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Objection and Brief In Opposition
Cherokee Press Association
IN THE DISTRICT COURT OF THE
CHEROKEE NATION
PAULA HOLDER, et al.
Plaintiffs,vs.
SWIDLER & BERLIN, Chartered,
Defendant.Case No. DC 97-103
OBJECTION AND BRIEF IN OPPOSITION TO SWIDLER & BERLIN’S
MOTION TO DISMISS SECOND AMENDED PETITIONComes now Plaintiff, objects to Defendant’s Motion to Dismiss Second Amended Petition and submits the following brief in opposition.
Defendant Swidler & Berlin accuse Plaintiff at page of 3 of its Brief of "blatantly misrepresenting the facts" in regard to Plaintiff’s allegation that Defendant overcharged the Cherokee Nation although it is undisputed that Defendant’s contract dated September 15, 1997 states it will charge $300 per hour, however, it charged $325 per hour since September 1996. That is not misrepresentation of the facts and is certainly not "blatant" misrepresentation of the facts. Counsel for Defendant and Defendant may take notice, if it is unaware, that in courts of law "spin doctoring" and P.T.Barnum’s adage that "if you scream something loud enough and long enough some one will believe you" have limited utility. Swilder and Berlin can cry wolf too often. Defendants are wrong and they know it, otherwise simple reliance on this Court’s logic and review of the evidence and legal arguments would be sufficient in its briefs.
The ultimate determination of whether there is a Tribal cause of action lies with the Tribal Court. Hinshaw v. Mahler, 42 F.3d 1178 (9th Cir. 1994), cert. denied, 513 U.S. 988, 115 S.Ct. 485, 130 L.Ed. 398 (1994).
Plaintiff adopts and incorporates her previous briefs filed herein.
Proposition One: Swidler & Berlin Had Been Given Direct Notice of Alleged Criminal Diversion of Funds for Payment of Its Attorneys’ Fees, and Swidler & Berlin had a Duty of Due Diligence to Determine Its Scope of Engagement and the Source of Those Funds.
A. Swidler & Berlin had Explicit Notice Regarding the Illegality of the Use of Federal Funds to Pay Outside Law Firms and the Illegality of the Payment of Funds not Properly Allocated.
On February 25, 1997, a Search Warrant was served upon the Executive Branch, seeking in particular documents pertaining to a possible criminal diversion of Cherokee funds to pay the fees of an outside law firm. That Warrant and its supporting Affidavit, attached hereto as Exhibit "A," discuss in detail the criminal nature of diverting federal funds restricted for use by the Cherokee Nation for the payment of outside lawyers and the criminal nature of utilizing Tribal funds for matters not authorized by the Tribal Council.
On April 11, 1997, a Complaint and Information was filed in the Tribal Court wherein Joe Byrd was charged with another diversion of Cherokee Nation funds, this time for the payment of $64,989.03 to Swidler & Berlin without authority from the Tribal Council. A copy of that Complaint and Information are attached hereto as Exhibit "B." Again, these document discusses in detail the criminal nature of the activities alleged, stating that the funds used to pay Swidler & Berlin had come from the Law and Justice Department of the Cherokee Nation, which lacked the funds to support such a payment in its budget, that the payment had not been authorized by the Tribal Council, and that there was no contract with the Cherokee Nation creating a relationship with Swidler & Berlin.
The obvious message Swidler & Berlin cannot deny having received regarding the Search Warrant and the filing of criminal charges against Byrd was that it may be the recipient of some or all of these criminal funds. The Search Warrant and its supporting Affidavit were discussed by the Swidler & Berlin and Chief Byrd and Byrd’s staff on February 28, 1997. See, February 28, 1997 entry on "Search Warrant Issue", Swidler & Berlin Invoice dated March 31, 1997, attached hereto as Exhibit "C." The Complaint and Information was discussed with the Swidler & Berlin on the day it was filed. See, April 11, 1997 entry on "Search Warrant Issue", Swidler & Berlin Invoice dated May 28, 1997, attached hereto as Exhibit "D." All of the documents related to these matters discuss in detail the criminal natures of the diversion of Cherokee Nation funds held in restricted federal trust for payment to the outside law firm of Pezold, Richey, Caruso & Barker, of payment of Swidler & Berlin in the amount of $64,984.03 in the absence of Tribal Council authority, and of the creation of a legal services relationship without benefit of a written contract with the Cherokee Nation. See, Exhibits "A" and "B."
