IN THE SUPREME COURT OF THE VIRGIN ISLANDS
IN THE MATTER OF THE PETITION
)
S Ct Misc No 2021 0024
OF
)
)
VIRGIN ISLANDS BAR
)
ASSOCIATION
)
)
TO ADOPT AMERICAN BAR
)
ASSOCIATION MODEL RULE OF
)
PROFESSIONAL CONDUCT S 5(c)
)
)
)
Considered and Filed December 23 2021
Cite as 2021 V124
BEFORE
RHYS S HODGE ChiefJustice MARIA M CABRET Associate Justice and
IVE ARLINGTON SWAN, Associate Justice
OPINION OF THE COURT
PER CURIAM
‘ 1
This matter comes before this Court pursuant to a petition filed by the Virgin Islands
Bar Association In its petition, the Bar Association requests that this Court amend Supreme Court
Rule 211 5 5, pertaining to multijurisdictional practice and the unauthorized practice of law, to
include new language which would track Rule 5 S(c) of the American Bar Association Model
Rules of Professional Conduct For the reasons that follow, we deny the petition
1 DISCUSSION
A Authority for Filing of Petition
1| 2
Before considering the merits of the Bar Association 5 request we note that the Bar
Association cites to no authority to support the filing of its petition to amend the Rules of this
Court This Court, as the court of last resort of the Virgin Islands, certainly possesses the
constitutional, statutory, and inherent authority to regulate all aspects of the practice of law in the
Territory, as well as to adopt the rules of practice and procedure for the courts ofthe Virgin Islands,
including those pertaining to the admission and conduct of attorneys See 48 U S C § 161 I(c) 4
V IC § 32(6) In re Campbell 59 VI 701 709 (VI 2013) However as the Supreme Court of
the United States has explained, when a court of last resort exercises its authority to promulgate
rules of practice and procedure
including rules governing admission to the bar and the conduct
of attorneys
it is not performing a judicial act or exercising a judicial power, but rather acts in a
legislative capacity Supreme Court of Va v Consumers Uman of U S
Inc , 446 U S 719, 731
(1980) Consequently, proceedings to effectuate the adoption, amendment, or repeal of a court
rule, while perhaps bearing certain trappings ofjudicial proceedings, are not judicial proceedings
at all, in that
[t]hey do not arise out of a controversy which must be adjudicated, but instead out
of a need to regulate conduct for the protection of all citizens ” Id (internal citations omitted) For
this reason, when exercising rulemaking authority, a court of last resort stands in place of a state
legislature and the judicial officers who serve on it “are the State’s legislators,” and when engaging
in such rulemaking may comport themselves as such
Id at 734
1| 3
It is such a fiJndamental principle of American government as to not require citation
that while private citizens, organizations, and other stakeholders may certainly lobby a legislature
and its members to enact certain legislation, such groups have no right to file their proposed
legislation as a bill directly with the legislature, force the legislature to hold a hearing on the bill,
and then mandate that the members ofthe legislature debate the bill and vote on it The same holds
true for the rulemaking function of this Court
Recognizing the importance of considering the
views from judicial officers, practicing attorneys and the public, this Court has established an
and
procedure,
soliciting
and
receiving comments
from
the
Bar
Association
and
other
stakeholders, and suggesting amendments and other rule changes for consideration by this Court
See V I R APP P 37(b) While some courts of last resort in other jurisdictions such as Florida
have established a formal procedure to permit bar associations and others to file requests for rule
changes directly with the court without any vetting by a rules committee or similar gatekeeper
this Court has not done so
Therefore, the Bar Association does not have an absolute right to file
a petition with this Court requesting an amendment to a court rule with the expectation that the
Court will even docket it, let alone act on it
‘ 4
Nevertheless, while we emphasize that we are under no obligation whatsoever to
consider, or even docket, the Bar Association’s petition, we exercise our discretion to do so in this
instance The Bar Association is not an ordinary organization, but an arm of this Court, ‘ created
to assist the Coun in regulating the practice of law in the territory
V I S CT R 205(a) The issues
raised by the Bar Association in its petition go directly to the heart of this purpose While it may
have been preferable for the Bar Association to bring its proposal to the Advisory Committee on
Rules prior to presenting it to this Court, we decline to mandate such action with respect to this
particular proposal, since we wish to encourage, rather than discourage, the Bar Association from
fulfilling its core mission
Therefore
in this instance, we will consider the Bar Association’s
request for this Court to amend Rule 21 l 5 5 However, we admonish and express caution that we
may not do so with respect to future petitions that have not been properly vetted by the Advisory
Committee
B The Proposed Amendment
1] 5
Supreme Court Rule 21 l 5 5 titled Unauthorized Practice ofLaw; Multijurisdictional
(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal
