In re: EVERETT LE BLANC and LEE J. ROHN
In re Le Blanc
In re: EVERETT LE BLANC and LEE J. ROHN
In re: EVERETT LE BLANC and LEE J. ROHN
S. Ct. Civ. No. 2007-079
Supreme Court of the Virgin Islands
June 26, 2008
K. Glenda Cameron, Esq., Rohn and Cameron, St. Croix, U.S.V.I., Attorney for Petitioners.
SWAN, Associate Justice; CABRET, Associate Justice, concurring.
OPINION OF THE COURT
(June 26, 2008)
Everett Le Blanc, Lee J. Rohn ("Rohn"), and the Law Offices of Rohn and Cameron (collectively "Petitioners") filed a petition protractively titled "Petition for Writ of Mandamus to Require the Superior Court Presiding Judge Donohue to Apply Virgin Islands Law to Petitioner's Request for Interlocutory Appeal of the Court's Order Disqualifying Counsel in this Matter" ("petition"). For the reasons explicated below, we will deny the petition for a writ of mandamus.
I. FACTS AND PROCEDURAL HISTORY
In 1998, Everett Le Blanc ("Le Blanc") was allegedly injured in a worksite accident, thereby prompting the underlying suit. During the alleged accident, Le Blanc purportedly suffered an electric shock, fell to the ground from a significant height, and sustained injuries, while performing electrical work for the Virgin Islands Water and Power Authority ("WAPA").
On April 20, 1999, Le Blanc filed a verified complaint, alleging that WAPA is liable for the injuries he sustained, damages he suffered, and losses he incurred as a result of the accident. While conducting discovery, Petitioners attempted to depose Richard Jensen ("Jensen"), an electrician supervisor at WAPA. Jensen's deposition was scheduled for May 14, 2001. However, on May 14, 2001, Petitioners cancelled the deposition. Jensen's deposition was rescheduled for June 18, 2001. This second attempt to take Jensen's deposition was also aborted.
In a July 24,2001 affidavit, Rohn explained that during a June 18,2001 telephone call from Julio Brady, Esq. ("Brady"), Jensen's attorney, Brady disclosed his representation of Jensen generally and specifically in Jensen's employment dispute with WAPA. Rohn averred that Brady stated that "Jensen did not wish to be deposed and that [Jensen] had a problem with attending the deposition as noticed, but was willing to give a voluntary statement in lieu of his deposition, and inquired . . . whether such a statement would suffice." According to her affidavit, Rohn elected to take Jensen's voluntary statement in her office without Brady being present, because Brady stated that it was unnecessary for him to accompany Jensen to Rohn's office for Jensen to give his statement to Rohn. Subsequently, Jensen visited Rohn's law office, and during his visit Rohn took Jensen's statement. No WAPA representative was present during Jensen's visit to Rohn's office.
In Jensen's affidavit that he gave to Rohn, Jensen admitted that it was his duty to ensure Le Blanc's worksite safety. Jensen further admitted that he failed to inspect a defective fixture before it was installed. Jensen also admitted that LeBlane's injuries could have been prevented had Jensen inspected the fixture before it was installed.
WAPA complained that although Jensen was on extended unpaid sick leave at the time he gave the affidavit to Rohn, he was nevertheless a WAPA supervisory employee. Therefore, Rohn's contact with Jensen violated Rule 4.2 of the Model Rules of Professional Conduct ("Rule 4.2"), which prohibits opposing counsel's communication with represented persons about the subject of the representation, outside the presence of counsel for the represented persons. The Superior Court agreed with WAPA's contention and entered a January 31, 2007 order, attested on February 1, 2007, which disqualified the "Law Offices of Lee J. Rohn" as counsel in the underlying case, Everett Le Blanc v. Virgin Islands Water & Power Authority, Civ. No. 99/238, which is pending in the Superior Court.
Rohn moved the Superior Court to certify the issue of her January 31, 2007 disqualification for an interlocutory appeal. In its May 11, 2007 Order, the Superior Court considered Rohn's motion for an interlocutory appeal and denied it based upon the premises contained in Rohn's motion. Petitioners now seek a writ of mandamus to compel the Superior Court to apply Virgin Islands law, to vacate its May 11, 2007 order, and to recommend the disqualification issue for interlocutory appeal. Also, Rohn asserts that the trial court applied an erroneous standard when it applied federal law instead of local law, in denying her motion seeking the trial court's recommendation for an interlocutory appeal.
