High Court Rules
HIGH COURT RULES (HCR)
TABLE OF CONTENTS
VII.RULES OF CONDUCT
Rule 2.Effective Date
Rule 3.Application & Scope
Rule 4.Penalties for Noncompliance
Rule 11.Business Hours
Rule 12.Courts Always Open
Rule 13.Terms of Court
Rule 14.Distribution of Judicial Duties
Rule 15.Priority Matters
Rule 16.Court Reporters
Rule 21.Filing of Papers
Rule 22.Custody of Files
Rule 25.Clerk’s Authority to Execute Papers
Rule 31.Fees for Service
Rule 32.Advance Deposit
Rule 33.Fees Payable in Clerk’s Office
Rule 34.Certificate of Service
Rule 35.Return on Marshal’s Attachment
Rule 36.Return on Marshal’s Sale
Rule 41. Use
Rule 42.The Library Hours
Rule 43.Withdrawal of Books
Rule 52.Format of First Page
Rule 53.Changes on Face of Paper
Rule 54.Conformance of Copies
Rule 55.Separate Claims for Relief
Rule 56.Case Numbers
Rule 102.Courtroom Conduct
Rule 103.Judge’s Conduct
Rule 104.Attorney’s and Legal Practitioner’s Conduct
Rule 106.Photographs, Broadcasts and Tape Recording Prohibited
Rule 112.Types of Contempt
Rule 113.Direct Contempt
Rule 114.Constructive Contempt
Rule 115.Issuance of Order to Show Cause
Rule 116.Response of the Accused
Rule 120.Effect of Other Laws
Rule 133.Bar Admissions Committee
Rule 135.Moral Character
Rule 136.Investigation of Moral Character
Rule 139.Oath of Admission
Rule 140.Integrated Bar
Rule 141.Professional Association
Rule 142.Professional Corporation
Rule 143.Legal Practitioners
Rule 144.Licenses Previously Issued
Rule 145.Counsel Pro Hac Vice
Rule 146.Officials Prohibited from Practicing
Rule 152.Definitions and Jurisdiction
Rule 154.Rules of Civil Procedure
Rule 155.Grounds for Discipline
Rule 156.Confidentiality of Records
Rule 157.Public Hearing
Rule 159.Duty of Complainant
Rule 160.Unwillingness of Complaint to Proceed
Rule 161.Informal Hearing
Rule 162.Formal Proceedings
Rule 163.Composition of Hearing Panel
Rule 164.Appointment of Disciplinary Counsel
Rule 165.Duties of Disciplinary Counsel
Rule 167.Notice of Hearing
Rule 169.Time Period for Discovery
Rule 171.Holding Formal Proceeding in Abeyance
Rule 172.Rules of Evidence
Rule 173.Standard of Proof
Rule 174.Termination by Stipulation as to Facts and Discipline
Rule 175.Forms of Discipline
Rule 177.Motion to Reconsider
Rule 178.Appeal to the Chief Justice
Rule 179.Effective Date of Discipline
Rule 180.Notice of Public Discipline
Rule 182.Incapacity of Attorney of Practitioner
A. HIGH COURT RULES (HCR)
I. GENERAL PROVISIONS
RULE 2. EFFECTIVE DATE. Except as otherwise provided herein, these rules are effective October, 1 1981, and are promulgated for the due administration of justice in American Samoa. These rules shall govern all actions and proceedings pending on or commenced after that date. These rules supersede all previous rules of the High Court.
RULE 3. APPLICATION & SCOPE. These rules apply to the High Court, District Court and the Village Courts. They supplement the applicable provisions of the American Samoa Code Annotated and are to be construed so as to be consistent with the Code and to promote the just, efficient and economical administration and determination of every action and proceeding.
RULE 4.PENALTIES FOR NONCOMPLIANCE.Failure of court personnel, counsel or of a party to comply with any provision of these rules is a ground for imposition by the Court of such sanctions authorized by statute of rule as may be appropriate.
II. ADMINISTRATIVE PROVISIONS.
(a) All criminal proceedings in the District Court involving felonies and serious misdemeanors and all proceedings in the High Court must be taken down in shorthand by a court reporter or recorded electronically. If any other proceeding is to be reported, a written request for such reporting must filed with the Clerk of Court before commencement of the proceeding and the presiding judge shall rule upon the request.