It should be further noted that 18 U.S.C. § 1163 provides, "[w]hoever . . .. willfully permits to be misapplied, any of the moneys, funds, credits, goods, assets, or other property belonging to any Indian tribal organization or intrusted to the custody or care of any officer, employee, or agent of an Indian tribal organization or Whoever, knowing any such moneys, funds, credits, goods, assets, or other property to have been . . . misapplied or permitted to be misapplied, receives, conceals, or retains the same with intent to convert it to his use or the use of another . . ." shall be fined or imprisoned not more than five years. In addition to its duty to the Cherokee Nation as its client, the Swidler & Berlin had a federal statutory duty to inquire as to the lawfulness of the funds it received.
Based upon this knowledge Swidler & Berlin cannot now deny that its relationship with Principal Chief Byrd was legally questionable.
B. Swidler & Berlin’s Client is the Cherokee Nation, Not Principal Chief Joe Byrd and Not the Cherokee Nation Executive Branch
Contrary to the Defendant’s contentions, the law firm of Swidler & Berlin represents the Cherokee Nation, not Principal Chief Joe Byrd, and not the executive branch of the Cherokee Nation government. The belated contract of September 15, 1997 so recites: "This Agreement, is made and entered into this 15th day of September, 1997, by and between the Cherokee Nation of Oklahoma and Swidler & Berlin." See, September 15, 1997 Agreement, attached hereto as Exhibit "E" (emphasis added). It is the Cherokee Nation’s treasury that paid the Plaintiff’s billings. Plaintiff Holder does not contest that the Delaware Tribe issue and the Arkansas River Riverbed issue were within the scope of the firm’s engagement and that actions taken with regard to those issues inured to the benefit of the Cherokee Nation. However, Swidler & Berlin failed to inquire as to its scope of engagement and the legitimacy of payments of certain fees related to other issues after it had notice that there was substantial conflict within the Cherokee Nation, particularly between the branches of the Cherokee Nation government.
Rule 1.13 of Oklahoma's Rules of Professional Conduct, 5 O.S. Ch.1, App. 3-A, which adopts in substantial part the ABA Model Rules of Professional Conduct, specifically addresses the representation of organizations: Rule 1.13. Organization as Client
(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.
(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as reasonably necessary in the best interest of the organization.
(d) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when it is apparent that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing.
The comments to Rule 1.13 clearly state that the Rule applies to representation of governmental organizations, and goes on to state that "[t]here are times when the organization's interest may be or become adverse to those of one or more of its constituents. In such circumstances the lawyer should advise any constituent, whose interest the lawyer finds adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation . . . and that discussions between the lawyer for the organization and the individual may not be privileged." See also, Mead Data Control v. U.S. Department of Air Force, 566 F.2d 242, 253 (D.C.Cir. 1977) (where the client is an organization, the privilege extends to those communications between attorneys and all agents or employees of the organization who are authorized to act or speak for the organization); and Natta v. Hogan, 392 F.2d 686 (10th Cir. 1968).