Petitioners' request for a writ of mandamus presents two issues. The first issue is whether this Court can issue a writ of mandamus to compel the trial court to recommend or certify for interlocutory appeal an order disqualifying a counsel of record, when the disqualified counsel claims that the trial court relied on federal law rather than on local law in reaching its decision. The second issue is whether this Court should issue a writ of mandamus to a trial court when the trial court refuses to enter an order, allowing an interlocutory appeal from its order disqualifying a counsel of record, pursuant to Rule 4.2 of the Model Rules of Professional Conduct.
II. DISCUSSION
A. This Court's Jurisdiction
This Court has jurisdiction over this matter pursuant to title 4, section 32(b) of the Virgin Islands Code. Rule 13 of the Virgin Islands Supreme Court Rules governs petitions for writs of mandamus before this Court. In pertinent part, this Rule provides that:
The petition shall contain a statement of the facts necessary to understand the issues presented by the application; a statement of the issues presented and of the relief sought; a statement of the reasons why the writ should issue; and copies of any order or opinion or parts of the record which may be essential to understand the matters set forth in the petition.
V.I. S. Ct. R. 13 (emphases added).
In their petition, Petitioners enclosed copies of the following documents for the record. The first document supporting Petitioners' petition is the trial court's March 27, 2007 order, striking from the trial court's record Petitioners' motion for the trial court to recommend its January 31, 2007 order for interlocutory appeal because of noncompliance with the trial court's filing procedures. (App. to Pet. at 2.) The second document offered in support of the petition is the trial court's January 31,2007 order granting defendant's motion for disqualification of Rohn. (App. to Pet. at 4.) The third document filed by Petitioners to support their petition is Petitioners' motion to certify the trial court's February 1, 2007 order for interlocutory appeal which is also incorporated by reference in the petition (Pet. at 11; App. to Pet. at 13).
Significantly, the petition does not include a copy of the trial court's May 11, 2007 order. This order denied Petitioners' motion for the trial court to certify its January 31, 2007 order for interlocutory appeal. Our Rule 13 instructs that an order, such as the trial court's May 11, 2007 order, be made a part of the Petitioner's petition for a writ of mandamus, if the order is essential for this Court to understand the matters set forth in the petition. Although not presented by Petitioners, we sua sponte reviewed the trial court's May 11, 2007 order, because we consider that order important to our understanding the issues enumerated in the petition.
B. Standards for Writ of Mandamus
"The traditional use of the writ in aid of appellate jurisdiction . has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 63 S. Ct. 938, 87 L. Ed. 1185 (1943); In re Patenaude, 210 F.3d 135, 141 (3d Cir. 2000); In re Briscoe, 448 F.3d 201, 212 (3d Cir. 2001). "The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations." Kerr v. U.S. Dist. Court for the N. Dist. of Cal., 426 U.S. 394, 402, 96 S. Ct. 2119, 48 L. Ed. 2d 725 (1976). It is noteworthy that mandamus "is seldom issued and its use is discouraged." Lusardi v. Lechner, 855 F.2d 1062, 1069 (3d Cir. 1988); In re Chambers Dev. Co., 148 F.3d 214, 223 (3d Cir. 1998). Similarly, "[o]nly exceptional circumstances amounting to a judicial usurpation of power will justify the invocation of this extraordinary remedy." Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S. Ct. 188, 66 L. Ed. 2d 193 (1980); Will v. United States, 389 U.S. 90, 95, 88 S. Ct. 269, 19 L. Ed. 2d 305 (1967); In re Chambers Dev. Co., 148 F.3d at 223; see also Hahnemann Univ. Hosp. v. Edgar, 74 F.3d 456, 462 (3d Cir. 1996). Further, "[m]andamus is disfavored because its broad use would threaten the policy and established precedent against piecemeal appeals." In re Sch. Asbestos Litig., 977 F.2d 764, 772 (3d Cir. 1992).
In Cheney v. U. S. Dist. Court for the D. C., 542 U.S. 367, 380-381, 124 S. Ct. 2576, 159 L. Ed. 2d 459 (2004), the United States Supreme Court expounded on the three prerequisites upon which mandamus may lie:
As the writ is one of the most potent weapons in the judicial arsenal, three conditions must be satisfied before it may issue. First, the party seeking issuance of the writ must have no other adequate means to attain the relief he desires,—a condition designed to ensure that the writ will not be used as a substitute for the regular appeals process. Second, the petitioner must satisfy the burden of showing that his right to issuance of the writ is clear and indisputable. Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.
