FOR PUBLICATION



SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX



TERRENCE JOSEPH,

Petitioner,



Vv.



PUBLIC EMPLOYEES RELATIONS

BOARD and GOVERNMENT OF THE

VIRGIN ISLANDS, DEPARTMENT OF

JUSTICE, DIVISION OF PATERNITY AND

CHILD SUPPORT,



CASE NO. SX-15-CV-236



Respondents.



Newer? Name? Nee” Neer” Sener” Sere? Neer” See” “ee? Nee Seer”



Appearances:



KYE WALKER, ESQ.

The Walker Legal Group

Christiansted, VI 00820

For Petitioner



LARRY RAYMOND-ROY, ESQ.



Public Employees Relations Board



Gallows Bay, VI 00824



For Respondent Public Employees Relations Board



JOSS N. SPRINGETTE, ESQ.



Assistant Attorney General



Virgin Islands Department of Justice



Charlotte Amalie, VI 00802



For Respondent Government of the Virgin Islands



MEMORANDUM OPINION AND ORDER

BRADY, Judge.



BEFORE THE COURT is a motion filed by Attorney Joss N. Springette (“Attorney Springette”),

an assistant attorney general with the Virgin Islands Department of Justice, for leave to withdraw as

counsel for the Government of the Virgin Islands, Department of Justice, Division of Paternity and Child

Support (“Government”). Neither the petitioner, Terrence Joseph (“Joseph”), nor the co-respondent,

Public Employees Relations Board (“PERB”), has filed a response. For the reasons explained below, the

Court will construe Attorney Springette’s motion to withdraw as a notice of withdrawal and order the



Government to have substitute counsel appear on its behalf forthwith.

Memorandum Opinion and Order

Joseph v, Publ. Emples. Rels. Bd., et al., SX-15-CV-236

Page 2 of 6



Background

Joseph was terminated from his position as an assistant director with the Virgin Islands Department



of Justice, Division of Paternity and Child Support. He appealed his termination to PERB but PERB

dismissed his appeal, concluding that he was not a regular employee as defined by section 530 of title 3

of the Virgin Islands Code. Joseph then petitioned the Superior Court to issue a writ of review to PERB

to review the decision. Before the petition was granted, PERB and the Government appeared through their

respective counsel. The Government immediately moved to dismiss the petition, which Joseph opposed.

Joseph also twice moved to consolidate his appeal with other appeals (first two and then three) pending in

the Superior Court from PERB that involve the same question of law. Joseph later moved for a ruling on

the Government’s motion to dismiss. The last action in this matter was Attorney Springette’s motion for

leave to withdraw because she was “resigning from the V.I. Department of Justice effective March 17,

2017,” or three days after the motion was filed. (Mot. to Withdraw 1, filed Mar. 14, 2017.) No further

explanation was given and, to date, substitute counsel has not appeared for the Government in place of

Attorney Springette.

Discussion



Virgin Islands Rule of Civil Procedure 6-5 governs the withdrawal of attorneys. See V.I. R. Civ.

P. 6-5 (“No attorney may withdraw an appearance except with leave of court after notice to the attorney’s

client.”).! Attorney Springette did not cite this rule—or any rule—in support of her motion. She did not

state that she gave notice to her “client.” Attorney Springette’s client is the Government of the Virgin

Islands and the Virgin Islands Department of Justice, rather than Attorney Springette personally and

individually, represents the Government of the Virgin Islands. See 3 V.I.C. § 114(a)(1). In this context, it

is pointless to require that an individual assistant attorney general leaving her position with that office

comply with Rule 6-5, because the office of the Attorney General of the Virgin Islands continues to



represent the Government.



' The Virgin Islands Rules of Procedure took effect March 31, 2017, two weeks after Attorney Springette filed her motion. See

generally In re: Adoption of the V.1. Rules of Civ. P., Prom No. 2017-002, 2017 V.I. Supreme LEXIS 22, *]-2 (V.[. Apr. 3,

2017). Pursuant to Rule 1-1(c)(2), the new rules govern in all civil actions pending on March 31, 2017 absent a contrary order

from the Supreme Court or an express finding of this Court that application of the new rules would be infeasible or work an

injustice. No such order or finding is made here. Presumably substantively consistent Rule 5.2 of the Local Rules of Civil

Procedure would have previously governed, through Superior Court Rule 7. See D.V.1. Local. R. Civ. P. 5.2(b) (“No attorney

may withdraw an appearance except with leave of Court after notice to the attorney's client. All motions for withdrawal as

counsel should include a verified statement as to contact with or attempts to contact the client concerning such withdrawal and

an indication of service upon or efforts to serve the client with the moving papers.”).

