2012 V.I. Supreme LEXIS 26
Supreme Court of The Virgin Is...2012Background
- St. Croix Subcommittee petitioned the Virgin Islands Supreme Court on Nov. 10, 2011 alleging Michael A. Joseph violated multiple Model Rules and seeking six months’ suspension, public reprimand, restitution, and ethics CLE.
- Riveras filed a grievance Jan. 23, 2005 after Joseph failed to prosecute Civil Super. Ct. No. 360/1999 for damages against the Government; the case was dismissed Nov. 3, 2000 for failure to prosecute.
- Riveras alleged they met with Joseph twice, paid a $150 retainer, were unaware of deadlines and dismissals, and were never informed of orders requiring trial readiness.
- Panel found, by clear and convincing evidence, violations of Rules 1.1, 1.3, 1.4, and 8.1(b) and recommended six-month suspension, public reprimand, restitution, and six hours of ethics CLE.
- This Court reviews de novo on questions of violations, but defers to the panel on certain factual findings where appropriate, and applies default admissions for failure to respond or appear.
- The Court ultimately rejects two findings (Rules 1.16 and 8.4) and reduces the sanction to a three-month suspension with mandatory ethics CLE plus public reprimand and cost restitution adjustments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Joseph violate Rule 8.1(b) by failing to respond and appear? | Riveras/Committee: Joseph failed to respond and thus violated 8.1(b). | Joseph: disputed or explained actions; not addressed in response; no specific denial in reply. | Yes, violated Rule 8.1(b). |
| Did Joseph violate Rules 1.1, 1.3, and 1.4 in representing the Riveras? | Riveras were entitled to competent, diligent, and communicative representation; dismissal and lack of updates show violations. | Joseph contends limited defense; not supported in record; no sustained argument of compliance. | Yes, violated Rules 1.1, 1.3, and 1.4. |
| Did Joseph violate Rule 1.16 by terminating representation without proper withdrawal? | Riveras remained clients; no evidence of termination; rule violated by abandonment. | Joseph claims termination could have occurred; argues absence of notice or proper withdrawal. | No, Rule 1.16 not violated. |
| Did Joseph violate Rule 8.4 by misrepresentations to the Riveras? | Riveras allege assurances that case was progressing; misrepresentation may have occurred. | Statements were by staff, not necessarily Joseph; timing unclear; no 8.4 violation proven. | No, not established. |
Key Cases Cited
- Brusch v. Virgin Islands, 49 V.I. 409 (V.I. 2008) (broadly governs independent review and sanctions in VI bar discipline)
- Shumsky v. Eisenstein, 96 N.Y.2d 164 (N.Y. 2001) (withdrawal and notice principles in disciplinary context)
- Gonzalez v. Kalu, 140 Cal. App. 4th 21 (Cal. Ct. App. 2006) (disciplinary misconduct involving misrepresentation context)
- Hipple v. McFadden, 255 P.3d 730 (Wash. Ct. App. 2011) (withdrawal and ongoing representation considerations)
- In re Bennett, 32 So.3d 793 (La. 2010) (discipline for attorney misconduct involving misrepresentation by staff)
- Lundberg v. Backman, 358 P.2d 989 (Utah 1961) (automatic termination considerations in absence of withdrawal guidance)