(Internal citations and quotations omitted). See also In re Pressman-Gutman Co., Inc., 459 F.3d 383, 399 (3d Cir. 2006).
As to the first condition, we agree that "[w]here there are practical avenues for seeking relief that are untried, this Court will ordinarily deny a petition for mandamus." In re Patenaude, 210 F.3d at 141. Additionally, "a petitioner cannot claim the lack of other means to relief, if an appeal taken in due course after entry of a final judgment would provide an adequate alternative to review by mandamus." In re Briscoe, 448 F.3d at 212.
To satisfy the second condition, Rohn must establish that her right to the writ is clear and indisputable. In re Briscoe, 448 F.3d at 212; In re Patenaude, 210 F.3d at 141. A clear and indisputable right to the writ exists where the petitioner demonstrates that the lower court committed a clear error of law or clearly abused its discretion. Id. However, "[w]here a matter is committed to discretion, it cannot be said that a litigant's right to a particular result is 'clear and indisputable.'" Allied Chemical Corp., 449 U.S. at 36 (quoting Will, 437 U.S. at 666).
For the third condition, this Court, in its discretion, must determine that the circumstances justify issuing a writ. "[M]ere error, even gross error in a particular case, as distinguished from a calculated and repeated disregard of governing rules, does not suffice to support issuance of the writ." United States v. DiStefano, 464 F.2d 845, 850 (2d Cir. 1972). "But even where a petitioner satisfies its burden of demonstrating the existence of the first two prerequisites, the availability of the writ does not compel its exercise." In re Patenaude, 210 F.3d at 141. Legal precedent instructs that in considering a petition for writ of mandamus, "the reviewing court in its discretion must conclude that the writ 'is appropriate under the circumstances.'" In re Briscoe, 448 F.3d at 212 (quoting Cheney, 542 U.S. at 381); see also In re Patenaude, 210 F.3d at 141; In re Chambers Dev., 148 F.3d at 223. After applying the pertinent legal precedent to this case, we conclude that Petitioners failed to satisfy the prerequisites for a writ of mandamus.
1. Petitioners Can Appeal Disqualification at the End of the Case
The petition in this case must be denied, because Petitioners can file an appeal after a final judgment in the trial court. In Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 105 S. Ct. 2757, 86 L. Ed. 2d 340 (1985), the Supreme Court decided whether an interlocutory appeal was available to an attorney who was disqualified in a civil case. The trial court disqualified counsel and their law firm and revoked their pro hac vice admissions, because certain information was released to the media and because of improper contacts with a witness. Id. at 429. The Circuit Court of Appeals for the District of Columbia reversed. Id. The United States Supreme Court granted certiorari and reversed the appellate court, concluding that an order disqualifying counsel was not a final order and not immediately appealable. Id. The Roller court rejected a case-by-case approach to counsel disqualification cases, concluding that "orders disqualifying counsel in civil cases, as a class, are not sufficiently separable from the merits to qualify for interlocutory appeal." Id. at 440 (emphasis added).
Furthermore, the United States Supreme Court elucidated that there is always an adequate remedy for a disqualified attorney at the end of the trial. The Supreme Court stated that "[a] disqualification order can be reviewed as effectively on appeal of a final judgment as an interlocutory appeal." Id. at 438. The fact that a reviewing court would have dealt with disqualification differently is irrelevant. The United States Supreme Court further opined that:
Particularly where the grounds for disqualification are troubling... "it would seem to us to be a disservice to the Court, to litigants in general and to the idea of speedy justice if we were to succumb to enticing suggestions to abandon the deeply-held distaste for piecemeal litigation in every instance of temptation. Moreover, to find appealability in those close cases where the merits of the dispute may attract the deep interest of the court would lead, eventually, to a lack of principled adjudication or perhaps the ultimate devitalization of the finality rule as enacted by Congress."
Id. at 440 (quoting Bachowski v. Usery, 545 F.2d 363, 373-374 (3d Cir. 1976)).