(b) Court reporters, when assigned to report a case, must take down in shorthand all the opening statements, testimony, the objections made, the rulings of the Court, voir dire, jury instructions, and arguments of counsel. If directed by the judge at the request of either party, court reporters must, within such reasonable time after the trial of such case as the Court may designate, write out the same, or such specific portions thereof as may be requested, by typewriter or other printing machine, and certify to the same as being correctly reported and transcribed and, when directed by the Court, file the same with Clerk of Courts.
(a) The word “Court” shall refer to the High Court, District Court and Village Courts.
(b) The word “judge” shall refer to the Chief Justice, Associate Justices, District Court Judges and Permanent and Temporary Associate Judges.
(c) The word “Staff” shall refer to all court personnel other than judges.
(d) The word “Clerk” shall refer to the Clerk of Courts.
(e) The word “he” shall include “she.”
III. CLERK’S OFFICE
RULE 22.CUSTODY OF FILES. All files of the Court shall remain in the custody of the Clerk and no record or paper belonging to the files of the Court shall be taken from the custody of the Clerk without a special order of a judge and a proper receipt signed by the person obtaining the record or paper. However, the files of the Court, except where the Court has ordered a file sealed, are matters of public record and may be examined in the Courthouse.
RULE 23.DOCKET. The Clerk of Court must keep a docket and enter therein each case and its file number. All papers filed with the Clerk and all process, orders minutes and judgments shall be entered chronologically in the docket on the folio assigned to the case. Docket eateries should be brief but must show the date the entry is made. The date of the entry of the order or judgment for all purposes is the filing date of any papers or the date of the pronouncement from the bench.
RULE 24.EXHIBITS Every exhibit introduced in evidence and all depositions and transcripts shall be held in the custody of the Clerk. Unless reason exists for retaining originals, the judge may, upon applications, order them returned to the party to whom they belong.
RULE 25.CLERK’S AUTHORITY TO EXECUTE PAPERS. The Clerk is authorized to sign and enter only those orders specifically allowed to be signed by the Clerk by statute or by any Rules of Court without further direction of a judge.
FILING FEES. The following fees are payable to the Clerk of the Courts upon the filing of:
(a)a civil action in the High Court . . . . . . . . . . . $100.00;
(b)an appellate action. . . . . . . . . . . . . . . . . . . . . $100.00;
(c)a foreign judgment action . . . . . . . . . . . . . . . $ 25.00;
(d)a domestic relations action . . . . . . . . . . . . . . $100.00;
(e)a relinquishment/termination petition . . . . . . $ 25.00;
(f)an adoption petition . . . . . . . . . . . . . . . . . . . .$ 25.00;
(g)a probate action . . . . . . . . . . . . . . . . . . . . . . . $ 50.00;
(h)a small claims action . . . . . . . . . . . . . . . . . . . $ 5.00;
(I)a land or matai action . . . . . . . . . . . . . . . . . . .$100.00;
(j)a civil action in the District Court . . . . . . . . . $ 50.00;
(a)copying fees (per page) . . . . . . . . . . . . . . . . . $ .50;
(b)certification fees . . . . . . . . . . . . . . . . . . . . . . .$ 1.00;
(c) search for records fee . . . . . . . . . . . . . . . . . . .$ 1.00;
(d)admission pro hac vice (TCR 145 application)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 10.00;
Effective January 1, 1996
IV. MARSHAL’S OFFICE.
RULE 31.FEES FOR MARSHAL’S SERVICES. The following fee schedule for services of the Marshal shall be collected and fixed as costs:
(a)for serving, within the island of Tutuila, a summons or any other writ, order, or process in any case or proceeding (per person or party) . . . .$ 15.00;
(b)for serving, within the island of Tutuila, a subpoena or summons for a witness or appraiser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 15.00;
(c)for preparing any public notice or bill of sale
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 15.00;
(d)for executing a warrant for arrest of any vessel
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 50.00;
(e)for serving within the island of Tutuila, a small claims complaint, summons, and notice of hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 5.00:
Effective January 1, 1996.
