Private attorney David Vargas appointed as acting Public Defender

Pago Pago, AMERICAN SAMOA — Long time local private attorney David Vargas has been appointed as Acting Public Defender.

The appointment was effective July 12, 2022.

He confirmed this in a brief interview with Samoa News over the phone.

“I have been appointed as Acting Public Defender, until they find a replacement before the end of the year, then I’ll be gone,” said Vargas.

Earlier this month the former Public Defender Mike White resigned from office after working there for 11 years and four of these years as a Public Defender.

White told Samoa News in earlier interviews that he had submitted his resignation letter and he was the only attorney working for the PD’s office after the departure of the Assistant Public Defender, Ryan Anderson at the beginning of this year.

Varga said the appointment will take a toll on his work as a private lawyer. “I’m shutting [my office] and will take on only essential cases,” he said.

Adding that he will be working out of the PD’s office soon. Vargas refused to confirm who made the appointment when asked by Samoa News.

In the meantime Samoa News reached out to the Governor’s office for comments but there has been no response.

Calls to the Chief of Staff Tauapai Laupola were not answered since Monday.

Two weeks ago, the former Public Defender Michael White was found guilty of contempt of court and sentenced him to one-year probation under special conditions, including representing defendants in certain pending criminal cases.

White, along with his defense attorney, Marcellus Talaimalo Uiagalelei appeared before Acting Associate Justice Elvis P. Patea for the court to issue its decision on the matter after the court issued an Order to Show Cause (OSC) on why White shouldn’t be held in contempt of court for not fulfilling his duties as an officer of the court.

Associate Judges Su’apaia J. Pereira and Paepae I. Fai’ai assisted Patea on the bench.

BACKGROUND

During sentencing of White, Patea issued a verbal decision and outlined the public defender’s responsibilities, which include representing as counsel without charge individuals arrested for criminal, felony and misdemeanor and immigration offenses including juvenile petitions.

Regarding the position of public defender, the Fono had enacted ASCA 4.0320 (b) stating that upon appointment by the governor and confirmation by the Fono, the public defender’s term is 4 years, “and shall serve until his successor is appointed and qualified.”

 “It is clear to us that our constitution is extremely protective of a person’s rights to counsel and it’s also clear to us that our laws provide everything to make sure that the accused person who can not afford an attorney will never be left without an attorney.

 “The fono mandates that the public defender shall serve until the successor is appointed and qualified and that means the territory shall never be without a public defender,” he said.

White’s decision to resign from his post was born out of desperation and extreme frustration, Patea noted.

 “We recognize the respondent’s concern for his physical and mental health and also his care for his family.”

However, the move by White to terminate his post and impact the rights of his clients does not sit well with the court.

Patea recalled that White argued that once he resigned as public defender he could no longer appear and represent his clients including those having cases scheduled for hearing on Tuesday, July 5.

White “believes that the entity known as Public Defender’s office is the attorney of record and not him personally,” Patea continued. “He also believes the entity is the licensed attorney.

“This is simply not true,” he stated.

The court pointed out that all attorneys, no matter how they are employed are bound by a code of ethics and regulation in the jurisdiction that allows them to practice their craft — whether in public, an entity or private firm, while in public may have its own employment regulation.

The court went on to say that a lawyer has additional professional responsibility that is dictated by the authority that licensed the lawyer in order to practice law. 

 “Here in American Samoa, the Chief Justice is that authority.

 “He has the authority to admit an attorney to practice law in the territory and to adopt rules of professional conduct,” Patea said.

High Court Rule 104 mandates that, “the conduct of an attorney and legal practitioner shall be governed by the American Bar Association’s model rules of professional conduct.

 “Violation to the model rules shall result in appropriate disciplinary action.

 “Upon termination of representation, a lawyer shall take steps to notify his clients and wait until the succession attorney is appointed.

“It’s clear to us respondent has failed to comply with requirements and was unable to fulfill his duties as an officer of the court,” Patea stated.

For this failure, “the court can impose fine or a term of imprisonment,” he said. “We find that the respondent’s conduct ending his employment and abandoning his clients has obstructed the administration of justice and therefore we find and hold him in contempt of court, pursuant to ASCA 3.0203.”

Patea then went to sentencing.

 “Having considered evidence and submission of parties, the court orders that the imposition of sentence at this time is suspended, and White is placed on probation for a period of one year.

 “During probation, respondent will remain law abiding and comply with all court orders including appointments to represent defendants in certain pending criminal cases.

 “That is the court decision,” he affirmed.