[N THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN ************
CARIBBEAN OFF THE GRID ) CASE NO ST 2020 CV 00179 PLAZA LLC, ) ) ACTION FOR PIERCING THE CORPORATE ) VElL TORTIOUS INTERFERENCE WITH Plaintiff, ) EXISTING CONTRACTUAL RELATIONS ) TORTIOUS INTERFERENCE WITH ) CONTRACTUAL RELATIONS TORTIOUS vs ) INTERFERENCE WITH BUSINESS RELATIONS ) DECLARATORY RELIEF CONVERSION ) DISTRAINT TROVER CIVIL CONSPIRACY HOOMAN PEDRAM, individually, and ) VIOLATION OF FRAUDULENT TRANSFERS JOHN LINK, individually, ) ACT ) Defendants ) JURY TRIAL DEMANDED
Cite as 2021 VI Super 33U
MEMORANDUM OPINION & ORDER Pending before the Court are l Defendants’ Motion to Disqualify which was filed on June 29, 2020
2 Defendants Amended Motion to Disqualify which was filed on July 2, 2020,
3 Plaintiff‘s Response to Pedram and Link 5 Amended Motion to Disqualify, which was filed on July 6 2020 and
4 Defendants Reply in Support of Their Amended Motion to Disqualify, which was filed on July 24 2020
I INTRODUCTION 1|l This case involves a dispute between a landlord, Caribbean Off the Grid Plaza, LLC, ( COTG’ ) and its tenant, Hoolink, LLC, a limited liability company, formed by Hooman Pedram and John Link ' Defendants Amended Motion to Disqualify argues that Attorney Michael L Sheesley ( ‘Sheesley ) should be disqualified from representing COTG for the following reasons (1) “Pedram discussed issues essential to all counts in the Complaint with Attorney Sheesley, and (2) Attorney Sheesley is a necessary witness in this action 2 In opposition, Sheesley argues that
' Plaintiff’s First Amended Complaint1| 13 2 Defendants Motion to Disqualify at 2 Caribbean Offthe Gm! Plaza LLC v Pedram er a! 2021 VI Super 33U ST 2020 CV 00179 Memorandum Opinion & Order Page 2 of 14
“the alleged conduct does not warrant disqualification, the Defendants lack standing to disqualify, [and that he is] not a necessary witness As explained below, the Court determines that (l) Defendants do not lack standing to move to disqualify Sheesley (2) Sheesley s conduct and communications to Pedram did not violate the Model Rules of Professional Conduct and (3) Sheesley 5 potential due] role as counsel and a witness in this case does not disqualify him to represent COTG
[I FACTUAL AND PROCEDURAL BACKGROUND
112 In 2017, Hooman Pedram and John Link formed a limited liability company known as Hoolink LLC 3 113 In December 2017 Hoolink, as a Tenant, entered into a Commercial Lease, with Caribbean Off the Grid Plaza, LLC as Landlord, for the following
That portion of Parcels No 18 Remainder 19 1 & 19 2 Estate Thomas No 6H New Quarter St Thomas, VI, presently identified as Bay 106 and the back side of previously known bay 104 and 105 of the Mall Building containing approximately [+/ 6000] square feet (“Floor Area )
(hereinafter referred to as the Premises”) ‘
114 The Lease is for a term of 5 years starting December 1, 2017 5
15 Rent is due on the first of each month and in the event of non payment within 10 days of the due date a late payment service charge is due 6
116 “In December 2019, a novel (new) coronavirus known as SARS CoV 2 (“the virus”) was first detected in Wuhan, Hubei Province, People 3 Republic of China, causing outbreaks of the coronavirus disease COVID 19 that spread globally ’ The U S Secretary of Health and Human Services (HHS) declared a public health emergency on January 31, 2020 7
117 Hoolink failed to pay its rent for the month of March 2020 when due 8
3 P1 5 FirstAmend Comp! at11 13 4 Pl 3 First Amend Compl at 1111 13 22 and 27 5 P1 5 First Amend Compl at1|28 6 P1 5 First Amend Compl at1| 32 33 7 https www wh1tehouse gov presidential actions proclamation declaring national emergency concemiqgfiovel cgronavirus disease covid l9 outbreak 8 P1 3 First Amend Comp] at 1| 32 Caribbean Offrhe Gm! Plaza LLC v Pedram e! a! 2021 VI Super 33U ST 2020 CV 00179 Memorandum Opinion & Order Page 3 of 14
‘8 On March 13, 2020, the President of the United States declared the pandemic ‘of sufficient severity and magnitude to warrant an emergency declaration for all states [and] territories ”9
‘9 On March 13 2020, the Governor of the Virgin Islands declared a state of emergency requiring, Inter aha expeditious action [] necessary to protect the health, safety, and welfare of the residents of the Virgin Islands, slow the spread of the COVID l9 outbreak, reduce the number of people infected, and avoid strain on the health care system ”'0 110 On July 10 2020 COTG filed its First Amended Complaint alleging that Defendants Hooman Pedram (“Pedram”) and John Link ( Link”) tortiously interfered with existing and prospective contractual relations and engaged in a civil conspiracy, amongst other wrongdoings