Rohn's disqualification falls pointedly within the strictures of Roller. The trial court's May 11, 2007 decision, which denied Rohn's motion seeking an interlocutory appeal, utilized the pronouncements and wisdom of the United States Supreme Court that counsel disqualification orders are not sufficiently separable from cases' merits to warrant interlocutory appeals. (Order of Super. Ct., May 11, 2007.) The trial court also discussed that appellate review of the merits of an attorney's disqualification would be available after the trial. (Id.) Ultimately, the trial court considered Petitioners' arguments and rejected them, specifically citing its consideration of Petitioners' motion, and not federal law, as its basis for denial. (Id.) Petitioners simply disagree with the trial court's basis for its May 11, 2007 decision. Their disagreement, however, should be pursued after final judgment, because we cannot resolve the disagreement before judgment without intruding into the merits of the dispute.
In Cunningham v. Hamilton County, Ohio, 527 U.S. 198, 119 S. Ct. 1915, 144 L. Ed. 2d 184 (1999), the United States Supreme Court considered the appealability of an order imposing sanctions. The trial court disqualified counsel from the case, and also ordered her to pay reasonable fees for her discovery abuses. Id. at 201. The court of appeals dismissed the appeal for lack of jurisdiction, and the Supreme Court affirmed. Id. at 203. The Supreme Court emphasized that a sanction order is inextricably intertwined with the merits of the case. Id. at 205. The Supreme Court surmised that because a lawyer's ethical obligation lies with the client, a case should never depend on a particular lawyer's participation. Id. at 206.
Similarly, in Comuso v. Nat'l R.R. Passenger Corp., 267 F.3d 331 (3d Cir. 2001), the court dismissed an appeal and a petition for a writ of mandamus filed by a disqualified counsel, complaining about a trial court's sanctions order. Citing Richardson-Merrell and Cunninghan, the court concluded that the sanctions order was not sufficiently separate from the underlying merits of the case. Id. at 339. The court opined that denying interlocutory jurisdiction did not prevent appellate jurisdiction on the merits of the case, that counsel's inability to participate in the case did not make the sanctions order a final order, and that counsel may monitor the litigation to appeal after a final judgment has been issued. Id. Accordingly, Petitioners have an adequate remedy. Moreover, mandamus "will not be used as a substitute for the regular appeals process." Cheney, 542 U.S. at 380. Therefore, Petitioners have failed to fulfill the first requirement for a writ of mandamus.
2. Petitioners Lack a Clear and Indisputable Right to Relief
Petitioners assert that the Superior Court should not have relied upon Richardson-Merrell in denying their request for a certification order because it is federal law. They argue that the trial court should have applied local law. Specifically, Petitioners importune this Court to issue a writ of mandamus, because the Superior Court failed to apply "the Virgin Islands statute governing Appeals by Permission, and instead denied the request for certification on the basis of a [United States] Supreme Court decision . ." The record before us does not support Petitioners' central claim that the Superior Court's decision not recommending an interlocutory appeal to this Court was based on a federal law. Moreover, Petitioners' assertion contradicts their claim of a clear and indisputable right to relief. The Superior Court reasoned, quoting the United States Supreme Court, that this type of interlocutory appeal is not sufficiently separable from the case's merits and that an appeal after its final judgment is effective to review errors by the trial court. (Order of Super. Ct., May 11, 2007.) According to the Superior Court, its conclusion was based on the premises contained in Petitioners' motion.
It is necessary to posit the Superior Court's order in its context in order to determine whether federal law was the basis of the trial court's refusal to issue a statement for interlocutory appeal. Petitioner's motion seeking the Superior Court's requisite opinion for an interlocutory appeal cited to Virgin Islands Supreme Court Rule 6 and section 33(c) of title 4 of the Virgin Islands Code. However, under the "discussion" section of Petitioner's motion to certify the trial court's February 2, 2007 order for interlocutory appeal, Petitioners presented and addressed three issues all of which involved the merits of Rohn's disqualification. The Superior Court considered the arguments contained in Petitioners' motion and rejected them on the basis of being "advised of the premises therein" and not on the basis of federal law.
Generally, Petitioners are correct in their argument that the Superior Court should rely on local law in ruling on a motion such as theirs. See Waialua Agric. Co. v. Christian, 305 U.S. 91, 109, 59 S. Ct. 21, 83 L. Ed. 60 (1938) ("territorial courts should declare the law of the territories with the least possible interference . Unless there is clear departure from ordinary principles, the preference of a federal court as to the correct rules of general or local law should not be imposed upon [the territory]."). However, because section 33(c), title 4 of and Virgin Islands Code and Rule 6 of the Virgin Islands Supreme Court Rules allow interlocutory civil appeals in conformity with the trial court's issuance of an opinion and order, both of which are absent in this case, Petitioners' contention of a right to an interlocutory appeal under local law is unavailing.
