Rule 303. Professional responsibility and discipline

(a) Power and responsibility. The Territorial Court, in furtherance of its inherent powers and responsibility to supervise the conduct of all attorneys who are admitted to practice before it, hereby adopts the ABA's Rules of Professional conduct and Rules of Disciplinary Enforcement, superseding all of its other rules pertaining to disciplinary enforcement heretofore promulgated. In addition to other forms of discipline, the successful completion of the current Multi-State Professional Responsibility Examination (MPRE) may be required as a form of disciplinary sanction, where appropriate.

(b) Attorneys convicted of crimes.

1. Upon the filing with this court of a certified copy of a judgment of conviction demonstrating that any attorney admitted to practice before the court has been convicted in any Court of the United States, or the District of Columbia, or of any state, territory, commonwealth or possession of the United States, or any foreign country of a serious crime as hereinafter defined, the court shall enter an order immediately suspending that attorney whether the conviction resulted from a plea of guilty, or nolo contendere, or from a verdict after trial or otherwise, and regardless of the pendency of any appeal, or an executive pardon or commutation, until final disposition of a disciplinary proceeding to be commenced upon such conviction. A copy of such order shall immediately be served upon the attorney. Upon good cause shown, the court may set aside such order when it appears in the interest of justice to do so.

2. The term "serious crime" shall include any felony and any lesser crime a necessary element of which, as determined by the statutory or common law definition of such crime in the jurisdiction where the judgment was entered, involves false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit a "serious crime."

3. A certified copy of a judgment of conviction of an attorney for any crime shall be conclusive evidence of the commission of that crime in any disciplinary proceeding instituted against that attorney based upon the conviction.

4. Upon the filing of a certified copy of a judgment of conviction of an attorney for a serious crime, the court shall in addition to suspending that attorney in accordance with the provisions of this rule, also refer the matter to the committee for the institution of a disciplinary proceeding before the court in which the sole issue to be determined shall be the extent of the final discipline to be imposed as a result of the conduct resulting in the conviction, provided that a disciplinary proceeding so instituted will not be brought to final hearing until all appeals from the convictions are concluded.

5. Upon the filing of a certified copy of a judgment of conviction of an attorney for a crime not constituting a "serious crime," the court may refer the matter to the committee for whatever action the committee may deem warranted, including the institution of a disciplinary proceeding before the court; provided, however, that the court may in its discretion make no reference with respect to convictions for minor offenses.

6. An attorney suspended under the provisions of this rule will be reinstated immediately upon the filing of a certificate demonstrating that the underlying conviction of a serious crime has been reversed but the reinstatement will not terminate any disciplinary proceeding then pending against the attorney, the disposition of which shall be determined by the court on the basis of all available evidence pertaining to both guilt and the extent of discipline to be imposed.

7. No disciplinary action against an attorney may be terminated by an executive or presidential pardon or commutation, nor may these rules be stayed or superseded thereby.

(c) Discipline imposed by other courts.

1. Any attorney admitted to practice before this court shall, upon being subjected to public discipline by any other court of the United States or the District of Columbia, or by a court of any state, territory, commonwealth or possession of the United States, or any foreign country, promptly inform the clerk of this court of such action.

2. Upon the filing of a certified or exemplified copy of a judgment or order demonstrating that an attorney admitted to practice before this court has been disciplined by another court, this court shall forthwith issue a notice directed to the attorney containing:

A. a copy of the judgment or order from the other court; and

B. an order to show cause directing that the attorney inform this court within 30 days after service of that order upon the attorney, personally or by mail, of any claim by the attorney predicated upon the grounds set forth in (4) hereof that the imposition of the identical discipline by the court would be unwarranted and the reasons therefor.

3. In the event the discipline imposed in the other jurisdiction has been stayed there, any reciprocal discipline imposed in this court shall be deferred until such stay expires.

4. Upon the expiration of 30 days from service of the notice issued pursuant to the provisions of (2) above, this court shall impose the identical discipline unless the respondent-attorney demonstrates, or this court finds, that upon the surface of the record upon which the discipline in another jurisdiction is predicated it clearly appears:

A. that the procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or

B. that there was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that this court could not, consistent with its duty, accept as final the conclusion on that subject; or

C. that the imposition of the same discipline by this court would result in grave injustice; or

D. that the misconduct established is deemed by this court to warrant substantially different discipline.

Where this court determines that any of said elements exist, it shall enter such other order as it deems appropriate.

5. In all other respects, a final adjudication in another court that an attorney has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this court.

6. This court may at any stage appoint the committee to prosecute the disciplinary proceeding.

7. An attorney, who is under suspension or disbarment by any jurisdiction, or who has resigned from the bar thereof, or who is under investigation by any other jurisdiction, may not be admitted to the Virgin Islands Bar until and unless he is certified to be a member in good standing of the bar of that jurisdiction. Moreover, no applicant who has been disciplined by another jurisdiction may be admitted to the V.I. Bar until and unless all obligations to that jurisdiction have been satisfied and the jurisdiction certifies that he is eligible for reinstatement or readmission.

