Special Designated Disciplinary Counsel Not Court Employee

An order of the Virgin Islands Supreme Court

THIS MATTER is before the Court pursuant to a motion, filed by the respondent attorney, seeking the disqualification of Kathryn Anne Donnelly, Esq., Special Designated Disciplinary Counsel, from representing the Office of Disciplinary Counsel (“ODC”) in this interim suspension proceeding.  According to the respondent, Attorney Donnelly cannot continue to represent the ODC in this matter because she serves as Special Designated Disciplinary Counsel on a part-time basis while engaged in the part-time private practice of law in New York, which the respondent asserts constitutes a violation of the prohibition on the private of practice of law by judicial officers and court employees codified in title 4, section 288(a) of the Virgin Islands Code.

Attorney Donnelly filed an opposition to the motion on March 21, 2024, acknowledging her ongoing part-time private practice, but failed to specifically respond to the respondent’s claim that it is prohibited by section 288(a). However, Attorney Donnelly stated in that filing that she “is clearly not an ‘employee’ of the Virgin Islands Judiciary.” This Court, in a March 24, 2024 order, took judicial notice that Attorney Donnelly’s representation that she is not an “employee” of the Virgin Islands Judiciary appeared to contradict sworn representations in her application for special admission to the Virgin Islands Bar in which she swore, under oath, that “I am employed or about to be employed as an attorney by: Supreme Court of the Virgin Islands;” “I am employed or about to be employed as an attorney by Office of Disciplinary Counsel;” and “I acknowledge and understand that an admission issued pursuant to this rule shall state its special nature and it shall terminate automatically when the person ceases to be employed by the petitioning agency or instrumentality of the Government of the Virgin Islands.” This Court, therefore, directed Attorney Donnelly to file a response that addresses the seeming inconsistency between the representation in her opposition and the sworn representations made in her application for special admission, and to respond to the respondent’s claim that her maintenance of a private practice in New York violates title 4, section 288 of the Virgin Islands Court.

Held

But even assuming—without deciding—that section 288(a) was not implicitly repealed, it is nevertheless inapplicable to this case because Attorney Donnelly has sufficiently established that she is not an “employee of a court.” Attorney Donnelly has provided this Court with overwhelming evidence that she is not an employee, but an independent contractor. But even if we were to disregard that evidence, section 288(a) does not prohibit the private practice of law by an employee of the Judicial Branch; it prohibits the private practice of law by an “employee of a court.” While the Judicial Branch consists of two courts—the Superior Court and the Supreme Court—it does not consist of only two courts; most notably, it also consists of a Judicial Branch Administrative Office, consisting of staff who provide services to the Judicial Branch and not to an individual court.

Disqualification motion denied. (Mike Frisch)