Saturday, February 9, 2019

Like A Virgin (Islands Attorney)

As we previously had reported, the Supreme Court of the Virgin Islands is concerned about unauthorized practice by attorneys not admitted in the jurisdiction

This matter comes before this Court pursuant to the response of Karin A. Bentz, Esq. and Applicant Anne Elder Kershaw to this Court’s January 18, 2019 order, which required them to show cause, in writing, as to whether pro hac vice admission should be denied in light of an allegation that Kershaw has engaged in the unauthorized practice of law in the Virgin Islands. For the reasons that follow, we deny pro hac vice admission, and refer this matter to the appropriate authorities.

The story

Bentz moved for the pro hac vice admission of Kershaw—a New York attorney—in early 2018 to represent the defendants in De Leon v. Bentz, Super. Ct. Civ. No. 182/2015 (STX). Although this Court granted the motion in a January 14, 2019 order, it stated that Kershaw’s pro hac vice admission would only take into effect “upon execution of the Oath with the Clerk of the Court.” On January 15, 2019, a representative from Bentz’s law office arranged for the Clerk to administer the pro hac vice oath of office on January 25, 2019.

On January 17, 2019, Lee J. Rohn, Esq., counsel for the plaintiff in the De Leon matter, filed an emergency motion for this Court to reconsider Kershaw’s pro hac vice admission because Kershaw had purportedly engaged in the unauthorized practice of law. The motion was accompanied by an affidavit in which Rohn swore, under penalty of perjury, that Kershaw had appeared as counsel for the defendants at a mediation that occurred on January 17, 2019, even though she had not taken the pro hac vice oath of office.

The court entered a show cause order

Bentz and Kershaw filed a joint response with this Court on January 23, 2019. In that response, they concede that Kershaw appeared as counsel for the defendants at the January 17, 2019 mediation, despite not having been administered the pro hac vice oath. However, they maintain that Kershaw was authorized to do so pursuant to American Bar Association Model Rule of Professional Conduct 5.5(c).

The court rejected reliance on the ABA Rule

Bentz and Kershaw’s reliance on the ABA Model Rules is misplaced. Although former Supreme Court Rule 203 did at one point provide that the ABA Model Rules governed the conduct of Virgin Islands attorneys, this provision was repealed effective February 1, 2014, and replaced with the Virgin Islands Rules of Professional Conduct. In re Adoption of the Virgin Islands Rules of Professional Conduct, S. Ct. Prom. No. 2013-001, slip op. at 1 (V.I. Dec. 23, 2013). Significantly, this Court expressly declined to adopt ABA Model Rule 5.5(c) when it enacted the Virgin Islands Rules of Professional Conduct...

Moreover, ABA Model Rule 5.5(c) was never applicable to the Virgin Islands in the first place. In its first unauthorized practice of law decision involving a bar applicant, this Court held that the statutory definition of the unauthorized practice of law codified in section 443 governed to the exclusion of the ABA Model Rules of Professional Conduct. In re Campbell, 59 V.I. 701, 711 (V.I. 2013) (“By its own terms, [former] Rule 203 establishes that the Model Rules govern the conduct of individuals who have actually been admitted to the Virgin Islands Bar, and makes no reference to extending the Model Rules to govern the conduct of nonmembers . . . . More importantly, Rule 203 expressly states that the Model Rules only supersede previously promulgated court rules ‘pertaining to disciplinary enforcement,’ and does not purport to modify the statutory definition of unauthorized practice of law found in section 443.”) (emphases in original). Since then, this Court has repeatedly held that incorrect reliance on ABA Model Rule 5.5 is not a defense to the unauthorized practice of law in the Virgin Islands.

The mediation appearance was unauthorized practice

Accordingly, we deny the petition to admit Kershaw pro hac vice. Since the underlying conduct may potentially warrant action beyond the denial of pro hac vice admission, we also refer this matter to the Office of Disciplinary Counsel, the Board on Professional Responsibility, the Board on Unauthorized Practice of Law, and the Virgin Islands Attorney General, for the purpose of taking any additional action which they may find appropriate with respect to Bentz and Kershaw’s conduct in this matter.

As admission had been granted and awaited only administration of an oath, I find this response disproportionate to the conduct. (Mike Frisch)

Bar Discipline & Process | Permalink


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