May 7, 2015 Pohnpei, FSM --Stephen Finnen, attorney for Luen Thai and Liancheng has requested an emergency telephonic hearing at the FSM Supreme Court on the issue of representation of the defendants in the civil case against the State of Pohnpei, John Ehsa in his capacity as Governor, Office of Fisheries and Aquaculture (OFA), and Miju Mulsan Company, Ltd.
Attorney Joseph Phillip has been the attorney of record for Miju Mulsan since the case was filed in 2013. Though he recently filed a motion to withdraw as Miju Mulsan's representative in the case, the court has not yet made a ruling on that matter. As of today, he is still the counsel of record for Miju Mulsan but the Governor has also hired him to be the Assistant Attorney General.
After former Pohnpei Assistant Attorney General Clayton Lawrence resigned from his position, Governor Ehsa hired Joseph Phillip to take the position against the strongly worded advice of his Attorney General for reason including ABA Rules of Professional Conduct for Attorneys. The Attorney General refused to sign the Personal Services Contract for Phillip.
On May 1, the AG filed a response strongly opposing Joseph Phillip's motion to withdraw as counsel for Miju Mulsan. That motion as well as a motion for protective order protecting records from Phillip reminded the court that on April 17, Phillip appeared before the court as counsel for Miju Mulsan and argued against the defendants State of Pohnpei, John Ehsa as Governor, and OFA.
Phillip, listing his personal P.O. Box address, filed notice to the Court saying that he will represent the State of Pohnpei, OFA, and Governor Ehsa, essentially switching sides on the basis of his not having been paid by Miju Mulsan.
The AG's office, having been given court approval to withdraw as the Governor's counsel is already representing Pohnpei State and OFA.
After the April 17 hearing, the court granted a motion by the Attorney General to quash a subpoena to depose Assistant Attorney General Lawrence. On April 29, Phillip appeared in the the Office of the Attorney General seeking to be given the case files on the Civil Action which the court had ordered protected. He was then still the attorney for Miju Mulsan though the Governor had hired him as Assistant Attorney General as well. The court still has not dismissed Phillip as Miju Mulsan's attorney.
"At the current time, Joseph Phillip is representing Miju Mulsan Company, Ltd., and claiming to represent Governor John Ehsa, the Office of Fisheries and Aquaculture (OFA) and Pohnpei State," the Plaintiff's request for an emergency telephonic hearing said.
"Initially it appears that Mr. Phillip would have unwaivable conflicts in representing Pohnpei State and the Office of Fisheries and Aquaculture," the emergency hearing request said. "In addition, he has not provided any documentation showing retention by these entities or that Miju Mulsan waives any conflicts with his representation. It is unclear if Mr. Phillip could represent the Governor, who is currently unrepresented, while representing Miju Mulsan. If he does represent both then there would be the assumption that their interests are aligned in this litigation, which then may subject Miju Mulsan to further liability in this action."
Luen Thai has claimed over $120,000 in damages from the defendants.
"Another issue is that Mr. Phillip is now apparently working in the Pohnpei State AG's office at the insistence of the Governor, yet he has filed his notice of appearance from his private address. His appearance then would be as a private attorney," the telephonic request said. "It is unclear if Mr. Phillip can take new private cases while working for the State AG's office."
"…Mr. Phillip is still Miju Mulsan's counsel until withdrawal is granted. His premature actions in appearing for other defendants while still counsel for Miju Mulsan is aggravating all the about conflict issues," it said. "As stated in the AG's opposition to Mr. Phillip's filings, the issue was already decided by the court in this matter that one attorney could not represent all four defendants."
On April 30, the Attorney General filed a response to plaintiff's motion for damages of over $120,000 due to the alleged contempt when locks were placed on the Luen Thai facility at the Dekehtik dock. That motion essentially argued that Pohnpei State was an innocent bystander in that action, and OFA was compelled to participate in the alleged contempt acts. It claimed that "Miju Mulsan, through its agents and representatives participated, acted, concerted and encouraged the alleged contempt act."
That motion provided several affidavits in support of its response. One was from the OFA director.
On May 4, while Mr. Phillip was still the court recognized counsel for Miju Mulsan, he filed a "Motion to Strike Response to Supplemental Brief on Damages Filed by Attorney General Pohnpei State." He did so as "the undersigned counsel for defendants John Ehsa, in his capacity as Governor of Pohnpei defendants Pohnpei State and OFA."
He explicitly excluded his client Miju Mulsan from his response.
The court already ruled that the Attorney General could withdraw as counsel for Governor Ehsa while still representing Pohnpei State and OFA but Phillip again argued from what he said was Miju Mulsan's position, that the Governor and the State are inseparable.
He also argued that the Attorney General did not have the Governor's authorization to file a response and "therefore must be stricken as sham."
Luen Thai's request for an emergency hearing and also in their Motion Opposing Mr. Phillip's withdrawal as counsel for Miju Mulsan suggested that no one seemed to know who Miju Mulsan's principals are. They alleged that though Miju Mulsan had deposited thousands of dollars into an individual's personal bank account, under deposition, that person said that he did not have a contract with Miju Mulsan and did not represent them.
Luen Thai says that the matter of representation is so up in the air that they don't even know for certain who they should make service of their motions on at Miju Mulsan.
At press time, the Court had not yet scheduled an emergency telephonic hearing on representatives in the case.