profession in that jurisdiction, or assist another in doing so
(b) An individual who is not admitted to practice in this jurisdiction shall not
(1) except as authorized by section 443 of title 4 ofthe Virgin Islands Code or other
law, establish an office or other systematic and continuous presence in this
jurisdiction for the practice of law, or
(2) hold out to the public or otherwise represent that he or she is admitted to practice
law in this jurisdiction
Except for the reference to title 4, section 443 of the Virgin Islands Code in Rule 211 5 5(b)(1),
the language of Rule 21 l 5 5 largely tracks that found in American Bar Association Model Rule
of Professional Conduct 5 5(a) (b)
However, in framing Rule 211 5 5 this Court did not adopt
any portion of Model Rule 5 S(c) (e)
Model Rule 5 5 reads in its entirety, as follows
(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of
the legal profession in that jurisdiction, or assist another in doing so
(b) A lawyer who is not admitted to practice in this jurisdiction shall not
(1) except as authorized by these Rules or other law establish an office or other
systematic and continuous presence in this jurisdiction for the practice of
law, or
(2) hold out to the public or otherwise represent that the lawyer is admitted to
practice law in this jurisdiction
(c) A lawyer admitted in another United States jurisdiction and not disbarred or
suspended from practice in any jurisdiction may provide legal services on a
temporary basis in this jurisdiction that
(1) are undertaken in association with a lawyer who is admitted to practice in
this jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a
tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer
is assisting, is authorized by law or order to appear in such proceeding or
reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration mediation,
or other alternative resolution proceeding in this or another jurisdiction, if
the services arise out of or are reasonably related to the lawyer's practice in
ajurisdiction in which the lawyer is admitted to practice and are not services
for which the forum requires pro hae vice admission, or
(4) are not within paragraphs (c) (2) or (c)(3) and arise out of or are reasonably
related to the lawyer’s practice in a jurisdiction in which the lawyer is
admitted to practice
((1) A lawyer admitted in another United States jurisdiction or in a foreign
jurisdiction, and not disbarred or suspended from practice in any jurisdiction or
counsel under the laws of a foreign jurisdiction, may provide legal services
through an office
or other systematic and continuous
presence
in
this
jurisdiction that
(l) are provided to the lawyer's employer or its organizational affiliates, are not
services for which the forum requires pro hac vice admission; and when
performed by a foreign lawyer and requires advice on the law of this or
another U S jurisdiction or of the United States, such advice shall be based
upon the advice of a lawyer who is duly licensed and authorized by the
jurisdiction to provide such advice, or
(2) are services that the lawyer is authorized by federal or other law or rule to
provide in this jurisdiction
(e) For purposes of paragraph (d)
(l) the foreign lawyer must be a member in good standing of a recognized legal
profession in a foreign jurisdiction, the members of which are admitted to
practice as lawyers or counselors at law or the equivalent, and subject to
effective regulation and discipline by a duly constituted professional body
or a public authority or,
(2) the person otherwise lawfully practicing as an in house counsel under the
laws of a foreign jurisdiction must be authorized to practice under this Rule
by, in the exercise of its discretion, [the highest court of this jurisdiction]
1] 6
The decision to not adopt Model Rules 5 5(c) (e) was a deliberate one When this Court
issued its October 10, 2013 order requesting public comments on the proposed Rule 2| 1, the
version of Rule 211 5 5 released to the public included a proposed Rule 211 5 5(c) that tracked
Model Rule 5 5(0) nearly word for word, as well as a proposed Rule 211 5 5(d) that would have
permitted practice without admission by in house counsel, albeit using substantially different
language than Model Rule 5 5(d) Moreover, the proposed Rule 21 1 5 5(b) circulated for comment
did not reference section 443, but used language identical to that in Model Rule 5 5(b)
1] 7
However, on October 25, 2013, this Court received extensive comments from the
Office of Disciplinary Counsel ( ODC ) strongly opposing modeling Rule 211 5 5 after Model
Rule 5 5 The CDC noted that the language in Model Rule 5 5(c) and proposed Rule 211 5 5(c)
was directly contrary to the definition of the unauthorized practice of law set forth in section 443
and subsequently adopted by this Court in numerous decisions In addition to the conflict with
section 443 the ODC also opposed both the proposed Rules 211 5 5(0) and (d) on policy grounds,
noting that it would be impossible to regulate individuals practicing law pursuant to these
provisions since there was no mechanism in place for them to register or otherwise announce their
presence so as to ensure that the ODC or this Court could verify that they were actually practicing