Importantly, for the following reasons, Petitioners have failed to demonstrate a clear and indisputable right to relief. Section 33(c), title 4 of the Virgin Islands Code provides that:
Whenever the Superior Court judge, in making a civil action or order not otherwise appealable under this section, is of the opinion that the order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of litigation, the judge shall so state in the order. The Supreme Court of the Virgin Islands may thereupon, in its discretion, permit an appeal to be taken from the order, if application is made to it within ten days after the entry of the order; except that application for an appeal hereunder may not stay proceedings, in the Superior Court unless the Superior Court judge or the Supreme Court or a justice thereof orders a stay of the proceedings.
Id. (emphasis added).
Based upon the explicit language of section 33, Virgin Islands law consigns to the opinion of the trial judge the matter of whether an order involves a controlling question of law and warrants an immediate appeal to this Court. Id. Section 33 is identical to a parallel federal statute, title 28, section 1292(b) of the United States Code. Additionally, statutes with similar language and purpose are construed alike. Northcross v. Bd. of Ed. of Memphis City Sch., 412 U.S. 427, 428, 93 S. Ct. 2201, 37 L. Ed. 2d 48 (1973) ("similarity of language . is, of course, a strong indication that the two statutes should be interpreted pari passu."); Cherokee Nation of Ok. v. Leavitt, 543 U.S. 631, 644, 125 S. Ct. 1172, 161 L. Ed. 2d 66 (2005) ("it is important to provide a uniform interpretation of similar language."). Both federal and territorial statutes assign consideration of civil interlocutory appeals to the discretion or opinion of the trial judge. Consequently, we reject Petitioners' claim that the trial judge is foreclosed from considering as persuasive authority federal law on a subject which is identical to local law on the same subject. Therefore, we conclude that Petitioners' contentions in support of a writ of mandamus are meritless.
In specifically addressing section 33, we are mindful that this section grants full authority to the trial judge to issue an opinion when the judge "is of the opinion that the order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of litigation." Importantly, without the trial judge's favorable opinion and discretion, a civil interlocutory appeal cannot ensue. See Commonwealth Ins. Co. v. Underwriters, Inc., 846 F.2d 196, 199 (3d Cir. 1988) ("[a]bsent a certification order by the district court, we do not have authority to hear a question pursuant to § 1292(b)"). No litigant has a right to be heard on whether the trial court should enter an order for interlocutory appeal, because such an appeal is dependent on the trial judge's opinion. 4 Y.I.C. § 33(c). Even if the trial court enters an order allowing an interlocutory appeal, this Court still has the discretion on whether to allow the appeal. Therefore, affording a litigant a civil interlocutory appeal is never automatic, because there is no unqualified right to such an appeal.
Petitioners argue that the Superior Court overlooked Rule 6(a) of the Rules of the Virgin Islands Supreme Court titled "Appeals by Permission." Rule 6(a), which is closely related to title 4, section 33(c), states:
An appeal from an order in a civil action, under 4 V.I.C. Section 33 (c), containing the statement by a Superior Court judge that such order involves a controlling question of law about which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation; may be sought by filing a petition for permission to appeal with the Clerk of the Court of the Supreme Court within ten days after the entry of such order in the Superior Court with proof of service on all other parties to the action in the lower court. An order as defined in this paragraph may be amended at any time to include the prescribed statement, and permission to appeal may be sought within ten days after entry of the order as amended.
Petitioners' reliance on this rule is misplaced. Rule 6(a) by its terms applies to Rule 33(c) orders, "containing the statement by a Superior Court Judge." More succinctly, there first must exist an order pursuant to title 4, section 33 of the Virgin Islands Code, before Rule 6 of the Virgin Islands Supreme Court Rules can apply. In this case, the Superior Court declined to enter an order for an interlocutory appeal. Specifically, the Superior Court never entered an order with an appropriate statement in compliance with Section 33(c), which is a prerequisite for Rule 6(a) to apply. Hence, Petitioners' claim that "the provisions of our local law, Supreme Court Rule 6 and 4 V.I.C. § 33(c), are met in this case to warrant certification," is simply erroneous.
