Refusing Appointment Leads To Criminal Contempt And Bar Referral

The Virgin Islands Supreme Court has affirmed a criminal contempt against an attorney appointed to represent a juvenile who sought to decline the honor

Sheesley filed a motion on December 21, 2016, which he captioned “Motion To Be Relieved of Involuntary Appointment.” In his motion, Sheesley, relying on the decision of this Court in In re Holcombe, 63 V.I. 800 (V.I. 2015)—which invalidated the Superior Court’s general practice of involuntarily conscripting members of the Virgin Islands Bar to serve as appointed counsel for indigent criminal defendants—argued that the December 20, 2016 order was invalid because he did not volunteer to join a private attorney panel as authorized by 5 V.I.C. § 3503(a), and that it would otherwise be a hardship for him to accept the representation.

The Superior Court did not rule on Sheesley’s motion before the January 3, 2017 hearing. N.R. appeared at the hearing represented by Simone Vanholten-Turnbull, Esq.—an assistant territorial public defender, while [putative client] M.P.J.H. and Sheesley also attended. However, shortly after the hearing began, Sheesley orally moved to be relieved of the appointment. The Superior Court stated that the motion “ha[d] been received” and would “be acted on at an appropriate time,” and that Sheesley would therefore be “required to proceed with this initial hearing.” Nevertheless, Sheesley persisted in arguing that his appointment was invalid pursuant to Holcombe. When the Superior Court interrupted his argument and reiterated that it would address the motion at another time and would move forward with the initial hearing, Sheesley announced that he “can’t move forward.”

Notwithstanding Sheesley’s refusal, the Superior Court proceeded with the initial hearing, and heard from both Vanholten-Turnbull and counsel for the People while Sheesley remained silent. Eventually, the Superior Court asked Sheesley if he had an opportunity to review the juvenile complaint with M.P.J.H. and his parents. Sheesley replied that he did not review the complaint and that he was not entering an appearance in the matter, but that he gave the complaint to M.P.J.H. The Superior Court asked Sheesley if he has “refused to honor the appointment and represent the minor in this matter,” to which Sheesley replied “Yes, Your Honor.” After further discussion, the Superior Court permitted Sheesley to be seated, and inquired with M.P.J.H.’s mother as to whether Sheesley had showed her the complaint, to which she stated that he did not, but had placed it to her son’s side and told him to look at it. At this point, the Superior Court announced that “Sheesley ha[d] failed to perform his duties as Court Appointed Counsel in this matter,” that Sheesley’s motion would be dealt with at another time, and that it would require Vanholten-Turnbull to represent M.P.J.H. for the limited purpose of entering a plea to the juvenile complaint. Vanholten-Turnbull reviewed the complaint with M.P.J.H. and his parents, and entered a plea of “not delinquent” to all counts. Thereafter, the Superior Court set additional hearing dates and deadlines, established conditions for the minors’ release, and adjourned the hearing.

The trial court then entered a show cause order and denied the motion to withdraw.

While the Superior Court acknowledged that Rule 211.6.2 of the Virgin Islands Rules of Professional Conduct permits an attorney to avoid appointment by a tribunal for good cause, it concluded that the reasons Sheesley proffered in his motion—that he is a solo practitioner, that he has volunteered to accept federal appointments through the CJA Panel for the United States District Court of the Virgin Islands, and that he engages in extensive community service—did not constitute good cause to support relieving him of the appointment.

