S. Ct. Misc. No. 2012-0016

A petition filed by the Unauthorized Practice of Law Committee of the Virgin Islands Bar Association (UPLC) alleging that a New Jersey attorney engaged in unauthorized practice of law while employed with the Virgin Islands Department of Justice is granted as modified. Title 4, § 443 of the Virgin Islands Code prohibits the unauthorized practice of law and provides that this Court may, through court rule, modify the statutory definition of unauthorized practice of law, Rule 203 expressly states that the Model Rules of Professional Conduct only supersede previously-promulgated court rules pertaining to disciplinary enforcement, and does not purport to modify the statutory definition of unauthorized practice of law. Thus, the UPLC committed no error when it identified § 443 as the applicable legal authority. Authorization to practice law is a prerequisite to performing the duties of an Assistant Attorney General. Constitutional challenge to § 443, both on its face and as applied here, are rejected because the law is not impermissibly vague in all of its applications, and virtually all of the charges against this attorney stem from conduct that is explicitly prohibited. The clear and convincing evidence standard applies in an unauthorized practice of law proceeding, and de novo review is accorded to factual findings and conclusions of law of the UPLC. The record here establishes, by clear and convincing evidence, that the attorney exercised complete and apparently unfettered control over plea negotiations in felony and gun cases, and other significant prosecutorial decisions. He violated the prohibition on unauthorized practice law in making several court appearances, presenting legal arguments and other statements to the Superior Court calculated to persuade the judge, assuming the role of advocate, and by giving legal advice to law enforcement personnel. The attorney also made both written and oral representations holding himself out as rendering service as an attorney who may practice law in the Virgin Islands, issuing letters on Department of Justice letterhead threatening arrest and criminal prosecution, and using the “Esq.” honorific and the “Chief of the Criminal Division” job title. His general use of “Esquire,” “Esq.,” and “Attorney” in emails and other correspondence, even when not in conjunction with specific legal matters, held himself out as rendering legal services, which constitutes unauthorized practice of law. The fact that the attorney is licensed to practice law in New Jersey is irrelevant since these communications occurred in, and were clearly targeted to, residents of the Virgin Islands. Considering the totality of the circumstances, leniency is warranted since the relationship between Model Rule 5.5, § 443, and the Supreme Court Rules was not always clear. However, the attorney was on notice that his conduct violated Virgin Islands law, and the request for a declaratory judgment that he engaged in the unauthorized practice of law in the Virgin Islands, and an order permanently enjoining him from engaging in further unauthorized practice, is granted. In addition, the attorney shall pay a $1500 fine to the Government of the Virgin Islands and reimburse the Virgin Islands Bar Association for the costs of the UPLC investigation.