Although the September 15th Agreement does indeed recite that Joe Byrd "acts for and on behalf of the Cherokee Nation," pursuant to Rule 1.13 and its comments at that point in time that Swidler & Berlin learned that the Principal Chief was under investigation for the improper use of Cherokee Nation funds, and at that point in time that the firm learned that funds from which it was being paid were improperly diverted, allegedly by Joe Byrd or one of his supporters, the firm could no longer regard the Chief or any other similarly involved party as a duly authorized "constituent" whose interests were not adverse to those of the firm's actual client, the Cherokee Nation. Further, at the point in time that the Chief’s and the Cherokee Nation’s interests diverged, communications between the Chief and Swidler & Berlin could no longer be protected by the attorney-client privilege. Rule 1.13 explicitly requires an attorney under those circumstances to clarify the nature of the representation, the identity of the client, and the identity of the individuals authorized to speak for that client. Swidler & Berlin did none of these things and, when asked to examine that issue at his February 2, 1998 Deposition, James Hamilton definitively refused:
Q: If the Tribal Counsel were to pass a resolution or a law commanding that a certain matter be done by the Cherokee Nation, would you, as a lawyer for the executive, be empowered to go against that law passed by the Tribal Counsel?
A: You know, Counsel, that’s a hypothetical and, you know, you can ask me about facts. I’m not going to sit here and speculate about hypothetical situations.James Hamilton deposition, beginning at Page 15, Line 11. Exhibit "F."
Accordingly, Counsel for the Defendant Holder restructured his question to reflect facts, asking:
Q: . . . What position were you asked to take with regard to the Shawnee matter and their independence from the Cherokee Tribe?
A: Well, let me answer it this way: I’m not going to tell you what they asked me to do because that’s a privileged conversation. I will tell you that regarding this matter and everything else I have done for the Cherokees, I did it with authorization from members of the executive branch.Hamilton deposition, beginning at Page 17, Line 3, and continuing, with discussions between counsel, until Page 18, Line 21.
After Mr. Hamilton acknowledged that he was familiar with the Resolution passed in 1996 by the Tribal Council which supports the Shawnees’ independence from the Cherokee Tribe, Hamilton deposition, Page 19, Lines 10-20, Mr. Shipley asked:
Q: Have you ever been asked to take action in opposition to the language of this resolution?
Mr. Lipps: Same objection. Let me confer with my client as to whether a privilege should be asserted.
A: I’m not – I believe a privilege should be asserted. I do assert it.
Mr. Lipps: All right.
A: I’m not going to answer the question.Hamilton deposition, page 20, lines 14-23.
After showing Mr. Hamilton his firm’s billing records regarding the “Shawnee matter” for April and May of 1997, bills which indicated that Swidler &Berlin hadd billed the Cherokee Nation for certain legal work on this subject, Mr. Shipley asked:
Q: If the Cherokee Executive asked you to oppose the BIA’s separate recognition of the Shawnee Tribe, would you believe yourself restricted from doing so based upon this document?
A: Well, that’s a hypothetical –
Mr. Lipps: Same objection as to the form of the question as hypothetical.
A: Yes, it’s a hypothetical. I don’t think I have to answer hypothetical questions.
Q: (By Mr. Shipley) You refuse to answer that question?
A: Yes.Hamilton Deposition, Page 24, Lines 2-13.
Pursuant to the comments to Rule 1.2 of the Oklahoma Rules of Professional Conduct, "[a] lawyer may not continue assisting a client in conduct that the lawyer originally supposes is legally proper but then discovers is criminal or fraudulent. Withdrawal from the representation, therefore, may be required." Adding strength to this requirement are the comments from Rule 1.13 which state that "[w]hen constituents of the organization make decisions for it, the decisions ordinarily must be accepted by the lawyer even if their utility or prudence is doubtful. . . . However, different considerations arise when the lawyer knows that the organization may be substantially injured by the action of a constituent that is in violation of law. In such circumstance, it may be reasonably necessary for the lawyer to ask the constituent to reconsider the matter. If that fails, or the matter is of sufficient seriousness and importance to the organization, it may be reasonably necessary for the lawyer to take steps to have the matter reviewed by a higher authority in the organization."
