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Reports of attorney residency rule ‘false’ news, say AG & DAG

attorney Sean Morrison
rhonda@samoanews.com

Pago Pago, AMERICAN SAMOA — A press release from attorney Sean Morrison, who currently resides in Louisiana, stated that “Attorney General Fainu'ulelei Falefatu Ala'ilima-Utu, through his Deputy, Roy Hall, is seeking to disbar all attorneys who leave American Samoa and take up residence elsewhere.” Samoa News published the press release without seeking comments from either the AG or DAG or Morrison.

We apologize for not seeking comment from either parties and publishing the press release ‘as is’ without reviewing PROMULGATION ORDER No. 01-22, which Morrison refers to but does not clearly identify in his press release.

In review of the motion that was filed by DAG Hall, Samoa News notes there is no mention of disbarment of any attorneys, but merely seeks a determination from the court on whether non-resident attorneys need to comply with High Court Rule 145 through pro hac vice admission, by associating with a local law firm.

The press release states that “according to a motion filed in the High Court by Hall, a new court rule requiring new bar applicants be residents also means that if a lawyer moves away and gets an address outside of American Samoa, they lose their license right away.”

Since publishing the story, Samoa News has been contacted by local AG Fainu'ulelei and DAG Hall saying the report is ‘false’ or ‘fake’ news, and also questions the use of the word “disbar”.

Both men point to the fact that the so-called “new court rule” the press release references was in fact adopted, effective August 19, 2022, through PROMULGATION ORDER No. 01-22, signed by Chief Justice Kruse.

DAG Hall says that nowhere in the 2022 Matter of Adopting Revised High Court Rules 137, 138, 143, and 145 and Promulgation of Rule 137A is the word “disbar” used in association with no longer being able to practice law in the Territory due to not being a resident of American Samoa; and pointed out that Rule 145 takes care of the issue of ‘foreign’ or non-resident lawyers practicing law in American Samoa — through pro hac vice admission.

Samoa News reached out to Sean Morrison, Managing Attorney of M Sean Morrison Law Offices LLC, about the press release and he replied in an email received yesterday.

“The Attorney General seems to be stuck on the word ‘disbar’. Their motion does not seek to disbar all off-island attorneys; it states that they are already ineligible to practice law due to the new Rule 137. That’s the same thing. Even Rule 145 about pro hac vice only applies to an attorney “who is not a member of the American Samoa Bar Association.”

The word “disbar” is not the issue. The outcome of their motion is.

“This isn’t just me. Many other off-island attorneys are shocked and concerned about this move by the AG’s office. If they lose their license to practice law because they moved addresses, it doesn’t matter that they weren’t “disbarred.”

“I choose to believe that the Attorney General did not fully consider the broad ramifications of their position and will retract it.”

PROMULGATION ORDER No. 01-22

Promulgation Order No. 01-22 states that “Effective August 19, 2022, High Court Rule 137A and Revised High Court Rules 137, 138, 143, and 145, as appended hereto, to govern the practice and procedure for admitting attorneys and legal practitioners into the practice of law in American Samoa, are hereby adopted and promulgated to establish High Court Rule 137A and to replace the versions of Rules 137, 138, 143, and 145 of the High Court Rules that are currently in place.”

In reviewing the Promulgation Order, High Court Rule 138 is found to deal with the admission of foreign-trained lawyers through reciprocity or otherwise — it repeals the rule, and in a comment cited in the rule, it states that is no longer necessary since Samoa that was the only other foreign jurisdiction that accorded the Territory reciprocity had negated the notion as it had enacted its Law Practitioners Act of 1976, which prescribed the practice of law to Samoa’s citizens.

A further note to Rule 138 says that “in terms of reciprocity with State and other territories, Rule 138 is pointless given the provisions of HCR 137 (2022) — accepting the professional certification measures taken by the States and territories of the United States for those applicants who have received a degree from an ABA accredited law school and are "residents" of American Samoa.

“On the other hand, a similarly qualified applicant who is not a resident of the Territory, Rule 145 provides for pro hac vice admission on a case-by-case basis, in association with a local attorney.

Rules 137, and 143 call for applicants among other requirements to practice law in American Samoa must be residents of the Territory.

 RULE 137 — lays out qualifications for admission to practice law in American Samoa, of which “be a resident of American Samoa” is one of the components.

In a comment to the rule,  it’s explained that “the residency component to admission, as expressly provided in above version of Rule 137 (HCR 137 -2022) codifies the practice promulgated under Acting Chief Justice Thomas W. Murphy in 1981 and has since been consistently applied despite not being explicitly imposed under previous versions of the High Court Rules.”

RULE 143 defines the qualifications for legal practitioners to practice law in the territory, and again “be a resident of American Samoa” is part of the qualifications.

RULE 145 is for a person, “who is not a member of the American Samoa Bar Association but who is a member in good standing of and eligible to practice before the highest court of record in any State or territory of the United States may, at the discretion of the Chief Justice, be permitted, upon written application, to appear as Counsel Pro Hac Vice.”

It goes on to state, “However, an active member of the American Samoa Bar Association must be associated as Attorney of Record, upon whom service of process may be made and with whom the judge and opposing counsel may communicate concerning the action.

“A person permitted to appear as Counsel Pro Hac Vice pursuant to this Rule is subject to the jurisdiction of the High Court with respect to the Disciplinary Rules to the same extent as a member of the American Samoa BarAssociation.”

MORRISON’S PRESS RELEASE

Morrison’s press release states that “legal experts are saying that the Attorney General is not reading the rule correctly.

“They say the rule doesn't say anything about taking away licenses from lawyers who already have them.”

He also pointed out that “many attorneys licensed in American Samoa have a long history of helping people in the territory while living somewhere else. For example, Charles Alailima worked on many cases in American Samoa for decades while a resident of Washington State. Even the Attorney General's Office has lawyers who live outside of American Samoa.

"Helping a community does not stop just because you move away," said attorney Sean Morrison, who has provided help and free pro bono work for American Samoan businesses and nonprofits from his office in Louisiana. "Sometimes, it is very hard for people to find an attorney on-island, so it's extremely concerning that the AG wants to cut people off from legal help."

According to Morrison, the AG's move “comes at a time where there aren't enough lawyers in American Samoa who are working outside of government.

“Even private practice attorneys are working for the government, with many pulled away to shore up understaffing in government legal offices.”

He said, “Observers worry this effort to ‘disbar’ 2-thirds of the bar association will only make the situation worse. They think it might scare new lawyers away and make it even harder for people in American Samoa to get the legal help they need.”

(Samoa News should point out that the use of the word ‘disbar’ is from the author of the press release, not Samoa News.)

Morrison concluded in his press release that “challenges to the constitutionality of this move are expected.”