RULE 33.FEES PAYABLE IN CLERK’S OFFICE. For those who wish to have the Marshal’s Office serve process, all fees and advance deposits are payable to the Clerk’s Office at the time of the request for service. In the event that there is any expense greater than the advance deposit, the Marshal’s Office may require additional advances from the attorney or the litigant.
RULE 34.CERTIFICATION OF SERVICE. Where the Marshal is the serving officer, a certificate of service shall be prepared by the Clerk and submitted by the Clerk to the Marshal for execution and service.
RULE 35.RETURN ON MARSHAL’S ATTACHMENT Upon the Marshal’s attachment of property pursuant to a court order, the Marshal must within 10 days unless extended by the Court file a return including an inventory of the property attached.
RULE 36.RETURN ON MARSHAL’S SALE. Upon the Marshal’s sale of property levied upon, the Marshal shall within a reasonable time file a return including an inventory of the property sold and all bids made upon such property.
V. LAW LIBRARY.
RULE 42.THE LIBRARY HOURS. The library hours shall be from 7:30 a.m. to 4:00 p.m. every working day. When the need is clearly manifested, special arrangements may be made with the Law Librarian or the Marshal for the use of the law library during non-business hours.
RULE 43.WITHDRAWAL OF BOOKS. No book will be withdrawn from the law library except under special circumstances. The decision to allow withdrawals of books from the library shall be made by the Law Librarian or the Chief Justice.
RULE 44.PENALTIES. Damaging or defacing any book or reference in the law library, removing any book from the library without permission, or failing to return a book on the due date may result in deprivation of the privilege or using the library, liability for loss or damage, or such other disciplinary action as may be imposed by the Chief Justice.
VI. PAPERS & PLEADINGS.
RULE 51.FORM. All papers presented for filing shall be on white opaque paper of good quality with numbered lines, 8 ½” by 11″ in size, and shall be flat, unfolded (except where necessary for the presentation of exhibits), without back or cover, and shall comply with all other applicable provisions of these rules. A transition period concerning the size requirement of papers shall be in effect until April 1, 1982. All papers shall be typewritten, or printed, or be prepared by a photocopying or other duplication process that will produce clear and permanent copies equally legible to printing, in type not smaller than pica size. No script or italic typewritten material is acceptable. Only one side of the paper shall be used, and all papers except for the identification of counsel, title of the case, footnotes, and quotations, shall be double spaced and numbered at the bottom. All papers shall consist entirely of original pages without riders, and shall be firmly bound together at the top. Exhibits may be fastened to pages of the specified size and, when prepared by a machine copying process, shall be equal to typewritten material in legibility and permanency of image.
(a) the space commencing with line 1, to the left of the center of the page, the name, office address, or if none, the residence address, and telephone number of the attorney for the party in whose behalf the paper is presented, or of the party if he is appearing in person, and the specific identification of each party represented by name and interest in the litigation (i.e., plaintiff, defendant, etc.);
(b)the space between lines 1 and 7 to the right of center of the page shall be left blank for the use of the Clerk;
(c) on or below line 8, the title of the Court:
“IN THE DISTRICT COURT OF AMERICAN SAMOA” or “IN THE HIGH COURT OF AMERICAN SAMOA.”; below the High Court title, the appropriate division of the Court shall be designated;
(d) below the title of the court, in the space to the left of the center of the page, the title of the action in the initial pleading; the title of the action must contain the names of all of the parties, but thereafter may be appropriately abbreviated;
(e) to the right of and opposite the title, the class of case (C.A., P.R., D.R., CR.D, CR.H., LT., M.T., etc.) and the number of the action, if known; and
(f) immediately below the number of the action the nature of the paper; in a case having multiple parties any answer, response or opposition shall specifically identify the complaining, propounding or moving party and the complaint, motion, or other matter being answered or opposed.
RULE 56.CASE NUMBERS. The Clerk shall, upon filing the first pleading in any case, assign a case number and endorse that number upon the pleading. The case number must appear on every subsequent paper or pleading presented for filing.
VII. RULES OF CONDUCT
(a) All attorneys and court personnel whose duties are in the courtroom shall be neatly groomed. Except as hereinafter provided, legal counsel must wear a shirt, tie and long pants or, in lieu thereof, a shirt, tie and lavalava. On Fridays (Samoan Day), male counsel may wear an ula in lieu of a tie. Female counsel must wear dresses, pantsuits or skirts and blouses.