Swidler & Berlin never sought out or received confirmation from the Cherokee Nation Tribal Council that its continued representation of the Cherokee Nation through information and direction provided by the Chief was appropriate or in the best interests of the Nation. In point of fact, at some point in time Swidler & Berlin was advised that the Tribal Council had enacted a Resolution which stated Cherokee Nation policy directly contrary to that communicated to them by the Chief regarding the Shawnee issue. Clearly, the Swidler & Berlin was under an obligation at that time to inquire as to the propriety of their communications with the Chief, and to reconfirm the nature of their representation and the authorized representatives of the Cherokee Nation through which they would receive directions, orders and payment.
In his February 2, 1998 deposition, Mr. Hamilton attempts to defend the ethically indefensible by redefining the client with whom he has contracted to mean not the Cherokee Nation but Joe Byrd alone: "I consider the Cherokee Nation to be my client, and more specifically I was retained by the executive branch and I consider it to be my client" (Page 10, Line 25 through Page 11, Line 3); "I viewed my client was the executive branch and I was not going to provide information directly to a council member" (Page 63, Lines 1-6); "[a]nd I, if you’re going to be technical about it, I think my client is really the executive branch" (Page 15, Lines 8-10); and "I think that the chances of a law firm that has been representing the executive branch …" (Page 75, Lines 21-23).
In the context of representing the Cherokee Nation, the issue of an internal, inter-branch, constitutional struggle, as denoted by Swidler and Berlin’s assigning the name "Search Warrant Issue" to this new billing project beginning in February, 1997, Swidler & Berlin was undeniably on notice that it should review the organic document of the Cherokee Nation, the Cherokee Nation Constitution, as well as the Cherokee Nation Statutes to determine whether Swidler and Berlin could represent the executive branch against one or both of the other branches and expect the Cherokee Nation to pay for it.
In the course of ascertaining the propriety of Principal Chief Byrd’s requests for legal services, Swidler & Berlin would have discovered that the Chief did not have the authority to direct the law firm to lobby Congress and administration agencies for the Bureau of Indian Affairs to take over Tribal law enforcement. Swidler & Berlin would have further learned that, contrary to their representations to Congress and administrative agencies, the Tribal Council expressed no fear and there was no imminent threat of personal harm with regard to the actions of the Cherokee Nation Marshal Service led by Patrick Ragsdale. Causing the Bureau of Indian Affairs to unilaterally withdraw the Cherokee’s right to enforce its own laws was in fact an attack on Tribal sovereignty, and an action critically damaging to the Cherokee Nation, the Plaintiff’s client.
Further, Swidler & Berlin was not properly authorized to assist the Chief in resisting the other branches of the Cherokee Nation. It appears that Swidler & Berlin has charged the Nation for activities in response to matters raised in the Judicial Appeals Tribunal suit against the Bureau of Indian Affairs challenging its takeover of Tribal law enforcement. See Swidler and Berlin Invoices dated August 11, 1997 and September 24, 1997, attached hereto as Exhibit "H." In point of fact, in the record before this Court Swidler & Berlin has lambasted and attacked the Judicial Branch of its client, the Cherokee Nation, in response to a Tribal lawsuit brought by Tribal Council members. It has, without justification, turned on its own client. The Cherokee Nation is not Joe Byrd; Byrd is only an elected official within one of three equal branches of the Cherokee Nation government. Any assertion that Swidler & Berlin represented only the executive branch of that government is belied by the contracts and engagement letters made of record herein as well as Mr. Hamilton’s own statements. The documents executed between Swidler & Berlin and the Cherokee Nation refer solely to the Cherokee Nation as the client, and, therefore, the party to whom any attorney-client privilege attaches.