Federal and Virgin Islands interlocutory appeals statutes are similar. The objective of both statutes is the speedy resolution of disputes, which is inconsistent with the piecemeal litigation inherent in interlocutory appeals. See Kerr, 426 U.S. at 403 ("[m]ore importantly, particularly in an era of excessively crowded lower court dockets, it is in the interest of the fair and prompt administration of justice to discourage piecemeal litigation."). Both statutes also seek to prevent a "disservice to the Court, to litigants in general and to the idea of speedy justice . and the ultimate devitalization of the finality rule...." Koller, 472 U.S. at 441 (quoting Bachowski v. Usery, 545 F.2d 363, 373-374 (3d. Cir. 1976)).
"Where a matter is committed to discretion, it cannot be said that a litigant's right to a particular result is 'clear and indisputable.'" Will, 437 U.S. at 666 (plurality opinion); Allied Chemical Corp., 449 U.S. at 36. "We are convinced," wrote the United States Supreme Court in Will, that a trial court's exercise of its discretion "ought not to be overridden by a writ of mandamus." 437 U.S. at 666. We agree. Under our statutes and rules, the issuance of an order for interlocutory appeal is within the opinion of the trial court. Because Petitioners have failed to establish that they enjoy any clear and indisputable right or entitlement to a writ of mandamus to compel the issuance of an order allowing an interlocutory appeal, their petition must be denied.
3. A Writ of Mandamus is Inappropriate in this Case
Before we exercise our discretion on whether to issue a writ of mandamus, Petitioners must demonstrate that a writ of mandamus is appropriate. Cheney, 542 U.S. at 381. Importantly, even if Petitioners had satisfied the other requirements for a writ of mandamus, we would nevertheless have to consider the third condition of whether the grant of a writ is appropriate, considering the factual circumstances of this case. Kerr, 426 U.S. at 403 ("it is important to remember that issuance of the writ is in large part a matter of discretion with the court to which the petition is addressed").
Petitioners have failed to demonstrate that a writ of mandamus is appropriate in this case for the following reasons. First, Petitioners do have an adequate means of relief, because they can appeal the trial court's ruling at the end of the case. Second, whether to enter an order to allow an interlocutory appeal is consigned to the trial court's opinion; therefore, Petitioners have no clear and indisputable right to an interlocutory appeal when the appeal is dependent on the trial judge's opinion. Indeed, there is no inkling in this case that the trial judge is of the opinion that this appeal involves a controlling question of law.
Moreover, we are mindful that a writ of mandamus may issue only in extraordinary circumstances where there is abuse of discretion amounting to the usurpation of judicial power. See Mallard v. U.S. Dist. Court, 490 U.S. 296, 309, 109 S. Ct. 1814, 104 L. Ed. 2d 318 (1989). This appeal has nothing to do with the usurpation of power; it simply involves a matter of the trial court's opinion as codified in local law. Based upon the record before us, which is limited, we cannot conclude that in the exercise of its discretion the trial court usurped its power in declining to issue an order recommending an interlocutory appeal to us. Therefore, in this case, a writ of mandamus is not appropriate.
III. The Court Will Not Reach the Merits of the Trial Court's Order
The other issue presented by Petitioner is whether the trial court erred in finding that Rohn violated Rule 4.2. Essentially, Petitioners invite us to review the merits of the trial court's order. We decline. Consideration of an attorney sanction order invariably entails appellate review on the merits of the case. See, e.g., Comuso, 267 F.3d at 339 ("[a]ny consideration of the sanctions imposed against [counsel] would necessitate consideration of the merits of the litigation.").
Title 4, section 33(a) of the Virgin Islands Code provides that "[ajppealable judgments and orders to the Supreme Court shall be available only upon the entry of final judgment in the Superior Court from which appeal or application for review is taken." This rale, often called the final order rale, is similar to its federal counterpart, title 28, section 1291, of the United States Code. There are, of course, exceptions to the final order rule. The exception applicable to the instant case requires a judge's order promoting a civil interlocutory appeal pursuant to title 4, section 33(c) of the Virgin Islands Code. However, the petition before us is unaccompanied by the appropriate trial judge's order and, therefore, fails to satisfy this exception to the final order rule.
Significantly, because there is no certification, or its functional equivalent, and no opinion from the Superior Court authorizing an interlocutory appeal for our review, we are without jurisdiction to entertain the petition to review the trial court's sanction order. See Will, 389 U.S. at 96 ("[a]ll our jurisprudence is strongly colored by the notion that appellate review should be postponed, except in certain narrowly defined circumstances, until after final judgment has been rendered by the trial court."). Nevertheless, relying on a case from another jurisdiction, Petitioners invite us to review the trial court's reading of Model Rule of Professional Conduct 4.2. We decline, because it will require us to intrude into the merits of the case.