(d) Disbarment on consent or resignation in other courts.

1. Any attorney admitted to practice before this court who shall be disbarred on consent or resign from the bar of any other Court of the United States or the District of Columbia, or from the bar of any state, territory, commonwealth or possession of the United States while an investigation into allegations of misconduct is pending, shall, upon the filing with this court of a certified or exemplified copy of the judgment or order accepting such disbarment on consent or resignation, cease to be permitted to practice before this court and be stricken from the roll of attorneys admitted to practice before this court.

2. Any attorney admitted to practice before this court shall, upon being disbarred on consent or resigning from the bar of any other Court of the United States or the District of Columbia, or from the bar of any state, territory, commonwealth or possession of the United States while an investigation into allegations of misconduct is pending, promptly inform the clerk of this court of such disbarment on consent or resignation.

(e) Standards for professional conduct.

1. For misconduct defined in these rules, and for good cause shown, and after notice and opportunity to be heard, any attorney admitted to practice before this court may be disbarred, suspended from practice from this court, reprimanded or subjected to such other disciplinary action as the circumstances may warrant.

2. Acts of omissions by an attorney admitted to practice before this court, individually or in concert with any other person or persons, which violate the Rules of Professional Conduct adopted by this court shall constitute misconduct and shall be grounds for discipline, whether or not the act or omission occurred in the course of an attorney-client relationship. The Rules of Professional Conduct adopted by this court is the Rules of Professional Conduct adopted by the American Bar Association, as amended from time to time by that body, except as otherwise provided by specific rule of this court after consideration of comments by representatives of the Virgin Islands Bar Association.

(f) Disciplinary proceedings.

1. When misconduct or allegations of misconduct which, if substantiated, would warrant discipline on the part of an attorney admitted to practice before this court shall come to the attention of a judge of this court, whether by complaint or otherwise, and the applicable procedure is not otherwise mandated by these rules, the judge shall refer the matter to the committee for investigation and the prosecution of a formal disciplinary proceeding or the formulation of such other recommendation as may be appropriate.

2. Should the committee conclude after investigation and review that a formal disciplinary proceeding should not be initiated against the respondent-attorney because sufficient evidence is not present, or because there is pending another proceeding against the respondent-attorney, the disposition of which in the judgment of the committee should be awaited before further action by this court is considered or for any other valid reason, the committee shall file with the court a recommendation for disposition of the matter, whether by dismissal, admonition, deferral, or otherwise setting forth the reasons therefor.

3. To initiate formal disciplinary proceeding, the committee shall obtain an order of this court upon a showing of probable cause requiring the respondent-attorney to show cause within 30 days after service of that order upon that attorney, personally or by mail, why the attorney should not be disciplined.

4. Upon the respondent-attorney's answer to the order to show cause, if any issue of fact is raised or the respondent-attorney wishes to be heard in mitigation this court shall set the matter for prompt hearing before the chief judge of this court, provided however that if the disciplinary proceeding is predicated upon the complaint of the chief judge of this court the hearing shall be conducted before another judge of this court.

(g) Disbarment on consent while under disciplinary investigation or prosecution.

1. Any attorney admitted to practice before this court who is the subject of an investigation into, or a pending proceeding involving, allegations of misconduct may consent to disbarment, but only by delivering to this court an affidavit stating that the attorney desires to consent to disbarment and that:

A. the attorney's consent is freely and voluntarily rendered; the attorney is not being subjected to coercion or duress; the attorney is fully aware of the implications of so consenting;

B. the attorney is aware that there is a presently pending investigation or proceeding involving allegations that there exist grounds for the attorney's discipline the nature of which the attorney shall specifically set forth;

C. the attorney acknowledged that the material facts so alleged are true; and

D. the attorney so consents because the attorney knows that if charges were predicated upon the matters under investigation, or if the proceeding were prosecuted, the attorney could not successfully defend himself.

2. Upon receipt of the required affidavit, this court shall enter an order disbarring the attorney.

3. The order disbarring the attorney on consent shall be a matter of public record. However, the affidavit required under the provisions of this rule shall not be publicly disclosed or made available for use in any other proceeding except upon order of this court.

(h) Reinstatement.

1. After Disbarment or Suspension . An attorney suspended for three months or less shall be automatically reinstated at the end of the period of suspension upon the filing with the court of an affidavit of compliance with the provisions of the order. An attorney suspended for more than three months or disbarred may not resume practice until reinstated by order of this court.

2. Time of Application Following Disbarment. A person who has been disbarred after hearing or by consent may not apply for reinstatement until the expiration of at least five years from the effective date of the disbarment.

