CONGREGATIONAL
CHRISTIAN CHURCH
IN
v.
VAE TAGALOA, VAE TANIELU, AND VAE FAMILY
OF
High Court of
Land and Titles Division
LT No. 15-98
[1]
It is the duty of public officers to refrain from outside activities which
interfere with the proper discharge of their duties.
[2]
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.
[3]
The American Samoa Rules of Professional Conduct encourage attorneys to perform
public interest legal service.
[4] Although the Public Defender is required to devote
full time to the performance of his duties, and prohibited in engaging in the
private practice of law, he or she may engage in pro bono and public service
when such activities: (1) do not present a conflict of interest of any kind;
and (2) do not interfere with official government duties.
Before KRUSE, Chief Justice, TUA`OLO, Associate Judge, SAGAPOLUTELE,
Associate Judge.
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). [3ASR3d199]
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.
[1-2] 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.” 63A Am Jur 2d, Public Officers and
Employees, § 320.
[3] 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.
[4] 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] [3ASR3d200]
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]
[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),