IV. CONCLUSION
Petitioners do not meet the standards of the issuance of a writ of mandamus. First, Petitioners have an adequate means of relief, which is an appeal at the end of the case. Second, the issuance of certification orders for interlocutory appeals is thoroughly consigned to the opinion of the trial court. No opinion or order has been issued by the trial judge, concerning an interlocutory appeal. Consequently, Petitioners cannot have a "clear and indisputable right" to a writ of mandamus. Third, mandamus is unavailing to compel issuance of an order that is statutorily dependent on the trial judge's opinion; therefore, a writ of mandamus is not appropriate under the circumstances of this case.
Petitioners' petition for a writ of mandamus will be DENIED.
Rule 4.2(a) of the American Bar Association's Model Rules of Professional Conduct provides:
Rule 4.2. Communication With Persons Represented By Counsel
(a) General Rule. In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer. Notwithstanding the foregoing, an attorney may, without such prior consent, communicate with another's client if authorized to do so by any law, rule, or court order, in which event the communication shall be strictly restricted to that allowed by the law, rule or court order, or as authorized by paragraphs (b), (c), (d), or (e) of this Rule.
The rules apply in the Virgin Islands pursuant to Rule 203(a) of the Virgin Islands Supreme Court Rules.
SUPER. Ct. R. 303(a) ("The Superior Court, in furtherance of its inherent powers and responsibility to supervise the conduct of all attorneys who are admitted to practice before it, hereby adopts the ABA's Rules of Professional Conduct and Rule of Disciplinary Enforcement, superseding all of its other rules pertaining to disciplinary enforcement heretofore promulgated."). This rule is now VISCR 203(a).
There is no February 2, 2007 order of the trial court in this record. Notwithstanding repeated mention of the trial court's "February 2, 2007 order," including, for example, in Petitioners' motion titled "Motion to Certify this Court's February 2,2007 Order for Interlocutory Appeal," the trial court's January 31,2007 order disqualifying Rohn was attested by the Chief Deputy Clerk on February 1, 2007.
The "Issues Presented" section of the petition states:
A. Whether the Superior Court committed manifest error when it denied Petitioner's request for Certification of its Order for appeal on the basis of federal law, and failed to consider and apply local law governing this issue, where all requirements of the local law were met?
B. Whether Model Rules of Professional Conduct 4.2, which expressly provides that a lawyer may communicate with a constitutent "where there is consent to the communication from the lawyer representing the constituent" was violated when Attorney Rohn communicated with a former employee of Defendant after receiving permission to do so from the former employee's counsel, communicated with the former employee? Petitioners contend that the lower court failed to follow the express mandate of Rule 4.2, which provides that Counsel's action in this matter was otherwise authorized by law when it disqualified counsel in this matter. Thus, as a matter of law, counsel is entitled to an Order from this Court mandating the lower court to follow the express requirement of Rule 4.2 and vacate its Order disqualifying counsel in this matter.
V.I. Code Ann. tit 4, § 32(b) provides:
The Supreme Court shall have all inherent powers, including the power to issue all writs necessary to the complete exercise of its duties and jurisdiction under the laws of the Virgin Islands. The Supreme Court's authority also includes jurisdiction of original
proceedings for mandamus, prohibition, injunction, and similar remedies to protect its appellate jurisdiction.
The trial court's May 11, 2007 order states:
This matter is before the Court sua sponte. On March 1,2007, Plaintiff submitted a[] Motion to Certify This Court's February 2,2007 Order for Interlocutory Appeal, which contained a 26 page legal brief. Pursuant to Local Rule 7.1(e), briefs shall not exceed twenty (20) pages without leave of Court. The Court struck the Motion and returned it to Plaintiff. Plaintiff then filed the exact same motion verbatim using a different font and smaller point to make it comply with the twenty (20) page maximum. Nevertheless, the Court will render a ruling in this matter.
"[Ojrders disqualifying counsel in civil cases . are not sufficiently separable from the merits to qualify for interlocutory appeal." Richardson-Merrell, Inc. v. Kollar, 472 U.S. 424, 440, 105 S. Ct. 2757, 86 L. Ed. 2d 340 (1985). The U.S. Supreme Court further held that a "disqualification order can be reviewed as effectively on appeal of a final judgment as on an interlocutory appeal." Id. at 438, 105 S. Ct. 2757. Having been advised of the premises therein, it is hereby
ORDERED that Plaintiff's Motion to Certify this Court's February 2, 2007 Order for Interlocutory Appeal is DENIED, it is further
ORDERED that Plaintiff has Thirty (30) day [s] from this Order to obtain new counsel. IT IS SO ORDERED this 11th day of May, 2007.