(b) Attorneys, during jury trial, shall not exhibit undue familiarity with the judge, opposing attorneys, jurors, witnesses or court officials.
(c) While Court is in session, no person shall be permitted within the bar of the Court other than members of the bar, litigants, court personnel and witnesses called to the stand, except by leave of the Court. This includes member of litigants’ families.
(d)Lawyers shall rise and remain standing while addressing the Court or a jury, unless excused by the Court.
(e) Lawyers may never lean upon the bench nor appear to engage the Court in a confidential manner, except upon invitation.
(f) The Defendant shall stand during arraignment or entering plea and at the time of sentencing.
(g)Except when Court business is to be conducted and counsel for the respective parties are present, counsel shall not congregate in the judge’s chambers.
(h)Persons in the courtroom without the bar shall not disturb the order of the Court.
RULE 103.JUDGE’S CONDUCT. The conduct of all judges shall be governed by the Canons of Judicial Ethics. Violations of the Canons shall result in an appropriate disciplinary action.
RULE 104.ATTORNEY’S AND LEGAL PRACTITIONER’S CONDUCT. The conduct of attorneys and legal practitioners shall be governed by the American Bar Association Model Rules of Professional Conduct. Violations of the Model Rules shall result in an appropriate disciplinary action.
Effective May 17, 1993
RULE 105. PUBLICITY.Court personnel, including, among others, marshals, clerks and deputies, law clerks, messengers, court interpreters, and court reporters, shall not disclose to any person information relating to any pending criminal, civil or bankruptcy proceeding that is not part of the public records of the court without specific authorization of the court, nor shall any such personnel discuss the merits or personalities involved in any such proceeding with any member of the public.
All forms, means and manner of taking photographs, tape recording, broadcasting, or televising are prohibited in the Courthouse during the course of , or in connection with, any judicial proceedings whether the court is actually in session or not unless the presiding judge in his discretion permits otherwise. This rule shall not prohibit recordings by a court reporter provided, however, no court reporter or any other person shall use or permit to be used any part of any recording of a court proceeding on, or in connection with, any radio or television broadcast of any kind. The Court may permit photographs of exhibits to be taken by or under the direction of counsel.
VIII. CONTEMPT RULES.
RULE 113.DIRECT CONTEMPT. An act of direct contempt is misbehavior of any person, including legal counsel, in the presence of the Court or so near thereto that the misbehavior obstructs the administration of justice. Direct contempt may be summarily punished by the Court. An order must be filed by the court reciting the facts, adjudging the person guilty and prescribing the punishment. A direct contempt order is valid only if it recites facts with sufficient particularity to demonstrate on its face that the alleged contemnor’s conduct constituted an act of contempt.
RULE 114.CONSTRUCTIVE CONTEMPT. An act of constructive contempt is one which arises from matters not occurring in or near the presence of the Court but which tends to obstruct or defeat the administration of justice. For indirect contempt, an affidavit stating the facts constituting the contempt and an Order to Show Cause re Contempt must be filed with the Court and a hearing must be held as provided for below.
RULE 115.ISSUANCE OF ORDER TO SHOW CAUSE. If the judge is satisfied with the affidavit presented to him for bringing a constructive contempt proceeding, he signs the Order to Show Cause re Contempt. The Clerk of Court calendars a hearing and puts the date of the hearing on the Order to Show Cause. Copies of both the affidavit and the Order to Show Cause must be served personally on the alleged contemnor.
RULE 117.HEARING. To prove the allegations of the affidavit, witnesses and parties may be called to testify at the hearing and other competent evidence may be introduced. The alleged contemnor may be represented by counsel and may call witnesses and present evidence in his own behalf.
RULE 118.PUNISHMENT. It is within the sound discretion of the Court to impose a penalty, either fine or imprisonment, for contempt reasonably commensurate with the gravity of the offense. If there is an express finding that the accused has the present ability to perform an act ordered, that the punishment may be imprisonment until the act has been performed.
However, the commitment of such a contemnor must be reviewed periodically and if the Court finds that the contemnor no longer has the ability to comply then the contemnor must be released.
