Friday, September 4, 2020

Mandamus Granted: Proceed Or Dismiss

The Virgin Islands Supreme Court has granted mandamus relief to an attorney who is the subject of a disciplinary investigation.

The unusual relief came in response to the contention that unwarranted delay in deciding whether or not to proceed violated the attorney's due process rights. 

The complaint

On May 25, 2018, Mark W. Eckard, Esq. filed a grievance against Burns with the ODC. In his complaint, Eckard alleged that Burns told him to withdraw a motion for attorney’s fees filed in Gilbert v. U.S. Concrete, Inc., Super. Ct. Civ. No. 486/2017 (STT), on the ground that the fees sought were for work completed by five attorneys affiliated with a large Washington, D.C. law firm. Of those attorneys, three—Gorav Jindal, Corey Roush, and J. Matthew Schmitten—had applied for pro hac vice admission but had not taken the oath of office, while the other two had never applied for pro hac vice admission at all. According to the grievance, Burns told Eckard that the attorney’s fees motion revealed that all of these individuals had committed the offense of unauthorized practice of law in the Virgin Islands and requested that the motion be withdrawn. Otherwise, Burns and his co-counsel would oppose the motion in the Superior Court based on the unauthorized practice of law and notify this Court of Jindal, Roush, and Schmitten’s conduct in their pending pro hac vice admission proceedings.

Our reporting on the unauthorized practice allegations is inked here. 

Mandamus was sought after the delay in resolving the complaint

We agree that Burns has established that he has no other adequate means to attain the desired relief. Because Burns alleges that the ODC has failed to take meaningful action to substantively resolve the underlying grievance, an appeal to this Court is not an adequate alternate remedy. In re Elliot, 54 V.I. 423, 428 (V.I. 2010). Moreover, the record reflects that Burns has repeatedly requested the ODC to either dismiss the grievance or set a hearing before the PRC and the ODC has not done so. Therefore, Burns lacks any “practical avenues for seeking relief that are untried.” Id. (quoting Le Blanc, 49 V.I. at 517).

With respect to the second factor—that the right to the writ be clear and indisputable—the ODC maintains in its answer that “[t]here is no rule of the Supreme Court governing the ODC that mandates when a preliminary investigation must come to a close. None.” (Ans. 11-12.) To the extent the ODC believes it has the unfettered authority to keep an investigation open indefinitely, it is mistaken. Attorney discipline matters are quasi-criminal proceedings to which the constitutional right to due process applies...

Here, the grievance against Burns has been pending before the ODC for more than two years, yet it remains in the very first stage of the process – the determination by the ODC as to whether the grievance should be summarily dismissed or referred to the PRC for a determination of whether the grievance should proceed to formal hearing. The record reflects that Burns not only timely filed a response with the ODC but also filed a supplemental response to the grievance based on the language in of the footnote in our Jindal opinion, and then submitted follow-up letters to the ODC on April 22, 2019, July 9, 2019, and September 24, 2019, requesting either dismissal or a hearing before the PRC, as is provided for in Rule 207.9. The ODC, however, has neither dismissed the grievance nor referred it to the PRC, and has provided neither Burns nor this Court with any legitimate explanation for why this continues to be the case after more than two years.

The ODC must promptly either proceed or dismiss within two weeks

Burns has demonstrated that he lacks adequate means of attaining his desired relief other than a writ of mandamus. Moreover, Burns possesses a clear and indisputable right to have the underlying grievance either dismissed or referred to the PRC. Since issuance of the writ is appropriate under the circumstances, we grant the petition and direct the ODC to within fourteen days either dismiss the grievance or refer it to the PRC.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/09/the-virgin-islands-supreme-court-has-granted-mandamus-relief-to-an-attorney-we-agree-that-burns-has-established-that-he-has.html

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