within the bounds of those exceptions
Although the ODC 5 comments were part of the electronic
public docket and were filed three weeks before the notice and comment period closed, neither the
VIBA nor any other entity or individual filed any comments in response to the ODC 5 comments,
in fact, the comments from the ODC were the only comments filed with the Court on any aspect
of the proposed Rule 21 l
11 8
Ultimately this Court agreed with the ODC, and the provisions in Rule 21 1 that went
into effect on February 1 2014 adopted its recommendations in their entirety This Court modified
Rule 211 5 S(b) by adding an express cross reference section 443 to ensure that adoption of the
Rule did not erase or modify pre existing case law pertaining to the unauthorized practice of law
This Court declined to adopt proposed Rules 211 5 5(0) ((1) and initiated a process to address the
issues of temporary practice and in house counsel admission through other rules As a result of
that process, this Court adopted Rule 202 I to establish a formal process for the admission and
registration of in house counsel And in direct response to a request from the Virgin Islands Bar
Association, this Court amended Rule 201, pertaining to pro hac vice admission, to greatly
liberalize the rule by repealing the lifetime limit of three pro hac vzce appearances by a lawyer or
law firm and to also repeal the requirement that a pro hac vice attorney pay a licensing fee
T. 9
Thepro hac wee admission rule has remained a subject ofcontinuing study, and in fact
Rule 201 was recently amended to define the term ‘ matter” to clarify that pro hac Vice admission
provide for reciprocal pro hac vice admission in the courts of the Virgin Islands for certain pro
hac vice admissions granted by the United States District Court of the Virgin Islands, and to
establish a system for a single attorney to obtain multiplepro hac vice admissions through a single
consolidated application
1] 10
The liberalization of the pro hac wee rule occurred concurrently with other reforms to
the bar admissions process This Court adopted the Uniform Bar Exam and admission on motion
without examination, resulting in the Virgin Islands being the only United States territory to adopt
both
This Court also became one of the first in the nation to permit applicants for regular
admission to the Virgin Islands Bar to practice under the supervision of a licensed Virgin Islands
attorney as a certified legal intern while their applications for regular admissions are pending, years
before otherjurisdictions would adopt similar rules in response to the COVID l9 pandemic Thus
this Court has mitigated the effects of both section 443 and the absence of Model Rule 5 S(c) by
both eliminating the barriers to obtaining pro hac wee admission, as well as making
it
exponentially easier for attorneys admitted in other United States jurisdictions to become regularly
admitted As a result, in a mere five years the Virgin Islands went from being arguably one of the
most restrictive jurisdictions in the United States with respect to admission to the practice of law,
to arguably being one of the most open and inclusive
1| 1 1
It is with this context in mind that we consider the Bar Association’s petition for us to
exercise our rulemaking power to adopt Model Rule 5 S(c)
The Bar Association does not
acknowledge in its petition or any of the exhibits thereto the existence of section 443, let alone
explain how Model Rule 5 S(c) could be reconciled with the definition ofthe unauthorized practice
of law codified in that statute Even if this omission is due to the Bar Association recognizing that
unauthorized practice of law would supersede section 443, see World Fresh Markets LLC v
Palermo
2021 VI
1
11 [8 (citing Gerace v
Bentley
65 V I
289
303 (V I
2016))
the Bar
Association also does not acknowledge the extensive amendments to this Court’s bar admissions
rules
particularly the pro hac wee rule
that serve largely the same purpose as Model Rule
5 5(c) And perhaps most significantly, the Bar Association does not address the core objection to
Model Rule 5 5(c) that the ODC emphasized in its October 25
2013 objection to proposed
Supreme Court Rule 211 5 5(0) namely that allowing individuals to practice Virgin Islands law
without obtaining pro hac vice admission or otherwise registering with this Court makes it
impossible for this Court or the ODC to verify that those individuals are actually in compliance
with the rule '
1] 12
The Bar Association, however, does explain why
it believes
its proposed rule
amendment is necessary
It maintains that its “members have expressed concern about the
application of the UPL laws as they relate to transactional matters involving stateside counsel and
local counsel and scenarios in which stateside counsel is engaged in or will be engaged in litigation
in the Territory on a pro hac vice basis,‘ and that
the typical interactions between local and
stateside counsel are impeded by the application of the recent [UPL] decisions in the transactional,
litigation and pre litigation settings
’
(Pet
1 2)
According to the Bar Association, “these
' For instance, Model Rules 5 5(0) and ((1) only authorize temporary practice without admission
