The Family Attorney

The Virgin Islands Supreme Court concluded that it lacked jurisdiction to consider an appeal of an order disqualifying counsel in litigation involving a trust

On December 8, 2021, the Superior Court held a status conference to address the pending motions in the case, including O’Bryan-Johnson’s motion to disqualify Attorney Caines. O’Bryan Johnson argued that Attorney Caines’ representation of Henneman-Todman was “a very clear violation of [the] duties owed to former clients” because Attorney Caines was “the family attorney” and “now is coming forward to represent a third party against the trust” when it is “likely” that he will be needed to testify as a witness. Attorney Caines, on behalf of Henneman-Todman, argued that he did not have a conflict of interest sufficient to disqualify him because his knowledge about the trust did not give him any advantage in his representation of Henneman-Todman since Mrs. O’Bryan’s intent was clearly stated in the trust document. Furthermore, Attorney Caines countered that he was not seeking to invalidate the trust, and just intended to sue O’Bryan-Johnson individually because she breached the agreement she made with Henneman-Todman. At the close of the hearing, Attorney Caines asked the Superior Court “to amend the complaint to make it clear that the cause of action is against Mrs. O’Bryan-Johnson in her individual capacity” and not in her role as trustee. The Superior Court denied the oral motion and directed Attorney Caines to file a motion in writing, which he filed on December 21, 2021

On June 14, 2022, the Superior Court granted O’Bryan-Johnson’s motion to disqualify Attorney Caines after finding that he had violated Rule 211.1.74 of the Virgin Islands Rules of Professional Conduct, which prohibits concurrent conflicts of interest. According to the Superior Court, because Attorney Caines drafted the trust, he had intimate knowledge about it, and consequently his representation of Henneman-Todman bore a “significant risk of being ‘materially limited’ by his former representation of Mrs. O’ Bryan.” The Superior Court was not persuaded by Attorney Caines’ argument that he was not seeking to invalidate the trust because “[d]espite Attorney Caines’ intention to sue Johnson as an individual Attorney Caines sued O’Bryan Johnson as a trustee.” In a separate order, the Superior Court denied the motion to amend the complaint because Attorney Caines was disqualified from the representation. Henneman-Todman timely filed a notice of appeal on July 8, 2022.

The court further held that the requirements for collateral order exception to the final order doctrine had not been met. (Mike Frisch)