwealth oath.
Judge Barcinas, during a hearing on Sept. 11, 2023, asked the parties for additional supplementary material to assist the court “in understanding the legal foundations of the parties’ positions.”
On Sept 28, 2023, Kingman filed his supplemental briefing with background material concerning the rules of admission.
On Oct. 4, 2023, Torres’ defense team filed its supplemental briefing, which states that Commonwealth judicial rules are the equivalent of legislative statutes.
“The court should rely only on the literal meaning of the language of Rule 75-2 and not consult other indicia of intent or meaning,” the defense team stated.
It added, “Mr. Torres’ motion on the unauthorized practice of law is anchored on Rule 75-2 of the Northern Mariana Islands Supreme Court Rules. Rule 75-2(c), which, without any qualification, clearly and plainly mandates that ‘every person’ must take the specificized oath before ‘practicing law.’ ”
“There is no dispute that an attorney admitted pro hac vice is a person,” the defense team stated. “Thus, the plain language principle dictates that a pro hac vice attorney must take the oath to practice law in the Commonwealth. The oath requirement is further buttressed by 1 CMC § 3602, which requires full compliance with the Rules of Admission.”
“The prosecution does not — and cannot — contend that, NMI Sup. Ct. R. 75-2 is unambiguous or unclear,” the defense team added.
“The prosecution also does not cite, mention, or discuss Rule 75-2 or any exception to the Rule. Without any legal support, the prosecution asserts that a pro hac vice attorney somehow does not fall into the Rule 75-2 category of ‘every person’ who must take the oath prior to practicing law. However, in order to establish such an assertion, Commonwealth law requires that the prosecution produce evidence that, despite Rule’s 75-2 plain language, either a contrary meaning was intended, or the plain language interpretation defies common sense or leads to absurd results.”
According to the defense team, “the mandated oath requires an attorney to swear: to defend the Covenant, the NMI Constitution, and its laws; and to discharge his/ her duties faithfully and honestly before the Commonwealth courts. NMI Sup. Ct. R. 75-2(c).”
“There is no circumstance where requiring a pro hac vice attorney to take such an oath would defy common sense or lead to an absurd result, especially when all other attorneys practicing law in the Commonwealth must do so,” the defense team stated. “The prosecution’s supplemental briefing instead attempts to carve out an exception to Rule 75-2 by relying on the provisions governing the application for pro hac vice admission, Rule 73-1 of the NMI Supreme Court Rules. However, none of the provisions of Rule 73-1 excuse a pro hac vice attorney from taking the attorney oath pursuant to Rule 75-2(c). Based on a plain language interpretation of Rule 75-2(c), taking the oath is a mandatory step for every person who wants to practice law in the Commonwealth, regardless of the basis of admission.”
During the hearing, Judge Barcinas asked whether all pro hac vice attorneys who had not taken the oath were engaged in the unauthorized practice of law.
In response, the defense attorneys said, “Mr. Torres is only concerned about the unauthorized practice of law in this case. Nevertheless, the answer to this inquiry is ‘Yes.’ ”
The defense team also stated that “the unauthorized practice of law has a two-year statute of limitations for anyone that has not had a prior conviction for the offense. The decision of whether to take any action on this for the limited number of persons facing any exposure based on the two-year statute of limitations will be left to the prosecutorial discretion of the Office of Attorney General.”
Citing a previous ruling, the defense team said, “It seems that the OAG would have a conflict in making any such determination with respect to an Assistant Attorney General, Special Prosecutor, or any other attorney performing legal services on its behalf.”
“Such a circumstance would necessitate a review and determination by the Office of the Public Auditor, or a special prosecutor appointed by the judiciary to determine whether any legal action should be initiated,” the defense team added.
On April 8, 2022, the OAG filed a criminal case against the former governor, alleging 12 counts of misconduct in public office and one count of theft relating to the issuance of airline tickets for business class, first class, or other premium class travel for himself and/or Diann T. Torres, his wife.
The case also alleged one count of contempt for failure to appear in compliance with a legislative subpoena.
The former governor has denied the charges.
Torres is represented by attorneys Viola Alepuyo, Anthony Aguon, Victorino Torres and Matthew Holley.