At the discretion of the Court, if there is a finding of contempt, monetary sanctions may be awarded for the costs, including reasonable attorney fees, of bringing the proceeding.
IX. RULES OF ADMISSION.
RULE 133.BAR ADMISSIONS COMMITTEE. The Chief Justice shall create a Standing Committee on Admissions to investigate and determine the qualifications of applicants and to make recommendations to the Chief Justice concerning the admission of applicants.
RULE 134.APPLICATION. Any person seeking admission to the practice of law in American Samoa must file with the Clerk of Courts a formal application in a form furnished by the Clerk, which must be made under oath and must contain such information relating to the applicant’s age, social security number, residences, addresses, citizenship, occupations, general education, Legal education, and moral character. Each application must be accompanied by a $50.00 filing fee payable to the American Samoa Bar Association.
Effective April 7, 1983.
RULE 135.MORAL CHARACTER. Every applicant must be of good moral character. The term “good moral character” includes qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, observance of the laws of American Samoa and the United States, and respect for the rights of others and for the judicial process.
RULE 136.INVESTIGATION OF MORAL CHARACTER. The Standing Committee may require the applicant to submit letters of character reference, or may require any other investigation deemed appropriate, including consideration of a report from the National Conference of Bar Examiners. The applicant bears the expense of any investigation up to the amount of $125.
RULE 137.EDUCATION. The applicant must demonstrate the necessary qualifications of learning and ability by proof of having been admitted to practice law before the highest court of record of a State or Territory of the United States or of a foreign country where the English common law forms substantially the basis of that country’s jurisprudence, and where English is the language of instruction and practice in the courts of that jurisdiction; provided that such prior Bar admission was premised upon proof of graduation from an accredited law school and successful completion of a bar examination or of equivalent indicia of learning and ability.
Effective August 29, 1989
RULE 138.RECIPROCITY. The fact that an applicant has practiced for a period of 2 years or more before the highest court of record in a State, Territory of the United States, or of a foreign country where the English common law forms substantially the basis of that country’s jurisprudence, where English is the language of instruction and practice in the courts of that jurisdiction, and which State, Territory, or country extends reciprocity to American Samoa is prima facie evidence of the applicant’s fitness to practice law in American Samoa and to be admitted to the Bar on reciprocity, reserving to the Standing Committee the power to review such circumstances as might be necessary.
RULE 139.OATH OF ADMISSION. Upon meeting the requisite qualifications for admission, an applicant is admitted to the Bar by taking an oath to support the Constitution of the United States of America and the Revised Constitution of American Samoa and by taking the oath of office as an Attorney and Counselor of law.
RULE 140.INTEGRATED BAR. The Bar is integrated in that every person who has been admitted to practice law must maintain membership in the Bar Association. Only a member of the Bar Association may practice law in American Samoa.
RULE 142.PROFESSIONAL CORPORATIONS. A corporation organized under the laws of American Samoa by attorneys desiring to practice law within such corporation, must file an application with Standing Committee. In addition:
(a) For a corporation to be licensed as a professional legal corporation, each shareholder, director, and officer of the corporation must be licensed to practice law in American Samoa. Each employee of the corporation who will practice law in American Samoa must be licensed to practice law in American Samoa.
(b) The shares of a corporation owned by a person who dies or becomes disqualified to practice law must be acquired by the corporation, by its remaining shareholders, or by one or more persons licensed to practice law within 90 days of the person’s death or disqualification.
(c) The corporation may not limit the professional liability of any person licensed to practice law.
(d) The requirements of sections (a), (b), and (c) of this rule must be set forth in the corporation’s articles of incorporation, by-laws, and share certificates.
(e) The corporate name of every such corporation must include the name of the shareholder and if there is more than one shareholder, either the names of all or the name of one or more and the words “& Associates”, followed by the words: “A Professional Corporation.”
(f) Nothing in this rule affects or impairs the disciplinary powers of the Court over any person licensed to practice law in American Samoa.
(a) Only those legal practitioners currently members of the American Samoa Bar Association are permitted to practice law. No new legal practitioners will be admitted to the Bar in the future.
(b) No legal practitioner may form a professional association or a professional corporation.