3. Hearing on Application. Petitions for reinstatement by a disbarred or suspended attorney shall be filed with the clerk of this court for referral to the presiding judge who shall thereafter assign the matter to a disinterested judge, attorney or committee for review. The judge, attorney or committee assigned to the matter shall review the petition and verify the allegations therein and may schedule a hearing at which the petitioner shall have the burden of demonstrating by clear and convincing evidence that he has the moral qualifications, competency and learning in the law required for reinstatement to practice and that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar or to the administration of justice, or to the public interest. In addition, the applicant may be required to satisfactorily retake all or part of the Virgin Islands Bar Examination.

4. Duty of the Committee. In all proceedings upon a petition for reinstatement, cross-examination of the witnesses of the respondent-attorney and the submission of evidence, if any, in opposition to the petition shall be conducted by the committee.

5. Deposit for Costs of Proceeding. Petitions for reinstatement under this rule shall be accompanied by an advance cost deposit in an amount to be set from time to time by the court to cover anticipated costs of the reinstatement proceeding.

6. Conditions of Reinstatement. If the petitioner is found unfit to resume the practice of law, the petition shall be dismissed. If the petitioner is found fit to resume the practice of law, the judgment shall reinstate him, provided that the judgment may make reinstatement conditional upon the payment of all or part of the costs of the proceedings, and upon the making of partial or complete restitution to parties harmed by the petitioner whose conduct led to the suspension or disbarment. Provided further, that if the petitioner has been suspended or disbarred for five years or more, reinstatement may be conditioned, in the discretion of the judge before whom the matter is heard, upon the furnishing of proof of competency and learning in the law, which may include certification by the Committee of Bar Examiners successful completion of an examination for admission to practice subsequent to the date of suspension or disbarment.

7. Successive Petitions. No petition for reinstatement under this rule shall be filed within one year following an adverse judgment upon a petition for reinstatement filed by or on behalf of the same person.

(i) Attorneys specially admitted. Whenever an attorney applies to be admitted or is admitted to this court for purposes of a particular proceeding (pro hac vice), the attorney shall be deemed thereby to have conferred disciplinary jurisdiction upon this court for any alleged misconduct of that attorney arising in the course of or in the preparation for such proceeding.

(j) Service of papers and notices. Service of an order to show cause instituting a formal disciplinary proceeding inside the territory shall be made according to Fed. R. Civ. P. 4 and outside the territory according to 5 V.I.C. ' 4911. Service of any other papers or notices required by these rules shall be deemed to have been made if such paper or notice is addressed to the respondent-attorney at his last known address, or to the respondent's counsel at the address indicated in the most recent pleading or other document filed in the course of any proceeding.

(k) Committee on professional responsibility and discipline.

1. Unless otherwise stated herein, all disciplinary proceedings against attorneys admitted to practice before this court shall be conducted by the committee. Should the committee conclude after investigation and review that the evidence does not warrant prosecuting a formal disciplinary proceeding against the respondent attorney, the committee shall dispose of the matter informally, whether by dismissal, reprimand, admonition, disqualification, restitution, or otherwise. Should the respondent attorney not be satisfied with said disposition he or she may demand (within 45 days) that a formal disciplinary proceeding be commenced and it shall commence forthwith.

2. The committee may make rules and regulations for its operation as it may deem necessary, and such rules and regulations shall be submitted for review with comments to the Board of Governors of the Bar Association and this court and approved by this court. The rules shall become effective upon approval by this court and publication to all members of the V.I. Bar Association by reproduction in the V.I. Bar Association Law Letter or by mail.

3. The facilities and employees of this Court shall be available to the committee for such use and assistance as the members may require. The committee is authorized to obtain the services of medical and other experts and to cause subpoenas to be issued out of the office of the clerk of the Territorial Court as necessary to compel attendance of witnesses.

4. The committee is authorized to retain the aid of other members of the bar to investigate alleged misconduct and report to the committee their findings and recommendations or to prosecute formal disciplinary proceedings on behalf of the committee.

5. All fees and expenses shall be paid from funds of the Virgin Islands Bar Association.

(l) Committee on Unauthorized Practice of Law. It shall be the duty of the Committee on Unauthorized Practice of Law of the Virgin Islands Bar Association to keep under continuing study the subject of unauthorized practice of law; to analyze and evaluate the measures that exist in the Virgin Islands to prevent unauthorized practice, comparing such measures to those employed in other territories and States; and to investigate unauthorized practice.

The Committee on Unauthorized Practice of Law shall have the power to investigate all charges of unauthorized practice that may be brought to its attention in writing, and to initiate such investigations upon its own motion. When sufficient funds are available for the purpose, the Board of Governors shall have authority to appropriate the funds necessary for such investigations.