We thoroughly applied mandamus standards to the trial court's order denying Petitioners' motion for an interlocutory appeal. We are perplexed that, without citing any basis, and without regard to Rule 13 of the Virgin Islands Supreme Court Rules, which Rule does not confine our mandamus review to any single order of the Superior Court in a mandamus petition, the Concurring Opinion finds that "the majority opinion incorrectly applies the mandamus requirements to the trial court's disqualification order when the analysis should instead be focused on the court's order denying interlocutory certification." (Concurring Op. at 1.) Also, the facts and procedural history appearing in this opinion were necessary for understanding and deciding this case.
(Pet. for writ of mandamus at 2.)
The issues presented in Appellants' motion before the trial court are titled as follows:
"I. Whether Attorney Rohn Violated Model Rule of Professional Conduct 4.2 and must be Disqualified Involves Controlling Questions of Law .
II. There Is Substantial Ground for a Difference of Opinion Regards to Rule 4.2's Application to Corporate Defendants....
III. An Interlocutory Appeal will Materially Advance the Ultimate Termination of This Litigation.
"Having been advised of the premises, it is hereby ordered that Plaintiff's Motion to Certify This Court's February 2,2007 Order for Interlocutory Appeal is DENIED...." (Order of the Super. Ct. May 11, 2001.) See Hendrix v. United States, 219 U.S. 79, 88, 31 S. Ct. 193, 195, 55 L.Ed. 102 (1911) (overruled on other grounds by Funk v. United States, 290 U.S. 371, 387, 54 S. Ct. 212, 78 L. Ed. 369 (1933) ("the order recites that the court granted the motion, 'being well advised in the premises.' This means advised . in the way provided by the statute.")); See Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 183, 41 V.I. 502 (3d Cir. 1999) ("award is based on the 'premises considered and....'") (quoting trial court's order, emphasis supplied). See also, In re Rubenstein's Estate, 46 Ohio Law Abs. 91, 68 N.E.2d 668, 670 (1943) ("Probate Court does state that 'the court being fully advised in the premises'. This connotes that the Probate Court had presented to him such essential facts as were necessary to establish the application."). In re Bort's Estate, 75 Ill. App. 2d 322, 221 N.E.2d 24, 26 (1966) ("if the court signs an order which includes the words 'the court was fully advised in the premises' it must mean, in the absence of any contrary indication in the order or in the record, that 'the court heard adequate evidence, received enough information or listened to sufficient law and argument, as the necessity of the particular case required, to enable the court to reach what it believed to be the right decision on the issue presented.'") (quoting Smith v. Smith, 36 Ill. App. 2d 55, 183 N.E.2d 559, 561 (1962)); see, e.g., Kerndt v. Ronan, 236 Neb. 26, 458 N.W.2d 466, 470 (1990) ("the phrase 'fully advised in the premises'... means 'in consideration of the evidence adduced at trial. '"). A "premise" is "a previous statement or contention from which a conclusion is deduced." Black's Law Dictionary 1219 (2004). Clearly, the trial court deduced its conclusion to deny Petitioners' motion upon the court's consideration of the premises contained in Petitioner's motion which includes its arguments regarding our local statutes and court rules.
28 U.S.C. § 1292 states:
(b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, [t]hat application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.
(Pet. at 10.)
The Virgin Islands interlocutory appeal statute and court rules do not use the term "certification" or "certify" in their text. Federal statutory provisions and court rules do. However, the terms are implicit from the language and objective of the local statute and court rules. This seeming interchangeability is illustrated, for example, by Petitioners' repeated call for the trial court to "certify" or for "certification" by the trial court. {See, e.g., Pet. at 2-3 & Pet. at 15 "Motions to certify interlocutory orders for appeal are governed by Supreme Court Rule 6 and 44 V.I.C. § 33 (c).").
28 U.S.C. § 1291 provides that:
The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court. The jurisdiction of the United States Court of Appeals for the Federal Circuit shall be limited to the jurisdiction described in sections 1292(c) and (d) and 1295 of this title.
Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard College, 436 Mass. 347, 764 N.E.2d 825 (2002).