(c) No legal practitioner may be associated with an attorney. However, an attorney may use the services of a legal practitioner on a case by case basis.
(d) Legal practitioners may not advertise as “legal counsel”, “counselor”, “Law office of ” or otherwise infer in any advertisement that he or she is an attorney.
(e) Legal practitioners may use the letters “L.P.” after their names for the purpose of denoting his or her profession.
(f) Legal practitioners are authorized to practice only in the Land Titles Division of the High Court, in adoption matters in the District Court, and in all matters in the Village Courts.
(g) Legal practitioners are permitted to practice in the Appellate Division of the High Court in those Appeals originating in the Land and Titles Division of the Court.
Effective February 11, 1983
RULE 145.COUNSEL PRO HAC VICE. A person who is not a member of the American Samoa Bar but who is a member in good standing of and eligible to practice before the highest court of record in any State, Territory of the United States or of a foreign country where the English common law forms substantially the basis of that country’s jurisprudence, where English is the language of instruction and practice in the courts of that jurisdiction and which state, Territory, or country allows members of the American Samoa Bar to appear Pro Hac Vice, may at the discretion of the Chief Justice, be permitted, upon written application, to appear as Counsel Pro Hac Vice. 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 Bar Association.
RULE 146.OFFICIALS PROHIBITED FORM PRACTICING LAW. The Speaker of the House, the President of the Senate, the Governor, and the Lieutenant Governor are prohibited from practicing law in American Samoa during their terms in office.
X. DISCIPLINARY RULES.
RULE 152.DEFINITIONS AND JURISDICTION. As used in these rules; “bar” is the American Samoa Bar Association; and “member” is a member, former member of the American Bar Association or an attorney admitted pro hac vice.
Any attorney admitted to practice law in American Samoa and any attorney specially admitted for a particular proceeding, is subject to the exclusive disciplinary jurisdiction of the High Court.
(a) any act or omission by a member which breaches the Rules of Professional Conduct, as amended;
(b) conviction of a crime involving mora turpitude; and
(c) inability of an attorney to competently represent his clients for any reason whatsoever.
Effective June 16, 1989
RULE 156.CONFIDENTIALITY OF RECORDS. Except as otherwise provided in these rules, investigation of complaints, informal hearings, formal proceedings, and any information produced therefrom or concerning the pendency or status thereof, shall not be public. However, upon request, the High Court may advise a complainant of the status of an investigation, informal hearing or formal proceeding.
RULE 157.PUBLIC HEARING. The hearings of a formal proceeding shall be public when requested by the member under investigation. When such a request is made, any formal pleadings, transcripts, exhibits, statements, decisions, findings, conclusions and recommendation, reprimand, dismissal or other decision resulting from such public hearings and the record shall be available for public inspection, but copies thereof shall be made only at the expense of the person requesting the same.
RULE 158.COMPLAINTS. A request for review, investigation or other appropriate action, notwithstanding its form or the designation of the person making its as a complainant, is deemed a complaint. A request for an investigation may be made by the Chief Justice whether or not a complaint has been made.
RULE 159.DUTY OF COMPLAINANT. It is the duty of the person making a complaint, upon request, to supply additional information, including the names and addresses of witnesses and all writing or other evidence in his or her possession concerning the matter, to testify at any investigation, informal hearing, or formal proceeding on the matter and to otherwise assist the High Court in obtaining or securing evidence.
RULE 160.UNWILLINGNESS OF COMPLAINANT TO PROCEED. Neither the unwillingness or neglect of the complainant to proceed, nor a settlement, compromise or restitution, necessarily prohibits the High Court from undertaking or completing an investigation, informal hearing or formal proceeding.
RULE 161.INFORMAL HEARING. At the request of the Chief Justice, a district court judge shall conduct an informal hearing. Strict rules of evidence do not apply. Unless the right to be heard has been waived, the member is entitled to an opportunity to be heard during the hearing, in person and by counsel. If the District Court Judge determines that reasonable cause does not exist for further proceedings, the District Court Judge shall terminate the matter, with a brief written statement of reasons. The Chief Justice, the member and the complainant shall be informed of such action. The District Court Judge may institute further investigation and subsequent informal hearings, or may recommend to the hearing panel consensual discipline or refer the complaint to the hearing panel for the institution of formal proceedings.
