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Court asked to vacate its order in tax refund case

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THE law firm replacing the Attorney General’s Office in representing the government of Guam in the tax refund class action suit in the District Court of Guam is asking the judge to vacate her latest order because it was issued “prematurely” since they had not finalized a contract on the agreement.

In a request filed last week for the court to vacate its order of substitution of counsel, Attorney Michael Pangelinan wrote that his firm Calvo, Fisher & Jacob LLP and the defendants in the case haven’t signed an agreement engagement yet, despite Assistant Attorney General Kenneth Orcutt previously informing the court that a contract was in the process of being finalized and signed.

Judge Consuelo Marshall issued her order on March 28, granting Orcutt’s motion for the Attorney General of Guam to withdraw and substitute attorneys from the Calvo, Fisher & Jacob firm as counsel to the government of Guam in the case.

Pangelinan explained that neither the Calvo firm nor the Governor’s Office have given its authorization or consent for the Calvo firm to enter an appearance on behalf of the defendants in the case.

“We believe that the court issued the substitution order prematurely,” he said, arguing for the order to be void because it was based upon a “mistake of fact.”

Until the contract is finalized, Pangelinan explained, his firm will not enter the case and the AG’s Office will continue to represent GovGuam.

“The Calvo firm cannot appear as counsel of record for the defendants until a) the Calvo firm executes an engagement agreement with the defendants; and b) the parties and their counsel execute a substitution of attorneys,” Pangelinan wrote. “Until then, the Attorney General of Guam is still counsel of record and should continue as counsel of record for the defendants.”

The AGO, meanwhile, supported the Calvo firm’s motion to vacate the order, in a notice filed on Friday.

“At the time the Attorney General filed the Motion For Order Allowing Withdrawal of Attorneys For Defendants, the undersigned understood that the signing of the contract authorizing Calvo, Fisher & Jacob to represent defendants was imminent,” wrote AAG Orcutt. “However, because the contract had not been signed, the undersigned submitted a proposed order by which the court would merely be authorizing the filing of a substitution of attorneys for defendants as opposed to an order actually substituting attorneys.”

Orcutt wrote that he regrets any confusion resulting from the motion to withdraw but noted that the AGO supports the Calvo firm’s motion to vacate the court order.

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