Then 

On January 19, 2017—the day before the scheduled January 20, 2017 show cause hearing—Sheesley filed a document captioned “Notice of Unavailability.” In that filing, Sheesley stated that he could not appear at the show cause hearing because at 9:00 AM he would be “participating in [a] ‘Kids in the Court’ program, held in the District Court of the Virgin Islands, where he volunteers his time to participate in mock trials for elementary school and high school students in the Virgin Islands and talk with the students about his experiences in life and as a lawyer,” and that “[t]he Judge is welcome to come next door to observe the program.” He further stated that at 11:30 A.M. he “has a hearing at the Department of Labor for one of his long-term, paying clients; a client that [he] has an ethical, professional, fiduciary and personal responsibility to represent.” Sheesley concluded by again invoking the Holcombe decision and reiterating that he “has never voluntarily or otherwise accepted an appointment in the above captioned case” and asserted that “[t]he Court’s continued attempts to conscript [his] time, and steal money from him, at what amounts to gunpoint with the threat of force, has no legal basis and is morally wrong.”

He failed to appear but did participate in the rescheduled hearing where he reiterated his position. 

Sheesley asserted that “if this court not only wants to point a gun at me and rob me, but then tell me that I could commit misconduct against another client, that’s doubly wrong.” When the Superior Court asked Sheesley if he had anything else to say with respect to the show cause, he replied that “[i]t’s absurd that I am wasting more of my time with this” because “[t]here is a set rule” that “has not been followed.”

Contempt was found and appealed here.

The court found he was granted due process and that judicial disqualification was unwarranted.

The evidence of contempt was sufficient

the Superior Court expressly found that “Sheesley’s conduct was beyond a reasonable doubt calculative and willfully done . . . to destroy any chance of a meaningful attorney-client relationship between himself and the minor,” and that “Sheesley’s misconduct was intentionally designed so that he could be relieved from the Court’s appointment.” Although these findings are specific, Sheesley makes no argument whatsoever in his brief that they are clearly erroneous or not supported by the record. Therefore, we conclude that the record contains sufficient evidence to support a criminal contempt conviction on an obstruction of the administration of justice theory.

He had several options other than his chosen path

What Sheesley could not do was unilaterally refuse to abide by the December 20, 2016 appointment order simply because he believed it was an erroneous application of Virgin Islands law. Yet that is precisely what he did at the January 3, 2017 hearing, when the Superior Court directly asked if he was “refus[ing] to honor the appointment and represent the minor in this matter,” to which he replied “Yes, Your Honor.” Under these circumstances, the evidence is more than sufficient to sustain the Superior Court’s decision to hold Sheesley in criminal contempt for his willful disobedience of the December 20, 2016 appointment order at the January 3, 2017 hearing.

The court also affirmed a civil contempt.

Last but not least

Although not raised by Sheesley in his appellate brief, the People devote a substantial portion of their appellate brief to arguing that Sheesley violated several provisions of the Virgin Islands Rules of Professional Conduct with respect to his conduct in the underlying matter…

Here, there is an extremely high likelihood—if not a certainty—that Sheesley has violated Rule 211.1.16(c), in that he stated, on the record, that he would not represent M.J.P.H. at the January 3, 2017 hearing even though the Superior Court expressly ordered him to do so. Likewise, there is a substantial likelihood that Sheesley’s refusal, combined with his highly abusive and inflammatory language, rose to the level of disrupting the proceedings in violation of Rule 211.3.5(d). Moreover, having been convicted of criminal contempt—which both this Court and the Supreme Court of the United States have described as “a crime in the ordinary sense,” see Rogers, 56 V.I. at 335 (quoting Bagwell, 512 U.S. at 826)—Sheesley may also be in violation of Rule 211.8.4(b) (“It is professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”), and depending on how the criminal contempt conviction is characterized may be obligated to self-report the conviction to the Office of Disciplinary Counsel for appropriate action. See, e.g., V.I.S.CT.R. 207.16.

 Under these circumstances, we refer this matter to the Office of Disciplinary Counsel and the Board on Professional Responsibility to take suitable action, if appropriate and to the extent it has not already been done. In doing so, we emphasize, as we have done in past cases, that our referral to these disciplinary authorities is not a sanction in and of itself, but simply a finding that Attorney Sheesley’s conduct merits further examination by the disciplinary board.

(Mike Frisch)