As was discussed previously, on February 28, 1997, the Plaintiff’s Invoice indicates that it discussed the Search Warrant issue with members of Chief Byrd’s staff. On April 11, 1997, Plaintiff’s Invoice reflects that it discussed Principal Chief Joe Byrd’s criminal charges with Byrd’s staff. See, Exhibits "A", "B", "C" and "D". This was the same day that Byrd was charged in Tribal Court with diversion of Nation funds to pay Swidler & Berlin some $64,984.03. These discussions provide graphic and undeniable evidence that Swidler & Berlin had information which indicated that it was receiving funds that had been alleged to have been criminally diverted, perhaps at the direction of Principal Chief Joe Byrd, from the Cherokee Nation. Both matters unquestionably gave rise to a duty on the part of Swidler & Berlin to determine the precise extent of its engagement, the source of funds for its payment and to determine the authority of the Principal Chief to engage Swidler & Berlin on projects. These issues further alerted Swidler & Berlin as to other possible conflicts of interest because the second criminal charge filed against Byrd concerned the diversion of Tribal funds to the Democratic National Committee. See Complaint and Information, attached hereto as "I." James Hamilton in fact testified at deposition that he represented Don Fowler, former head of the Democratic National Committee ("DNC"), and Swidler & Berlin had even more direct knowledge of the illegality of the Chief’s diversion of funds through its efforts, performed on behalf of the Cherokee Nation, to recover the funds connected to Kim Teehee’s work for the DNC. In his deposition Mr. Hamilton acknowledged that Swidler and Berlin’s Invoice dated June 30, 1997, attached hereto as Exhibit "J," reflect that firm member Mr. Pipestem participated in a meeting with the general counsel for the DNC regarding a refund of the Cherokee Nation funds associated with those services. See Hamilton Deposition excerpts, Page 38, Line 13 through Page 40, line 18, attached hereto as Exhibit "F."
Proposition Two: The Cause of Action to Recover Illegally or Improperly Paid Funds is Vested With the Cherokee Nation as an Entity.
The Cherokee Nation may recover attorneys’ fees paid by the Principal Chief illegally or without authorization. Swidler & Berlin may be entitled to payment for work performed at the direction of Principal Chief Joe Byrd, but where the work was not authorized by the Cherokee Nation as an entity, Joe Byrd may be personally liable for the expenses incurred therefrom, but the Cherokee Nation is not, and the Cherokee Nation is entitled to recovery of all illegally obtained Cherokee Nation funds. Council member Holder is under the same obligation as the executors in American National Bank and Trust Company of Shawnee v. Clarke & Wagner, Inc., 692 F.2d 61 (Okl. App. 1984), cert. denied, November 20, 1984, wherein the Oklahoma court held, "If they had not appealed and obtained a modification of such a [attorney] fee they would have been derelict in their fiduciary duties. These duties also require them now to seek reimbursement of the excessive fee." American National Bank goes on to hold that:
Attorneys argue that in the absence of fraud, mistake, or duress a party who pays money voluntarily cannot recover those funds. Clarke and Van Wagner have cited to no cases where an attorney who receives an unreasonable and excessive fee is allowed to retain that fee. The majority of jurisdictions require a forfeiture of attorneys' fees if those fees are determined excessive. See, e.g., McInerney v. Massasoit Greyhound Association, 359 Mass. 339, 269 N.E.2d 211 (1971). In In Re Estate of Edwards, 41 Misc.2d 703, 246 N.Y.S.2d 489 (1963), the court ordered a return of attorneys' fees where those fees had been challenged and determined excessive.
Indeed, the courts have even required an attorney to return part of a fee despite the client's consent to the amount. Matter of Cohen, 169 A.D. 544, 546-47, 155 N.Y.S. 517, 520 (1915). In Rice v. Perl, 320 N.W.2d 407, 411 (Minn.1982), the Minnesota Supreme Court determined that forfeiture of a fee may occur irrespective of the intent and motives of the attorney.
The cause of action for recovery of excessive or unauthorized attorney’s fees is well established.
Proposition Three: Swidler & Berlin Has Breached a Fiduciary Duty to the Cherokee Nation.