RULE 162.FORMAL PROCEEDINGS.The formal proceeding is commenced by the issuance of an Order to Show Cause by the hearing panel directed to the member. The order must specify in concise terms the acts, omissions or facts which constitute the alleged violation or violation.
RULE 163.COMPOSITION OF HEARING PANEL. The Chief Justice shall appoint a hearing panel consisting of an associate justice, a district court judge who did not conduct the informal hearing, and one associate judge. Should a district court judge not be available for the hearing panel, an associate judge may be substituted for him.
RULE 164.APPOINTMENT OF DISCIPLINARY COUNSEL. The hearing panel shall appoint a member of the Bar, who is not involved in any cases or matters with or against the member under investigation, as disciplinary counsel and require him or her to perform the duties of disciplinary counsel.
(a) investigate and prosecute formal complaints when recommended by the hearing panel;
(b) respond to appeals from the imposition of discipline:
(c) investigate and present evidence at hearings on petitions for reinstatement; and
(d) perform such other duties as the hearings panel shall direct.
RULE 166.ANSWER. A written answer to the Order to Show Cause must be filed by the member within twenty (20) days after service of the Order. The answer must contain an address to which all further notices to the member in relation to the proceeding shall be sent, an admission, denial or explanation of the allegations set forth in the Order to Show Cause, and such other matter by way of defense as may be relevant. The time for filing an answer may be extended for good cause shown.
RULE 167.NOTICE OF HEARING. Notice of the formal hearing, either in the Order to Show Cause or by a Notice of Hearing served upon the parties, must be given not less than twenty (20) days before the hearing date, unless a shorter period of time is agreed to by a written stipulation of the parties.
RULE 168.DISCOVERY. Discovery as permitted by the Rules of Civil Procedure, is allowed in formal proceedings. For purposes of discovery, the Disciplinary Counsel is deemed the plaintiff and the member is deemed the defendant. The functions of a trial court in discovery shall be performed by the hearing panel.
RULE 169.TIME PERIOD FOR DISCOVERY. To avoid unnecessary delay, each party shall complete formal discovery within 30 days after service of the Order to Show Cause. The parties shall meet and stipulate to that evidence which either party will voluntarily release. Only after such a meeting shall formal discovery proceedings commence.
RULE 170.DEPOSITIONS. Deposition expenses shall be borne by the party taking the deposition, except for any copy ordered by the opposing party. Except as otherwise stipulated, attendance of the deponent and the production of books, papers or things, shall be compelled by subpoena, and, in the case of the production of books, papers or records, upon the filing of an affidavit or a declaration under penalty of perjury describing them with reasonable certainty and showing good cause for their production.
RULE 171.HOLDING FORMAL PROCEEDING IN ABEYANCE. Upon written motion of the member and for good cause shown, the hearing panel may order the matter before it stayed for such time, and upon such terms, as it deems proper.
RULE 172.RULES OF EVIDENCE. The American Samoa Rules of Evidence shall apply in a formal proceeding, but no error in admitting or excluding evidence shall invalidate a finding of fact, decision or determination, unless the error or action complained of resulted in a denial of a fair hearing.
The member who is the subject of an investigation, informal hearing, or formal proceeding may enter into a proposed stipulation with the District Court Judge in an informal proceeding or with the hearing panel for the disposition of the charges pending. All stipulations pursuant to this rule shall set forth each of the following:
(a) the pending investigation, informal hearing, or formal proceeding involved;
(b) a statement of acts or omissions of the member which are admitted by the member and acknowledged by the member as cause for discipline;
(c) a statement of mitigating circumstances, if any; and
(d) the discipline to be imposed or action to be taken with respect to the member.
(a) private reprimand;
(b) public reprimand;
(c) restriction of practice before the High Court, District Court or Village Courts.
(d) suspension for a period of time;
(e) or any combination of the above; or
Subsections (b) through (e) are considered public discipline.
RULE 176.DECISION. The opinion of the majority of the hearing panel shall constitute the panel’s decision. After a decision is reached it shall be shall be served upon the member and the complainant. The hearing panel shall make its decision in writing. The decision shall contain a brief statement of the proceedings had, findings of fact, and the action taken.