Memorandum Opinion and Order

Joseph v. Publ. Emples. Rels. Bd., et al., SX-15-CV-236

Page 3 of 6



Inconsistent with the mandate of Rule 6-5, that no attorney may withdraw an appearance except

with leave of court, Virgin Islands Rule of Professional Responsibility 211 directs that “[a] lawyer must

comply with applicable law requiring notice to or permission of a tribunal when terminating a

representation. When ordered to do so by a tribunal, a lawyer shall continue representation

notwithstanding good cause for terminating the representation.” V.I. S. Ct. R. 211.1.16(c). That is, Rule

211 recognizes that a lawyer may withdraw her or his representation either on “notice to” or with

“permission” from a court or other tribunal. It follows then, contrary to Rule 6-5, that not every attorney

must be granted leave to withdraw if some may withdraw on notice. The question then is which attorneys

in what circumstances may withdraw on notice and without leave of court. Under certain circumstances,

courts may refuse to allow an attorney to withdraw from a case. See Cianci v. Chaput, 64 V.I. 682, 698

(V.I. 2016) (granting “motion to withdraw so late in the proceedings would have resulted in prejudice to

both parties and unnecessarily delayed the conclusion of the matter, contrary to the interests of judicial

economy.”).



Assistant attorneys general are appointed by the Governor of the Virgin Islands and may be

removed by the Governor of the Virgin Islands at any time. See 3 V.I.C. § 113(a) (“The Assistant

Attorneys General shall be appointed by the Governor, and shall hold office during the continuance in

office of the Governor by whom they are appointed and until their successors are appointed and qualified,

unless sooner removed by the Governor.”); cf Gov't of the VI. v. United Indus., Servs. Transp., Prof. &

Gov't Workers of N. Am. Seafarers Int'l Union, 57 V.1. 649, 658 (V.I. 2012) (“[S]ection 113 not only vests

the Governor with the power to remove an Assistant Attorney General, but provides that an Assistant

Attorney General’s appointment terminates upon the conclusion of the term of the Governor who

appointed him or her.”), vacated by 61 V.I. 753 (3d Cir. 2014), cert denied 135 S. Ct. 1734 (2015).

Similarly, courts cannot “choose specific public defenders to represent defendants, as opposed to the

Office of the Territorial Public Defender as an entity,” Jn re: Joseph, 65 V.I. at 228, because “‘the

Legislature vested . . . oversight’” of Office of the Territorial Public Defender in “‘the Public Defender

Administration Board.’” /d. at 231 (quoting Fontaine v. People, 59 V.I. 1004, 1011-12 (V.I. 2013)). It

follows that courts similarly cannot compel the Governor to retain a particular assistant attorney general

or refuse to allow an assistant attorney general to withdraw her or his representation. “[T]he separation of

powers doctrine applies to each branch of our tripartite system of government. Thus, unless expressly



provided or incidental to the powers conferred, the legislature exercises neither executive nor judicial

Memorandum Opinion and Order

Joseph v. Publ. Emples. Rels. Bd., et al., SX-15-CV-236

Page 4 of 6



power, the executive cannot exercise legislative or judicial power, and the judiciary may not exercise

either executive or legislative power.” Jn re: Joseph, 65 V.1. at 224 (citations omitted).



Here, Attorney Springette filed motion to withdraw because she is resigning from the Department

of Justice. “Any application—whether orally or in writing—made to a court or judge for the purpose of

obtaining a ruling or order directing some act to be done in favor of the applicant in a pending case is a

motion.” Der Weer v. Hess Oil VI. Corp., 64 V.I. 107, 128-29 (Super. Ct. 2016) (quotation marks,

brackets, and citations omitted). But calling a document a motion does not necessarily mean that the

document is a motion since “regardless of its [title] . . . ultimately it is the substance . . . that controls.”

Abednego v. St. Croix Alumina, LLC, 63 V.I. 153, 174 (Super. Ct. 2015) (citing Jsland Tile & Marble,

LLC v. Bertrand, 57 V.1. 596, 612 (V.I. 2012)). In this instance, Attorney Springette’s “motion” is not a

motion because she cannot here “obtain{] a ruling or order directing some act to be done in favor of the

applicant in a pending case.” Der Weer, 64 V.I. at 128-29. The filing of a motion presupposes that the

court has authority to rule on the motion and can either grant or deny the relief sought. Cf FP/ Dev., Inc.

v. Nakashima, 282 Cal. Rptr. 508, 516 (Ct. App. 1991) (“The procedure for resolving a summary judgment

motion presupposes that the pleadings are adequate to put in issue a cause of action or defense thereto.”

(citation omitted)); see also Hartford Fire Ins. Co. v. Evergreen Org., Inc., 410 F. Supp. 2d 180, 183-84

(S.D.N.Y. 2006) (“[S]ubjecting a party to the rules of the court presupposes the court’s power over it.”