The committee shall have the power to summon and examine witnesses, to order the production of books, records and other documentary evidence, and to administer oaths. The committee is authorized to cause subpoenas to be issued out of the office of the Clerk of the Territorial Court as necessary to compel attendance of witnesses.

With the approval of the Board of Governors of the Virgin Islands Bar Association, the committee may take steps to prevent or stop the unauthorized practice of law, including the initiation of legal proceedings.

(m) Payment of fees and costs. At the conclusion of any disciplinary investigation or prosecution, if any, under these rules, the committee may make application to this court for an order awarding reasonable fees and reimbursing costs expended in the course of such disciplinary investigation or prosecution against the respondent-attorney.

(n) Duties of the clerk.

1. Upon being informed that an attorney admitted to practice before this court has been convicted of any crime, the clerk of this court shall determine whether the clerk of the court in which such conviction occurred has forwarded a certificate of such conviction to this court. If a certificate has not been so forwarded, the clerk of this court shall promptly obtain a certificate and file it with this court.

2. Upon being informed that an attorney admitted to practice before this court has been subjected to discipline by another court, the clerk of this court shall determine whether a certified or exemplified copy of the disciplinary judgment or order has been filed with this court, and, if not, the clerk shall promptly obtain a certified or exemplified copy of the disciplinary judgment or order and file it with this court.

3. Whenever it appears that any person convicted of any crime or disbarred or suspended or censured or disbarred on consent by this court is admitted to practice law in any other jurisdiction or before any other court, the clerk of this court shall, within ten days of that conviction, disbarment, suspension, censure, or disbarment on consent, transmit to the disciplinary authority in such other jurisdiction, or for such other court, a certificate of the conviction or a certified or exemplified copy of the judgment or order of disbarment, suspension, censure, or disbarment on consent, as well as the last known office and residence addresses of the defendant or respondent.

4. The clerk of this court shall, likewise, promptly notify the National Discipline Data Bank operated by the American Bar Association of any order imposing public discipline upon any attorney admitted to practice before this court.

(o) Jurisdiction. Nothing contained in these rules shall be construed to deny to this court such powers as are necessary for the court to maintain control over proceedings conducted before it.

(p) Attorneys who fail to accept indigent appointments.

Any attorney who refuses to accept an indigent appointment or is unavailable for two or more appointments in a calendar year shall be subject to the contempt powers of this court and such other disciplinary action for misconduct as might be recommended by the Virgin Islands Bar Association.

Appointment of attorneys to represent indigent defendants shall be made on the basis of the alphabetical rotation of their names, provided, however, that the presiding judge may provide for alternative methods of appointment based upon the seriousness of the offense, the expertise of the attorney, the length and complexity of the trial, and other appropriate factors. Temporary exemption from appointment may be granted to an attorney after representation in a complicated case.

Exemption may also be granted by order of the court under appropriate circumstances justifying compensatory relief from indigent appointments.--Added Mar. 30, 1992; amended Oct. 14, 1994, eff. Nov. 16, 1994; Dec. 1, 1996.

Case Notes

Jurisdiction

Reinstatement

Violations

Jurisdiction

Since petition for readmission to local bar is a local civil action, Territorial Court has exclusive jurisdiction to entertain it. In re Application of Moorhead, Terr. Ct. St. T. and St. J. 1992, 27 V.I. 74.

Reinstatement

Attorney was ineligible for readmission to Virgin Islands Bar, where she failed to produce documents and directly answer questions concerning whether she had maintained proper client escrow accounts, as required during period of her conditional readmission, and she consistently failed to accept responsibility for her transgressions. Virgin Islands Bar Ass'n ex rel. Ethics & Grievance Com. v. Boyd-Richards, Terr. Ct. St. T. & St. J. 1999, 41 V.I. 158.

Violations

Disbarment was appropriate sanction for attorney's failure to open escrow account for client funds, failure to refund monies to clients and others unquestionably entitled to same, failure to maintain time records or financial records, and misrepresentations and perjury to court, especially where attorney was the subject of a prior disciplinary action for the same misconduct. Virgin Islands Bar Ass'n ex rel. Ethics & Grievance Com. v. Boyd-Richards, Terr. Ct. St. T. & St. J. 1999, 41 V.I. 158.

The court adopted the findings of the Professional Ethics and Grievance Committee and determined that an attorney, who while representing client during a house closing, failed to adequately inform client of the closing date and the tax stamp cost incurred at the closing, failed to keep client's funds separate and apart from his personal funds, and falsely and deliberately informed client that opposing counsel required her to put $30,000 in escrow prior to closing, acted in manner so reprehensible that the Court disbarred the attorney, to protect the community from such legal malpractice. Virgin Islands Bar Ass'n ex rel. Ethics & Grievance Comm. v. Hilaire, Terr. Ct. St. T. and St. J. 1997, 35 V.I. 106.

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