RULE 177.MOTION TO RECONSIDER. With in ten (10) days after service upon a party of the decision, the party may serve and file a written motion in support of or requesting reconsideration in whole or in part of the decision. Within five (5) days after service of the motion, the opposing party may serve and file objections thereto, which objections may be supported by affidavit or declaration under penalty of perjury. Any motion or opposition referred to in this rule shall be presented to and decided by the hearing panel. The ruling of the hearing panel on any such motion shall be in writing and shall be served on the parties.
RULE 178.APPEAL TO THE CHIEF JUSTICE. The member may appeal a decision of the hearing panel imposing discipline by filing a petition for review with the Chief Justice, together with proof of service thereof on both the disciplinary counsel and the hearing panel, within ten (10) days after service of the decision upon him, or if there was a motion for reconsideration, within ten (10) days after service upon him of the decision on the motion. Within twenty (20) days after filing a petition for review the member shall serve on the disciplinary counsel and file with the Chief Justice his brief. Disciplinary counsel shall serve and file a reply brief within fifteen (15) days after service of the member’s brief. The Chief Justice may entertain such oral argument as he deems necessary. The Chief Justice may affirm, reverse or modify the decision, or remand the matter for further proceedings. The Chief Justice may, either on his own or on application by the member, stay imposition of discipline pending his decision on the appeal. The stay may be granted on such conditions as the Chief Justice deems appropriate.
RULE 179.EFFECTIVE DATE OF DISCIPLINE. Imposition of discipline shall be effective immediately after service on the member of the hearing panel’s decision unless a stay has been granted by the Chief Justice, in which case imposition of discipline shall be effective immediately after service of the Chief Justice’s decision on the member.
RULE 180.NOTICE OF PUBLIC DISCIPLINE. On or after the imposition of discipline, the hearing panel or the Chief Justice, as may be appropriate, shall transmit written notice of any public discipline to all justices and judges of the Judiciary of American Samoa and shall cause the same to be published in a newspaper of general circulation. A suspended or disbarred member, or one restricted to practice as provided in 175(c) HCR shall promptly notify his clients of the discipline imposed.
RULE 181.REINSTATEMENT. A person who has been suspended for more than 3 months may not apply for reinstatement until the period of suspension has terminated. A person who has been disbarred after hearing or by consent may not apply for reinstatement until the expiration of at least 3 years from the effective date of the disbarment or surrender of license. The petition for reinstatement shall be verified and contain the following:
(a) copy of the decision imposing discipline;
(b) specific reasons why reinstatement should be granted; and
(c) any other evidence showing that the petitioner is fit for the trust, confidence, and professional responsibilities reposed in member of the Bar by the High Court and the people of American Samoa.
The petition shall be accompanied by a filing fee of $100. The Chief Justice after review of the petition and recommendation by the Standing Committee, may deny, grant, or conditionally grant the petition. If the petitioner is found unfit to resume the practice of law, the petition shall be denied. If the petitioner is found fit to resume the practice of law, he shall be reinstated. But such reinstatement may be made condition upon the payment of all or part of the costs of the proceeding, and upon the making of partial or complete restitution to parties harmed by the petitioner’s misconduct which let to his suspension or disbarment.
RULE 182.INCAPACITY OF ATTORNEY OR PRACTITIONER. Proceedings to determine whether or not a person engaged in the practice of law in American Samoa has because of mental or physical infirmity or illness or because of addiction to drugs or intoxicants become incapable of devoting the time and attention to and providing the quality of service for his law practice which is necessary to protect the interest of clients, shall be conducted substantially in accordance with these rules. However, no discipline is to be imposed. The decision to be reached by the Chief Justice is whether to leave the member in active status or to place the member on inactive status until the member is determined competent to once again resume active status. All proceedings and reports in such matters are confidential and not open to the general public. At any time after the member has been placed on inactive status, the member may petition the Chief Justice to be replaced on active status.
RULE 183.IMMUNITY. Disciplinary counsel and the judges and justices sitting at an informal or formal hearing brought under these rules have absolute immunity from liability for any conduct performed in the course of official duties. The complainant is not liable for institution of disciplinary proceedings except on a showing of both falsity of statements made by the complainant and malice of the complainant.