'lll The First Amended Complaint alleges that on March 18 2020 Pedram told COTG that Hoolink did not have the rent money and that “[i]t doesn t matter [because] we are closing our [ ] doors tomorrow anyway ” According to COTG Pedram also communicated Hoolink’s intent to abandon the Leased Premises and continue in breach of the Lease ”" '|12 The First Amended Complaint alleges that on March 18, 2020 Mr Pedram took to Facebook to disparage the Landlord for apparently having the temerity to expect rent to be paid on time " The post on Pedram 5 Facebook account stated Jesus The EDA collecting landlord is already up my [ ] for rent I asked him what he wants for me to do the bowling alley can t have more than 50 people Rent is 8 days late ” As alleged in Defendants Amended Motion to Disqualify, Sheesley commented on Pedram’s Facebook post and “[a]fier reading the comment, Pedram deleted it and blocked Attorney Sheesley from his Facebook page Not relenting Sheesley then attempted to repost it but was unable to because he had been blocked ”'4 In response, Sheesley privately messaged Pedram on Facebook and communicated the following
Sheesley You must have accidently deleted my comment
Sheesley I imagine your rent was due on the l" and you had a 10 day grace period [t s the 18m so you are 8 days after the grace period but actually 18 days late
9 hugs www whitebouse gov presidential actions proclamation declaring national gmcrgency concerning novel gpmnavirus disease govig l9 outbreak/ '0 m www vi gov wggqntent uploads 2020 03 2020 03 23 12 54pm Order Suggl Exec Order re Restriction; to Movement Gatherings Omrations of Business Govt 39;! Schools pdf " Id at 1] 42 '2 Id at 1| 43 '3 Defs Amend Mot to Disqualify at 2 '4 Id at 3 Caribbean Oflthe Gm! Plaza LLC v Pedram e! a! 2021 VI Super 33U ST 2020 CV 00179 Memorandum Opinion & Order Page 4 of 14
Sheesley There is no actual government ban on more than 50 people in a place at one time, govt only not issuing permits In any event that only happened a few days ago Sheesley Which means you were late on your rent anyway and probably shouldn’t complain on social media about it ’ Sheesley You own multiple businesses and pieces of real property maybe just pay the rent '3‘ ‘ 13 In a second private message Sheesley said “With the social media virtue signaling I’m assuming you will be paying all your employees full salary during any business interruption ”'6 According to Defendants Amended Motion to Disqualify [blecause Pedram blocked Attorney Sheesley, he could not see Attorney Sheesley s attempt to communicate with him But, Attorney Sheesley again remained undeterred in his efforts to confront Pedram about a lease for a purported non client ' On the same day March 18 2020, Sheesley text messaged Pedram on his personal phone number a screenshot of the Facebook messages and asked King, Why you blocking me? '3 Their conversation via text message is as follows
Pedram I took the post down You are still blocked
Sheesley Ha! Quit being a puss
Sheesley Don t dish it on social media if you can’t take it
Pedram Also last night cops went to every place with more than 50 and shut them down
Sheesley Even Garth said you are thin skinned Pedram I guess I am
Sheesley Well they can t do that I ll be addressing that with them in the next couple days On ST] it was health Dept Govt has zero authority to do that at this point
Pedram Your still blocked But we can stay friends on text
Sheesley You ll get over it in less than 20 days just like the virus'9
l5 [d I6 Id ' Id '3 Id at4 [9 Id Caribbean Offthe Grid Plaza, LLC v Pedram e! a! 2021 VI Super 33U ST 2020 CV 00179 Memorandum Opinion & Order Page 5 of 14
1114 On March 19, 2020, Pedram texted Sheesley a screenshot of an email from Chris Sharpless communicated to Hooman and Link please be advised that absent receipt of those fimds due by 4PM today, we will have no choice but to proceed to enforce those pertinent terms and conditions as prescribed in our lease agreement We look forward to having this monetary default cured immediately ”20 Pedram sent another text message to Sheesley that stated Beach bar and Greengos got shutdown for having more than 50 people 10,000 fine and license taken away and they won t be able to get it back until they receive a court date I saw the ticket they were issued earlier so much for your theory 2' 1115 At issue is whether the correspondence between Sheesley and Pedram rise to a level of misconduct that should disqualify Sheesley from representing COTG in this matter
