Case Caption: In re: Kenth W. RogersCase Number: S. Ct. Civ. No. 2012-0014Date: 04/23/2012Author: Per CuriamCitation: Summary:

After a grievance against a Virgin Islands attorney was brought before a panel of the Ethics and Grievance Committee of the Virgin Islands Bar Association by Disciplinary Counsel, and the attorney failed to identify in writing any contested relevant facts that warranted a hearing. The panel issued a final decision finding that the attorney violated Model Rule 1.5 by charging $1,500 for a one-half hour consultation and preparation of a document, which the panel considered an unreasonable and excessive fee, Model Rule 8.1(b) by knowingly failing to respond to lawful demands for information from the case investigator, and Model Rule 8.4 by engaging in conduct involving dishonesty, fraud, decent, or misrepresentation. The panel ordered a private reprimand sanction, as well as payment of $1,500 in restitution to the grievant. The attorney did not timely request reconsideration under V.I.S.CT.R. 207.4.12(a), and the disposition became final on November 14, 2011. The attorney therefore had 45 from that date in which to appeal the decision to the Supreme Court under V.I.S.CT.R. 207.4.11(a)-(b). The attorney states that he attempted unsuccessfully to file an appeal by conventional means on December 31, 2011, and ultimately filed an appeal styled as a "petition" on February 21, 2012. The 45-day appeal period is a mandatory claims-processing rule rather than a jurisdictional limit on this Court's authority, and thus could be voluntarily waived or involuntarily forfeited by the parties. However, the Ethics and Grievance Committee performs an adjudicative, quasi-judicial function as an arm of this Court, and thus lacks the discretion to independently waive, without this Court's permission, application of any rules established by this Court. To warrant an equitable waiver of a bar governance rule an individual must demonstrate that, as applied in the circumstances the rule is arbitrary and its application would be unrelated to the essential purpose of the rule, and that the granting of a waiver would not be detrimental to the public interest. Equitable waiver of the 45-day appeal period codified in Rule 207.4.11(b) will, absent exceptional or unusual circumstances, ordinarily only be justified if an attorney-respondent can demonstrate that the Committee intentionally or negligently failed to perform its ministerial duties to such an extent that the attorney-respondent could not have timely initiated an appeal. In this case, however, the Committee served its decision upon the attorney on the same day that the Chair affixed her countersignature on the disposition form. Since Supreme Court Rule 16(b) did not provide the attorney with an automatic three-day extension of the time in which to prosecute an appeal, the document electronically filed on February 21, 2012 is untimely even if it were accepted nunc pro tunc to December 31, 2011. Accordingly, the attorney's appeal is dismissed as untimely.

Attachment: Open Document or Opinion