for a lawyer who is admitted in another United States jurisdiction who is not suspended or
disbarred In one of this Court 3 earliest unauthorized practice of law cases, the respondent had
claimed that Model Rules 5 5(0) and (d) authorized him to perform legal services in the Virgin
Islands without obtaining regular or pro hac Vice admission However, the record reflected that
despite his repeated invocation of Model Rules 5 5(c) and (d), the respondent had at all pertinent
times been suspended or inactive and thus not eligible to practice under Model Rules 5 5(0) and
(d) even if those provisions did apply to the exclusion of section 443 See In re Motylmskz, 60 V I
621 652 (V I 2014)
interactions are standard practice between lawyers in the mainland, who may be from differing
states involved in the same type of interactions but yet do not run afoul of any UPL laws
stateside
2 (Pet 2 )
1] 13
From these statements, it appears to this Court that the concerns of the Bar Association
members referenced in the petition are not with Supreme Court Rule 21 l 5 5, section 443, or the
precedents applying those authorities, but rather a misunderstanding of what does and does not
constitute the unauthorized practice of law in the Virgin Islands and the rest of the United States
Neither Rule 21 l 5 5 section 443 nor any precedent of this Court prohibits an attorney licensed
in another United States jurisdiction from interacting with a licensed Virgin Islands attorney
Supreme Court Rule 201, governing pro hac Vice admission, limits pro hac vice admission only to
those “who ha[ve] been retained or requested to represent any party in any legal matter in the
Virgin Islands, ’ and requires that the applicant be sponsored by a regularly admitted attorney who
agrees to be responsible for the prosecution ofthe matter to whichpro hac Vice admission is sought
Consequently, Rule 201 expressly requires that a pro hac vzce applicant not only interact with the
regularly admitted attorney and the client but that the regularly admitted attorney and prospective
pro hac wee applicant discuss the nature of the matter
whether it be litigation or transactional
2 It appears that the Bar Association uses the phrase “stateside counsel” to refer to individuals who
are not members of the Virgin Islands Bar and “local counsel” to refer to individuals who are
admitted to the practice of law in the Virgin Islands However, for more than 30 years there has
been no requirement that one be a resident of the Virgin Islands to be a member of the Virgin
Islands Bar, see Barnard v Thorsterm, 489 U S 546 (1989), and in fact a substantial number of
the regular members of the Virgin Islands Bar reside outside of the Virgin Islands, particularly
since this Court adopted the Uniform Bar Exam and admission on motion To the extent there is
any uncertainty, we remind the Bar Association that a regular member of the Virgin Islands Bar
who resides outside of the Virgin Islands
whether it may be in the mainland United States,
another United States territory, or even a foreign country
has the same rights and privileges as a
regular member of the Virgin Islands Bar who resides in the Virgin Islands, including the right to
so that they can determine whether to mutually agree to this arrangement
Moreover, the Virgin
Islands Rules of Professional Conduct
which bind both the regularly admitted attorney and the
pm hac wee applicant
require that a lawyer provide competent representation; consult with and
communicate with the client, including establishing the scope of the representation and fee, and
take the required steps to avoid conflicts of interest
See V I S CT R 211
1
l 211
l 2 211
l 4
2ll 14
211
l 5‘ 2|]
1 7
211
l 10 To comply with these ethical duties
both the regularly
admitted attorney and the pro hac vice applicant would necessarily need to interact with the client,
conduct research and become familiar with Virgin Islands law as a prerequisite to even filing an
application for pro hac Vice admission
1] l4
Nor is there a categorical ban on such interactions or related activities after a pro hac
wee application has been filed but before the applicant has been administered the oath of
admission As this Court has repeatedly emphasized,
the practice of law encompasses all matters
implicating the rights and remedies of clients ”
In re Kershaw, 70 VI
859, 864 (VI 2019)
(quoting In re Jma'al 69 V I 942 949 (V I 2018)) (emphasis added)
After making the decision
to apply forpro hac woe admission, thepro hac Vice applicant need not cease all interactions with
the regularly admitted attorney or the client, decline to read transcripts or perform any legal
research, and otherwise pretend that the matter does not exist Researching Virgin Islands law for
the purpose of achieving competence as required by Rule 211
l
1 does not implicate the rights
and remedies of a client Neither does continuing to become abreast of factual or procedural
developments in the matter including communicating with the client and the regularly admitted
attorney The same would certainly be true of a wide variety of other pre admission activities
11 15
Of course, as our precedents illustrate, there are a wide variety of activities in which
