James Robert Kingman
THE defense team of former Gov. Ralph DLG Torres said Special Prosecutor James Robert Kingman has practiced law in the CNMI without taking the mandatory Commonwealth oath.
Attorneys Viola Alepuyo, Anthony Aguon, Victorino Torres, and Matthew Holley are also asking the Superior Court to dismiss the Office of the Attorney General’s case against the former governor due to unauthorized practice of law.
For the same reason, the defense alternatively asked that court to disqualify the OAG from prosecuting the case.
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.
According to his defense team’s 15-page motion to dismiss filed on Thursday, NMI Sup. Ct. R. 75-2(c) mandates in clear and plain language that every person must take the attorney oath prior to practicing law in the Commonwealth.
“Mr. Torres is unaware of any record or evidence showing that Mr. Kingman took the oath required by NMI Sup. Ct. R. 75-2(c) between March 6, 2023 and July 13, 2023. If he had taken the oath prior to July 13, 2023, then it would not have been necessary for him to be sworn in and sign another oath again on July 13, 2023, when he became an Assistant Attorney General,” the defense team stated.
“This means that each and every act taken by Mr. Kingman between March 6, 2023 and July 13, 2023 as Special Prosecutor for this case constitutes an unauthorized practice of law,” the defense added. “The unauthorized practice of law justifies dismissal of this case with prejudice.”
According to the defense team, “If the court determines that the scope and scale of the unauthorized practice of law does not warrant the sanction of this case’s dismissal with prejudice, then the court should disqualify the OAG from this case, or at a minimum disqualify Kingman and Assistant Attorney General J. Robert Glass Jr. from prosecuting this case and any other case or charge against Mr. Torres arising from the same temporal period and/or the facts and circumstances as this case.”
Mandatory
The defense attorneys reiterated that it is a mandatory requirement in the Commonwealth to first take an oath in order to practice law.
“Mr. Kingman may have been admitted on March 6, 2023, but he apparently did not take the oath mandated by NMI Sup. Ct. R. 75-2(c) until July 13, 2023, after he was hired as an Assistant Attorney General. The record in this case clearly shows that between March 6, 2023 and July 13, 2023, Mr. Kingman appeared before this court numerous times as attorney for the Commonwealth. In his purported capacity as a Special Prosecutor, Mr. Kingman filed various motions, memoranda, and other documents on behalf of his ‘client,’ the Commonwealth,” the defense team stated.
“Mr. Kingman has filed several memoranda and other documents as attorney of record between March 6, 2023 and July 13, 2023. However, Mr. Kingman never affixed his bar identification number after his name on any such filing as required by the NMI Supreme Court. This strongly suggests that Mr. Kingman had not been sworn in,” the defense team stated.
“This is also underscored by the fact that Mr. Kingman now has a temporary number which he now affixes to his filings. If he had previously received a temporary number as a Special Prosecutor, it would not have been necessary to issue him a temporary number upon his hiring as an Assistant Attorney General. Since there is no evidence that Mr. Kingman was sworn in between March 6, 2023 and July 13, 2023, then he was apparently engaging in the unauthorized practice of law and the OAG was allowing him to do so,” the defense team added.
Sanctions
“To be clear, and to avoid any misunderstanding, this motion does not seek the imposition of any sanction under the disciplinary rules, or which encumbers the law license of any attorney. Instead, this motion seeks the imposition of sanctions pursuant to this court’s inherent power to regulate matters before it as well as the conduct of Attorneys and parties appearing before it.”
According to the defense team, “The nature of the misconduct, the cumulative weight of the violations, and the harm to the public and the profession, combined with the recidivist conduct, strongly suggests a very stern sanction is warranted to ensure there is no future recidivism and to deter others from playing ‘fast and loose’ with the privilege of practicing law in the Commonwealth.”
The defense team “suggests the sanction of dismissal with prejudice should be imposed in this case. Although it may be harsh and drastic, the sanction of dismissal with prejudice here is appropriate.”
The defense team added, “If the OAG was truly motivated to ensure that its office is in compliance, then perhaps this circumstance with Mr. Kingman would not exist.”
Fishing expedition
“The unauthorized practice of law allowed by the OAG resulted in the prosecution misusing a Criminal Rule 17 trial subpoena in an effort to conduct a flagrant ‘fishing expedition,’” the defense team stated.
“This improper conduct by an attorney not authorized to practice law also resulted in publicly exposing private and confidential financial information, i.e., the full account number of Mr. Torres’s account with the Bank of Guam. This necessitated Mr. Torres having to close his existing Bank of Guam account and open a new account. Such conduct not only violated Mr. Torres’s constitutional right to privacy, but it also constituted a criminal offense perpetrated against Mr. Torres.”
Moreover, the defense team stated that during “this same time frame, Mr. Kingman moved to amend the Information in this case to increase the charges against Mr. Torres [threefold], from 13 counts to 38 counts and included counts that were entirely irrelevant to those initially brought by the OAG. The prosecution now realizes that the motion was improper and has moved to withdraw the motion to amend.”
The defense team said this “circumstance has prejudiced Mr. Torres because it has already ‘poisoned’ the jury pool by insinuating that Mr. Torres engaged in extensive financial crimes and unlawful offenses that he is not actually being charged with here.”
“While Mr. Torres submits that he has been prejudiced by the prosecution’s flagrant misconduct, the Court should impose the prejudice criteria in this case as the purpose of the sanction for the OAG,” the defense team stated.
“Imposing the sanction of dismissal with prejudice is the proper sanction for the unauthorized practice of law and will send a clear message to the OAG to reform [its] practices…in its processing of applications for admission to practice law in the Commonwealth.”
The defense team likewise noted that pursuant to the pro hac vice application documents and the Supreme Court’s order, AAG Glass was the local counsel for the special prosecutor.
“As such, he possessed the obligation and duty to ensure that the Special Prosecutor complied with all the applicable rules regulating the practice of law in the Commonwealth. These include NMI Sup. Ct. R. 75-2(c), which mandates the taking of the attorney oath as a prerequisite to practicing law in the Commonwealth. The breach of that duty and obligation is a serious matter, which warrants his disqualification from this case. The disqualification of Mr. Kingman and AAG Glass, instead of the entire OAG, may serve to impress upon the OAG the seriousness of the misconduct and result in the institution of procedures or mechanism to prevent another recidivist occurrence,” the defense team stated.
The court has yet to issue a trial schedule for the case.
