Torres hires Banes’ law firm

David G. Banes

Gov. Ralph DLG Torres confirmed yesterday that he has also hired the law firm of David G. Banes as his counsel, in addition to a Washington, D.C.-based law firm to represent him in the ongoing investigation of the House of Representatives Judiciary and Governmental Operations Committee on his expenditures of public funds and travels, and other matters.

In response to Saipan Tribune’s inquiry, Torres said his office has indeed hired the Banes Horey Berman & Miller law firm but he did not elaborate. Later, Gilbert Birnbrich, legal counsel for the Office of the Governor, told Saipan Tribune that the contract is between the law firm of Banes Horey Berman & Miller and the Office of the Governor.

Birnbrich said the contract is not with a specific attorney and is meant to provide advice and representation to the Office of the Governor in relation to the investigation of the JGO Committee.

He said the law firm is also retained to provide advice and representation to the Office of the Governor in any other investigation conducted by the House, if the Office of the Governor requests such services from the law firm.

Birnbrich said to be clear, Banes Horey Berman & Miller law firm has not been retained to act as co-counsel with the Garber Group LLC or Ross Garber.

“They have been separately retained to help the Office of the Governor with House investigations,” he said.

Gilbert Birnbrich

Birnbrich said under CNMI procurement regulations, every professional services contract such as the one with Banes Horey Berman & Miller must have a “ceiling price,” i.e., a maximum amount to be expended under the contract. In this case, he said, that number is $50,000, but that does not mean that the amount will actually be spent under the contract.

“That is just the maximum amount allowed under the contract,” Birnbrich said.

He said under this contract, the Office of the Governor is charged by the hour plus expenses for the services of the attorneys. “This type of arrangement is also the most common arrangement between a private individual and a lawyer,” he said.

Similar to an arrangement between a private person and a lawyer, the Office of the Governor also paid a retainer fee, Birnbrich said. He said this retainer fee acts as a pre-payment and can be drawn on by the law firm as monthly fees are charged to the client (here, the Office of the Governor).

He said the retainer fee also serves as a type of security deposit. “When the contract is ended, for whatever reason, the balance of the retainer, if any, will be returned to the government,” Birnbrich said.

He said in their contract, the Office of the Governor paid $5,000 as a retainer fee.

Torres

Saipan Tribune obtained yesterday a copy of Torres’ request to Division of Procurement services acting director Francisco C. Aguon dated Aug. 18, 2021, for a sole source justification for the award of a contract to the Garber law firm for legal services.

In that request, Torres disclosed that the Office of the Governor has hired the law firm of Banes Horey Berman & Miller to provide similar services.

Torres said the Office of the Governor believes that the hiring of the Ross Garber law firm is not necessarily duplicative.

He said lawyers of Garber Group LLC are experts in litigation and constitutional issues surrounding legislative investigations. Torres said Banes law firm can still have a role in assisting the governor’s legal counsel and the Office of the Governor in matters related to the House investigations.

Saipan Tribune has yet to obtain a copy of Banes’ contract.

Banes and his law firm served as counsel for Rota Mayor Efraim Atalig in a corruption case filed against Atalig and his common-law wife by the U.S. government before the U.S. District Court for the NMI. The case against the Ataligs dragged for nearly two years but ended in August 2020 with federal court jurors unanimously finding the Ataligs innocent of all charges.

In his Aug. 18 request for a sole-source contract for the Garber law firm’s services, Torres said the price proposed by Garber is reasonable as the law firm proposes a rate of $731 per hour, which is a 25% discount from the $975 per hour rate the law firm ordinarily charges.

He said the law firm requests a retainer or advance payment of $25,000 and that the initial contract amount is capped at $150,000, to adhere to regulatory requirements directing that contracts establish ceiling prices.

The Garber Group LLC law firm, is known for its expertise in impeachment proceedings. Garber teaches a class on political investigations and impeachments at Tulane School. He regularly provides legal commentary for CNN, according to their website.

Torres declared that he has complied with the Commonwealth procurement regulations and that this contract with Garber is for a public purpose, and that the contract does not waste or abuse public funds.

He said the Office of the Governor has a critical need to increase the capacity to provide legal services.

Torres said the Office of the Attorney General had declined to represent him due to potential conflicts. He said, the OAG, however, did permit the Office of the Governor to seek outside counsel to provide legal services in relation to the investigations.

Saipan Tribune also obtained yesterday a copy of the contract between the Office of the Governor and Garber law firm. Torres and Garber signed the contract on Aug. 24, 2021.

Under the contract, Garber will begin its performance on Aug. 19, 2021, or upon receipt of a notice to proceed by the Office of the Governor, whichever is later.

Finance Secretary David DLG Atalig certified on Aug. 23, 2021, that the $150,000 funds are available to commit for funding the contract. Attorney General Edward Manibusan certified on that same day, Aug. 23, that the contract was reviewed and approved as to form and legal capacity.

Aguon certified the contract completion on Aug. 25, 2021.

Under the contract, the Office of the Governor is retaining Garber, along with its attorneys, to provide legal services, advice and representation to the Office of the Governor in relation to the investigation of the JGO and the investigation of the House Committee on Gaming into the operation and governmental relations of the casino licensee Imperial Pacific International (CNMI) LLC as it relates to Torres and Office of the Governor.

Garber will also represent Torres in any other legislative investigation that may arise. Representation may include litigation related to those investigations and may also include work on certified questions related to JGO investigation into Torres’ expenditures. Any appellate or representation and work before the Supreme Court related to a certified question requires the consultation and consent of the AG before proceeding, according to the contract.

The JGO had already approved subpoena for Torres to testify. As of yesterday, he has yet to be issued a subpoena.

Lt. Gov. Arnold I. Palacios had already testified before the JGO.

On whether he plans to testify or with counsel before the JGO Committee, Torres earlier stated that they will deal with it when they get that subpoena.

The JGO hearing will resume today, Monday, at 10am, with the testimony of Commonwealth Utilities Corp. executive director Gary P. Camacho.