As restated by the court in American National Bank, "The rule that a person cannot recover money which he voluntarily paid cannot be applied to the fiduciary relationship between attorney and client." This fiduciary duty of the attorney to the client is not limited to the context of estate administration although the parallel is clear that Council member Holder is a caretaker of the estate and finances of the Cherokee Nation. The attorney fiduciary duty has been recognized in banking and Federal Deposit Insurance Corporation cases. The Tenth Circuit in FDIC v. Clark, 978 F.2d 1541 (10th Cir. 1992) observed: "the FDIC, as successor to an insolvent financial institution filed an action against legal counsel for professional negligence and breach of fiduciary duties, in connection with the firm’s representation of the bank." The Tenth Circuit then held that, "the bank was the client, not the officers of the bank." The Tenth Circuit in Clark at 978 F.2d 1541 (10th Cir. 1992), citing FDIC v. O’Melveny & Meyers, 969 F.2d 744 (9th Cir. 1992), clearly identified the duty that Swidler & Berlin herein owes the Cherokee Nation as an entity. That the firm had a duty to make a "reasonable independent investigation" in order to detect and correct false information in the materials it reviewed; and that, in the face of wrongdoing by bank officers, the attorneys were not justified in assuming that the facts presented by those officers were truth, since an attorney was required to make a "reasonable effort" to independently verify facts on which an opinion is based.
This fiduciary duty extends to the scope of engagement. The Plaintiff’s fiduciary duty to the Cherokee Nation is even clearer in the historical and legal context of federal regulation of attorney contracts with Indian tribes. 25 U.S.C. §§ 81 creates a private cause of action against any law firm which represents a tribe without a contract approved by the Bureau of Indian Affairs which includes in advance identification of scope of work, billing schedule and rates. In the instant case, Swidler & Berlin maintains its engagement was based on a letter faxed to a Joe Byrd subordinate in September of 1996 which only identified Plaintiff’s billing rate. After Swidler & Berlin received unequivocal notice that there was internal conflict regarding the payment of its fees, it had the affirmative and fiduciary duty to its client, the Cherokee Nation, to determine, through communications with the Tribal Council, the policy and law-making arm of the Tribe, its scope and terms of engagement. Swidler & Berlin wholly failed to do so.
Proposition Four: "Apparent" Authority Does Not Apply to Governmental Entities.
"Apparent" authority cannot be ascribed to representatives of governmental entities. It is widely recognized that governmental agents may only carry the actual power granted them through constitutional or statutory authority. "Public agents have no power to bind the state or any of its subdivisions by apparent authority in excess of their actual authority". General Motors v. Oklahoma county Board of Equalization, 678 P.2d 233, 236 (Okla. 1983) (denying tax exempt status to General Motors plant in Oklahoma City, stating that agency of state which promised such status was incorrect in its interpretation of the law, and that General Motors could not rely on agency representations if outside the scope of the agency's actual authority); Boren v. Burgess, 97 F.Supp. 1019 (E.D. Ok. 1951) (transfer of Indian lands must comply with federal statute irrespective of the real or apparent authority exhibited by the government or an Indian grantor). Thus once a lawyer undertakes the representation of a governmental entity, it is the lawyer's obligation to become familiar with the limitations placed upon the entities' officers and agents. In this case even if the Cherokee Nation were an Oklahoma corporation, "apparent" authority could not apply to the Defendant law firm once it reviewed the February 25, 1997 Search Warrant in February of 1997 because that document put them on notice of the limits of the Chief's authority. "Apparent" authority exists only to the extent that it is reasonable for a third person dealing with that agent to believe that the agent is authorized. Stephens v. Yamaha Motor Co., Ltd., Japan, 627 P.2d 439 (Okla. 1981); Wheeler v. Puritan Ins. Co., 720 P.2d 729 (Okla. 