Congregational Christian Church in American Samoa v. Tagaloa

3 Am. Samoa 3d 198

• Court: High Court of American Samoa
• Decided: February 23, 1999
• Docket: LT No. 15-98
• Status: Published

Opinion

Counsel Tautai Aviata F. Fa'alevao is the territorial Public Defender. He seeks leave to represent plaintiff on a pro bono basis in this private law suit. As Public Defender, however, counsel is subject to the following statutory restriction:

The Public Defender shall devote full time to the performance of his duties and shall not engage in the private practice of law.

A.S.C.A. § 4.0320(d).

It would seem at first blush that the most straightforward reading of the enactment is that “private practice” in this context means any practice other than in one’s official capacity as Public Defender. Counsel, however, urges an interpretation of the enactment so as not to shut the door on his eligibility to participate in pro bono work.

As a threshold matter, “[i]t is the duty of public officers to refrain from outside activities which interfere with the proper discharge of their duties. Within reasonable limits, subject to the limitation that it may not abridge any man’s constitutional rights, the legislature has power to ascertain and declare what activities are inconsistent with the proper performance of public duties.” (53A AM JUR 2d, Public Officers and Employees, § 320.

On the other hand, pro bono service, including charitable organization representation, is consistent with the highest traditions of the legal profession. Indeed, Rule 6.1 of the ABA Model Rules of Professional Conduct (1983), adopted in this jurisdiction, reads:

A lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service of charitable groups or organizations, by service in activities for improving the law, the legal system or the legal profession, and by financial support or organizations that provide legal services to persons of limited means.

This laudable public goal of the profession, however, cannot detract from the very clear statutory goal of ensuring that the Public Defenders’ duties and responsibilities are not comprised because of sojourns into non-public defender areas of work. The representation of indigent criminal defendants is, after all, a governmental responsibility of constitutional dimensions.

Faithful to the statute’s public aims, but in the spirit of encouraging pro bono and public service generally, the Court believes that the statute can be construed to allow such outside activities by the Public Defender when such activities 1) do not present a conflict of interest of any kind; and 2) do not interfere with official government duties.¹

In furtherance of these premises, the following order will therefore enter,

Leave is granted to the Public Defender, for this case only, to continue pro bono representation of plaintiff upon the following terms:

1. Counsel shall certify with the court by filing an affidavit averring that his pro bono duties in this matter shall not compromise his primary responsibilities to his office as public defender.

2. Counsel shall further certify that he has permission from his . supervisor, the Governor, to undertake this pro bono service.

3. Counsel shall further take leave from his official duties, supplying copies of approved leave applications, when engaged in his pro bono activities during normal government work hours.

It is so ordered.

1 Cf. Cal. Gov’t Code § 27705:

[T]he public defender shall devote all his time to the duties of his office and shall not engage in the practice of law except in the capacity of public defender (emphasis added).

Unlike A.S.C.A. § 4.0320(d), California’s more restrictive statutory language clearly excludes pro bono work, prohibiting all practice of law “except in the capacity of public defender.”