Case Caption: In re Suspension of Michael A. Joseph, Esq.Case Number: S. Ct. Civ. No. 2012-0119Date: 02/11/2014Author: Per CuriamCitation: Summary:

A consolidated petition for disciplinary action filed by the Ethics and Grievance Committee of the Virgin Islands Bar Association requesting, among other remedies, suspension of an attorney from the practice of law as a sanction for misconduct in numerous matters in the federal courts, is granted as modified. The attorney violated Model Rule 8.1(b) with respect to each of several grievances, but the record does not support a finding that he violated Model Rules 1.3, 1.4, 1.5, 1.16, 3.3, 3.4, and 8.4. Some of the grievances were not initiated for more than a decade and were decided some 14 years after the alleged conduct, such that prejudice must be presumed supporting a laches defense, and the Committee - not the respondent attorney - bore the burden of proving by clear and convincing evidence that no prejudice occurred or that the delay in filing the grievance was otherwise justified. In another grievance, Supreme Court Rule 207.1.2(b) is not interpreted to require a respondent to disclose voluntarily the existence of privileged materials, and to the extent Disciplinary Counsel or the Committee questioned the claim that the documents were privileged, or believed that the attorney had failed to disclose non-privileged documents, the Rule 207.2.8 procedure should have been followed, rather than conducting a hearing without the document, ruling in the attorney's favor on the merits, and then using Model Rule 8.1(b) as a basis to sanction him for omissions that he could reasonably have believed had been excused. The record does not support imposition of sanctions on a sixth matter, raised on the initiative of the Committee, stemming from the attorney's failure to pay restitution to a client, since it was not shown that he willfully refused to pay restitution, as opposed to simply not having the means to pay it. Based the attorney's six separate violations of Model Rule 8.1(b), the appropriate sanction for his misconduct is determined considering the duties violated, the lawyer's mental state, the potential or actual injury caused by his misconduct, and the existence of aggravating or mitigating factors. In light of the aggravating disciplinary issues, a public reprimand, placing the attorney on probation for one year, as well as a requirement for completion of seven credit hours of continuing legal education in the areas of ethics and law firm management, which shall be in addition to the annual 12 credit hours required by Supreme Court Rule 208, is the appropriate sanction imposed for the misconduct involved.

Attachment: Open Document or Opinion