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High Court rules Barry Rose and MWS Rose can continue to represent Aoe’e

Aoe’e Adolfo Montenegro [SN file photo]

Based on a High Court ruling, local attorney Barry Rose and the law firm Mooney Wieland Smith & Rose PLLC (MWS Rose) can continue to represent Aoe’e Adolfo Montenegro, who is suing his former employer, Bluesky Communications.

The court’s decision was handed down last October, after AST Telecom LLC (ASTT), dba, Bluesky Communications filed a motion to disqualify Rose and MWS Rose from representing Aoe’e, in his twenty-five count complaint against ASTT and its owner, eLandia International and two defendants, who are based in Spain.

Aoe’e and his company ACMA Management Consulting Inc., filed the lawsuit last May and six causes of action for the lawsuit are against ASTT, which along with the rest of the defendants were represented by RDA Law Firm American Samoa.

Rose was the main partner in the law firm of Rose, Joneson & Vargas (RJV) until its merger with an Idaho law firm, creating MWS Rose.

Rose and RJV had represented ASTT (Bluesky) for many years.

RDA Law Firm argued that MWS Rose representing the plaintiff is prohibited by the American Bar Association’s Model Rules of Professional Conduct (MRPC) as it’s clearly a conflict of interest.

The court’s 34-page decision, signed by Chief Justice Michael Kruse and Associate Judges Fa’amausili P. Pomele and Muasau T. Tofili, summarized the Aoe’e complaint, the several motions already filed in court on the case, including the motion to disqualify Rose and the MWS Rose Firm.

The court said this case, as both parties argued during the hearing, resonates in a jurisdiction with a small bar association and a similarly small core of attorneys.

It also pointed out, “…the appearance of impropriety is no longer the standard for motions to disqualify attorneys under MRPC.”


Regarding Rose’s role as a founding officer and president of ASTT, the judges said ASTT seemed to include these connections to emphasize Rose’s responsibility to protect the company’s confidential information.

In those capacities, the court points out that Rose’s time in a position of authority at ASTT “did not overlap with any of the actions the company took that are relevant to the present lawsuit.”

According to the court, Rose resigned as ASTT president and as trustee of the company’s 401K Profit Sharing Plan in April of 2008 and Aoe’e took over as CEO. Rose ceased all involvement in management, business decisions, and day-to-day operation of ASTT and his “past role as an investor” ended in 2008.

Therefore, said the court, the decisions Rose made, as president, have no bearing on the issues in this case.


“On the surface, it would seem clear that after more than a decade of legal representation for a myriad of legal issues, Rose and his law firm should be disqualified,” the judges wrote. “However, upon closer inspection of the evidence before us, we cannot find that the competing interests weigh in favor of disqualification.”

According to the judges, whatever general knowledge of ASTT’s policies and practices Rose “may have gleaned as their attorney over the years, we find no evidence that they include specific facts relevant to the matter in question.”

The judges said ASTT did not meet its burden of establishing a substantial relationship between prior matters for which Rose served as an attorney for ASTT and the instant matter, or that confidential information that would give plaintiffs in this case an advantage has been passed on to Rose or MWS Rose law firm.

The judges also state that Rose has never been house counsel for ASTT, no matter how many matters he and RJV represented ASTT for, which is a significant difference because RJV did not have “management supervision of the legal aspects of every transaction” of ASTT “even when outside counsel were also involved.”

Rose and RJV also didn’t write the Management Agreement at issue here, the court said, nor did they consult, edit, or write the Supply Fee Agreement, and it noted that neither Rose nor RJV represented ASTT on any of the matters at issue in this case.

“With the evidence before us, we are unable to say that disqualification [of Rose] is merited,” the judges wrote.


The judges, however, took issue with Plaintiff’s motion arguing that this is a “tactical motion” by the defendants and “an attempt to mislead the court”. The judges said this argument “is taken with a large grain of salt”

For example, the judges point out that MWS Rose — as RJV — was intimately connected with ASTT and although ASTT ceased being a client of RJV in December 2016, RVJ still sent ASTT information regarding their transition to MWS Rose, which implies either sloppy record-keeping or that MSW Rose still considered ASTT to be a client as late as April 2017.

The judges said that for the plaintiffs to “accuse ASTT and their counsel of ‘tactical’ and ‘dishonest’ measures rings false when the extent of the relationship between Barry Rose and Bluesky is examined.”

However, the judges note, “As uncomfortable as it must be for ASTT to see their former president, shareholder and their former law firm representing their opponents in this case, the appearance of impropriety is no longer the standard for motions to disqualify attorneys under MRPC.”

Furthermore, although Rose undoubtedly served as ASTT’s attorney on numerous occasions, and his law firm handled a large variety of cases over many years, “none of those matters are substantially related to the current lawsuit, and no confidential information was likely to have been transmitted,” the judges said.