1116 According to both parties, Sheesley did not represent COTG in a legal capacity until after the course of the above mentioned communications 22 However, once retained, Sheesley “then proceeded to immediately file the instant action despite (1) his communications with Pedram; and (2) that those communications directly relate to the allegations contained in his Complaint 23 1117 At a hearing on August 4, 2020, Sheesley informed this Court that he has known Mr Pedram for almost 10 years 24 He apprised the Court that he did not know how long they have been friends on Facebook, but “the first text message that [he and] Mr Pedram ever exchanged was in 2012 ”25 Sheesley explained the extent of their relationship and communication In closing, he stated there are lots of people that I speak to on a regular basis and speaking to someone is not giving someone legal advice this is certainly not something that I want to bring before the Court but I don’t believe this is an ethical violation 7" The Defendants concluded the hearing by arguing that Attorney Sheesley has become a witness to our state of mind and that we have the right to due process, to cross examine Mr Sheesley because what he has done is created an insurmountable conflict where he 5 representing one thing on behalf of his client and he has information and conversations with our client that indicated something very different than what he is alleging ’7 1118 Significantly, the First Amended Complaint does not include the national and global events that began in February and March 2020 and continue to this date namely the COVID l9 pandemic and the executive orders and proclamations issued by the Governor of the Virgin Islands which
20 Id at 5 2: Id 2’ Id See also August 4 2020 Hearing Transcript at p 3 $16 ( March 26 " was the first contact that the plaintiff had with me, I believe The 25" or the 26''1 of March That s the first contact that I ever had with that entity Your Honor ’) 23 Defendants Amended Motion to Disqualify at 5 24August 4 2020 Hearing Transcript p 3 at 116 251d at1| 8 12 261d atp 13111122 25andp14at111|16 2 Id atp 15 at1l111017 Caribbean 017the Gm! Plaza LLC v Pedro»: er a! 2021 V1 Super 33L ST 2020 CV 00179 Memorandum Opinion & Order Page 6 of 14
eventually ordered the public and non essential workers to remain at home, closed all bars, limited restaurants to take out and eventually resulted in reducing Chicken n’ Bowling’s capacity from 1 000 to 500 and then to 10 persons from March 21 to March 25 2020
III LEGAL STANDARDS
a Standing
1119 Fenster v Dechabert (Dunson, J ) addressed standing to file a motion to disqualify legal counsel and explained that standing in the Virgin Islands ‘ is at best a non jurisdictional claims processing rule”28 that is subject to waiver should the party asserting the issue fail to raise it in a timely manner 29 Finding it sound and persuasive, this Court also adopts the following analysis determining that an attorney client relationship is not required to seek an attomey’s disqualification
There is a split of authority on whether an opposing party has standing to file a motion to disqualify counsel “The first, and more restrictive view, is that only a current or former client has standing to seek an attorney's disqualification The opposing view holds that an attorney client relationship is unnecessary” and permits courts to confer standing based on the applicable ethical rule that requires an attorney [to] come forward if he has knowledge of an actual or potential violation of a Disciplinary Rule Neither the Supreme Court of the Virgin Islands nor the Superior Court has specifically defined the parameters of standing in the context of an opposing party's motion to disqualify counsel and the Third Circuit has not definitively ruled on the issue 3° 1120 Following Fenster v Dechabert, this Court also determines that an attorney client relationship is unnecessary to permit an opposing party to file a motion to disqualify counsel, and