(footnoted citation omitted)). Because the Court cannot refuse to allow Attorney Springette to withdraw,

it follows that the Court also cannot grant her leave to withdraw because the power to grant relief

necessarily implies the power to deny it.



Yet, an even more straightforward reason exists that makes clear that an assistant attorney general

does not need court approval to withdraw—because counsel of record is the Virgin Islands Department of

Justice, not, in this case, Attorney Springette. Cf Carreno v. City of Newark, 834 F. Supp. 2d 217, 226

(D.N.J. 2011) (“A municipality’s lawyers are usually considered a single office and legal unit. . . . This is

similar to private clients and law firms, where the firm is counsel of record, not just the individual lawyers

who may work on the case.”). When an attorney who is associated with or is a member of a law firm

makes an appearance in a case, it is the law firm who appears as attorney of record for the party, not the

individual attorney working on the case. Cf Roger C. Cramton, George M. Cohen, & Susan P. Koniak,

Legal and Ethical Duties of Lawyers After Sarbanes-Oxley, 49 Vill. L. Rev. 725, 750 (2004) (“Corporate

clients who hire outside counsel usually understand that they are represented by the law firm, not any one



individual lawyer within the firm.”). So too here. The Virgin Islands Department of Justice is not seeking

Memorandum Opinion and Order

Joseph v, Publ. Emples. Rels. Bd., et al., SX-15-CV-236

Page 5 of 6



leave to withdraw as counsel for the Government. Rather, an individual attorney within the Department

gave notice that her tenure would soon come to an end. Consequently, Attorney Springette’s motion is not

a true motion despite its title. Instead, Attorney Springette’s motion is a notice of withdrawal. It will be

construed as such.



This determination makes it necessary to address one final concern—that Attorney Springette did

not designate substitute counsel in her “motion,” nor has substitute counsel appeared since Attorney

Springette withdrew her representation over a year ago. Courts should not have to order the Virgin Islands

Department of Justice to have counsel enter an appearance on behalf of the Government of the Virgin

Islands in a civil case or on behalf of the People of the Virgin Islands in a criminal case. 3 V.I.C. §

114(a)(1), (2) and (3); cf Super. Ct. R. 132 (“The Attorney General of the Virgin Islands, or an Assistant

Attorney General, shall conduct all criminal proceedings on behalf of the Government of the Virgin

Islands in the superior court.”). Here, because Attorney Springette’s “motion” has not been ruled upon,

the Government arguably could attribute its inaction to the fact that it is still awaiting a ruling on the

motion. To avoid the potential for this issue to recur, the Court holds that assistant attorneys general

withdrawing their representation shall designate substitute counsel in their notices of withdrawal.



Further, because the Court’s decision may require a change to the Virgin Islands’ rules of

procedure, the Court will further direct that a copy of this Opinion and Order be forwarded to the Advisory

Committee on Rules. Accord Hall v. Hall, 584 U.S. , —_—_—«5, 2018 U.S. LEXIS 2062, *29 (Mar. 27,

2018) (“If... our holding in this case were to give rise to practical problems for district courts and litigants,

the appropriate Federal Rules Advisory Committees would certainly remain free to take the matter up and

recommend revisions accordingly.”); see also People v. Hatcher, SX-14-CR-131, Vi. ; ,

2018 V.I. LEXIS 29, *11-12 (V.I. Super. Ct. Mar. 8, 2018) (alerting the clerk of court to consider revising

standard court forms (citing Tucker v. Resha, 648 So. 2d 1187, 1190 (Fla. 1994)); cf V.I. R. Civ. P. 6-5

(“No attorney may withdraw an appearance except with leave of court affer notice to the attorney’s client.”

(emphasis added)).



Accordingly, for the reasons set forth above, it is hereby



ORDERED that the motion to withdraw filed by Ross N. Springette, Esq. on March 14, 2017 is

CONSTRUED as a notice of withdrawal. It is further

Memorandum Opinion and Order



Joseph v. Publ. Emples, Rels. Bd., et al., SX-11-CV-236



Page 6 of 6



ORDERED that, within fourteen (14) days from the date of entry of this Memorandum Opinion



and Order, Respondent Government of the Virgin Islands shall have counsel file a notice of appearance



on its behalf in this matter. It is further



ORDERED that a copy of this Memorandum Opinion and Order be served on Attorney General



Claude E. Walker, Esq., Kye Walker, Esq., and Larry Raymond-Roy, Esq., FORTHWITH, and that a



copy be forwarded to the Advisory Committee on Rules.



Dated: April ? , 2018.



DOUGLAS A. BRADY



ATTEST:



Judge of the Superior Court



ESTRELLA H. GEORGE



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Clerk of the Court



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