1986); and Southwestern Bell Media, Inc. v. Arnold, 819 P.2d 293 (Okla. 1991). "Apparent authority and its effect vanish…in the presence of actual knowledge of the third party as to the real scope of the agent's authority, or when the former has knowledge of facts which would put him upon inquiry as to the actual warrant of the agent." See, In re Branding Iron Motel, Inc. v. Sandlian Equity, Inc., 798 F.2d 396 (10th Cir. 1986) (it was unreasonable for third party to rely upon and to fail to inquire as to an agent's authority to speak for the principal corporation when it was aware that the agent, the president of the principal corporation, was improperly using corporate property to secure a personal debt), citing Portland v. American Surety Co., 153 P. 786, 787 (Or. 1915). It is difficult to conceive how a sophisticated Washington, D.C. law firm could have failed to at least raise its eyebrows when its alleged contact for the Cherokee Nation issued instructions directly contrary to Resolutions passed by the Nation's sole legislative body, when the Tribal Prosecutor filed charges against that contact for the diversion of Tribal funds to pay the Plaintiff, and when the judicial body of the Cherokee Nation issued orders for his arrest. Clearly Swidler & Berlin had a duty to ascertain the scope of the authority held by the Principal Chief, yet failed to do so. See, for example, Sine Enterprises v. Jaguar Credit Corporation, 1998 WL 88156 (10th Cir. 1988).
Proposition Five: Public Policy evidenced in Oklahoma permits Holder a Cause of Action
As argued in earlier briefs, public policy, as evidenced in federal and state law, has promoted a cause of action to hold governments fiscally responsible. Attached as Exhibit “K” is an article from the Muskogee Phoenix describing the successful prosecution of a taxpayer’s law suit under Oklahoma law in which the taxpayer received one-half of a $2.7 million judgement. The similar public policy which should be recognized by this Court in the instant case is Council member Holder should have the same opportunity, although she will not receive any portion of a settlement, to enforce fiscal responsibility of the Cherokee Nation administration.
CONCLUSION
Swidler & Berlin was hired by and has continued to receive payments from the Cherokee Nation. The Cherokee Nation, not Principal Chief Joe Byrd nor the executive branch, is its clients. Swidler & Berlin was under a duty, by any standard applied, to confirm the nature of its representation and to ascertain the proper representatives of the government it served. Swidler & Berlin was placed on notice as early as February 28, 1997 that its Cherokee Nation contacts, Principal Chief Joe Byrd and his supporters, were under scrutiny for improper conduct, conduct which if true caused damage to the Cherokee Nation as whole. Swidler & Berlin also learned that some of its actions ran directly against policy stated by the legislative branch of the Cherokee Nation. Turning a blind eye to these matters, Swidler & Berlin continued to communicate with those parties and continued to take the Nation’s money, never once attempting to gain assurances regarding the propriety of that ongoing relationship from any other branch of the Cherokee Nation government. Representatives of the Cherokee Nation Tribal Council, the branch of government with the constitutionally-imposed obligation to ensure the Nation’s fiscal stability, now seek redress in the Tribal Court from those who may have received funds improperly diverted or improperly expended.
Defendant’s Motion to Dismiss the Second Amended Petition should be denied.
Submitted this ___ day of March, 1998.____________________
Chadwick Smith
OBA # 8312
P.O. Box 9192
Tulsa, OK 74157-0192
(918) 446-4601
Fax (918) 227-1588CERTIFICATE OF SERVICE
I, the undersigned, do hereby certify on the __th day of March, 1998, a true and correct copy of the above and foregoing document was mailed by first class mail to the persons listed below._____________________________
Chadwick SmithTim Baker
303 West Keetoowah
Tahlequah, OK 74464James Hamilton, Andrew L.Lipps, Wilson K. Pipestem
Swidler and Berlin
3000 K. Street, NW Suite 3000
Washington, DC 20007James J. Proszek
Gourley and Proszek
2642 East 21st Street, Suite 296
Tulsa, OK 74414-1740Robert Jenkins
P.O. Box 362
Jay, OK 74346
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