applicant can research Virgin Islands law for the purpose of gaining competence, the applicant
cannot appear in court or participate in a mediation or arbitration, since those activities clearly
cross the line into implicating the rights and remedies of the client See e g
Kershaw, 70 V I at
864 65' deal 69 V I at 947 In re Nevm.s 60 V I 800 803 (V I 2014) In addition although a
pro hac wee applicant can communicate with the client and the regularly admitted attorney, the
applicant cannot send a demand letter on behalf of the client to the opposing party See e g
In re
De Luna 60 V I 683 686 (V I 2014)
1] 16
Moreover, to the extent that some members of the Bar Association may believe that the
conduct this Court has identified as the unauthorized practice of law is permissible in most other
jurisdictions, they are mistaken See
e g
In re Romold, 249 P 3d 1199
1208 (Kan 20l 1),
Kennedy
1
Bar Ass n of Montgomery County
Inc
561 A 2d 200
208 (Md
I989) We
acknowledge of course, that Model Rule 5 S(c)(2) would permit an attorney licensed in another
jurisdiction to temporarily practice in the Virgin Islands if he or she ‘reasonably expects
to
receive pro hac VICE admission But neitherpro hac vice admission nor any bar admission for that
matter can be dismissed as a mere formality that one can reasonably expect to have granted This
is particularly true given thatpro hac wee admission in the courts of the Virgin Islands is not as of
right, but a matter ofjudicial discretion, see In re Motyltnskl 60 V I 621, 635 (V I 2014) (quoting
V I S CT R 201(a)), and thus one cannot reasonably expect it to be granted See Lem v Flynt, 439
U S 438 442 43 (1979)
1] 17
Additionally, while many United States jurisdictions have adopted Model Rule 5 5,
most have not done so without modification In fact, the American Bar Association, through its
Center for Innovation recently released the results of a study of the disciplinary rules ad0pted by
adopted Model Rule 5 5 as is or with minor revisions, while a staggering 96 1% either have
adopted it with
significant changes
or not at all
1‘ While many jurisdictions adopted Model Rule
5 5(c) and only changed other portions of the rule, a significant number ofjurisdictions, including
but not limited to Alabama, California, Connecticut
the District of Columbia, Kentucky,
Mississippi, New Mexico, Nevada, North Dakota South Carolina, South Dakota, Tennessee,
Texas, Virginia West Virginia, and Wyoming, either deleted the
reasonably expects
language
entirely or placed additional restrictions on its use that are not included in the Model Rule 5 5(c),
such as limiting the number of matters on which one may work; conditioning the authorization on
registration with, payment of a fee to, or obtaining a license from a court or disciplinary authority,
mandating association with local counsel, or limiting the authorization only to attorneys from
certain reciprocal jurisdictions or to the representation of a client in the jurisdiction the attorney is
licensed
Given
the
substantial
diversity
in
how
United
States
jurisdictions
address
multijurisdictional practice and the unauthorized practice of law, this Court is not convinced that
the rules we have already adopted are such a departure from
standard practice” so as to warrant
amendment
11 18
We are cognizant, however, of the importance of this issue to the Bar Association
Therefore, despite our doubt as
to the advisability of the proposed rule amendment, we
nevertheless refer the Bar Association 5 request to the Advisory Committee on Rules pursuant to
Rule 37(b) of the Virgin Islands Rules of Appellate Procedure
The Advisory Committee may, in
its discretion and pursuant to its ordinary procedures further study the matter solicit and receive
3 AM BAR Ass N CENTER FOR INNOVATION LEGAL INNOVATION REGULATORY SURVEY STATE CHANGES OF MODEL
RULES (2019) available a! httgs
1egalinnovationregulatogsurvey info state changes of model rules
(last visited
comments from the Bar Association and other stakeholders, and
if appropriate suggest
amendments or other changes to Rule 21 l 5 S for consideration by this Court
[1! CONCLLSION
1! 19
This Court commends the Virgin Islands Bar Association, its President, and its Board
of Governors for bringing its concerns to our attention We are mindful that virtually all members
of the Bar take their ethical obligations seriously and that our decision not to incorporate the
language in Model Rule 5 5(0) into Supreme Rule 211 5 5 could have contributed to uncertainty
regarding what precisely those ethical obligations are when interacting with lawyers who are
admitted in other jurisdictions but not the Virgin Islands
While we again decline to adopt Model
Rule 5 5(c), we refer the matter to the Advisory Committee on Rules, and it is our sincere hope
that our reasons for doing so will alleviate this uncertainty and fithher clarify what acts do and do
not, constitute the unauthorized practice of law in the Virgin Islands
Dated this 23rd day of December 2021
ATTEST
XERONIA J H
1
DY ESQ
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.
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3%
g puty Clerk 11
Dated i2
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