28 United Corp v flamed 2016 V1 303 (citing Hodge v Bluebeards Castle Inc 2015 V1 671 687 n 8) 29 Fenstel v Dechabert Super c: Civ No sx 16 CV 343 2017WL 4969896 at *5 (v1 Super Cr Sept 27 2017) (citing Benjamin v A10 Ins C0 of.” R 2012 V 1 564—65) 30 Fensterv Dechaber! Super Ct Civ No SX 16 CV 343 2017 WL 4969896 at a'5 (V1 Super Ct Sept 27 2017) (footnotes omitted) (citations omitted) (first quoting Olive v DeJongh 2012 WL 12505274 at *7 2012 V I LEXIS 71 *6 n 4 (V1 Super Ct May 14 2012) (citations omitted) then quoting Keith Swisher Article The Practice and Theory ofLawyer Disqualification 27 GEO .1 LEGAL ETHICS 71 88 n 62 (citing 25 AM J TRIAL ADVOC l7 18 21 22 (2001)) (other citations omitted) Id (collecting cases) then quoting Santander Sec LLC v Gamache 2017 WL 1208066 at *3 2017 U S Dist LEXIS 50189 at *8 9 (E D Pa Apr 3 2017) (citing Kevllk v Goldstem 724 PM 844 847 (lst Cir 1984)) (internal quotation marks omitted) then quoting Olive at *6 n 4(dec1ining to ‘extensively analyze ’ the standing issue because it was not raised by either party), and then citing Gamache 2017 WL1208066 at *3 2017U S Dist LEXIS 50189 at ‘7 8( Whether a non client may seek opposing counsel 3 disqualification is far from clear )(citing In re Corn Deriv Antitrust ng 748 F 2d 157 161 3d Cir 1984) (The Third Circuit [a]ssum[ed] without deciding that a motion to disqualify must be brought by a fomer client )(unpublished) Canbbean Offthe Grid Plaza LLC v Pedram e! a! 2021 V1 Super 33U ST 2020 CV 00179 Memorandum Opinion & Order Page 7 of 14
confers standing based on the applicable ethical rule that requires attorneys to come forward if he or she has actual or potential knowledge of an ethical breach b Disqualification of an Attorney 1121 The applicable standard for disqualification of an attorney and the Court 5 authority to do so was also addressed in Fenster v Dechabert, (Dunston .1 )
The Court is tasked with supervising the conduct of attorneys that appear before it, and has inherent power to disqualify any attorney if it finds such action is warranted ” “It is at the Court's discretion to determine whether disqualification is warranted ” ‘ The underlying principle in considering motions to disqualify counsel is safeguarding the integrity of the court proceedings and the purpose of granting such motions is to eliminate the threat that the litigation will be tainted Although “doubts are to be resolved in favor of disqualification, the party seeking disqualification must carry a heavy burden and must meet a high standard of proof before a lawyer is disqualified ” Vague and unsupported allegations are not sufficient to meet this standard Motions to disqualify are viewed with disfavor and disqualification is considered a drastic measure which courts should hesitate to impose except when absolutely necessary ”3'
1122 The resolution of a motion to disqualify counsel typically involves a two step inquiry “Once courts find or suspect a substantive violation, they then engage in a balancing test to determine whether disqualification is the appropriate remedy for the case 32 The Court in Fenster looked to the Comments accompanying the ABA 3 Model Rules of Professional Conduct for guidance’m in considering whether a substantive violation occurred “Prior to February 1, 2014, Supreme Court Rule 203 provided that the ABA's Model Rules of Professional Conduct governed the conduct of members of the Virgin Islands Bar However, effective February 1, 2014, Supreme Court Rule 211, which established the Virgin Islands Rules of Professional Conduct, governs the conduct of Virgin Islands attorneys ”34 ‘ Because the Virgin Islands rules are
3' Fensterv Dechaber! Super Ct Civ No SX 16 CV 343 2017 WL 4969896 at *2 (V1 Super Ct Sept 27 2017) (footnotes omitted) (citations omitted) (first quoting Farrell v Hess 011 V I 57 VI 50 57 2012 WL 3536799 (Super Ct 2012) (citing McKen 1e Constructionv SI CrOIx Storage Corp 961 F Supp 857 859 37 VI 105 (D VI 1997)) then quoting Id (citing ANNOT MODEL R PROF L CONDUCT Preamble and Scope Disqualification ’ annot at 9 (6th ed 2007)) (other citation omitted) then quoting Rodngue v Spaltan Concrett Prods LLC 2017 WL 1508179 at *2 2017 U S Dist LEXIS 62923 at ’5 (D VI Apr 25 2017) (quoting McKen 1e 96] F Supp at 859) (internal quotation marks omitted) then quoting Farrell 57 V I at 57 (citations omitted) then quoting Denero v Palm Hort on: Mgmt Inc 2015 WL 1004672 at *3 2015 U S Dist LEXIS 25864 *8 (D V1 Mar 4 2015) (quoting Cohen v Oasm 844 F Supp 1065 1067 (E D Pa 1994)) (internal quotation marks omitted), and then quoting Denero, at *7 8 (citing Alexander v Primenca Holdings Inc 822 F Supp 1099 1114 (D N J 1993)) (unpublished) 3 Id “ Fenster ‘6 3“ In re Nevins 2014 V1 804 n 1 (citing Promulgation Order No 2013 0001 (V 1 Dec 23 2013)) Caribbean Offthe Grid Plaza LLC v Pedro»: e! a! 2021 VI Super 33U ST 2020 CV 00179 Memorandum Opinion & Order Page 8 of 14
substantively identical to the ABA rules, previous decisions interpreting and applying the ABA rules remain equally applicable in the interpretation and application of the Virgin Islands rules ”35 ‘1] 23 “Thus, for clarity and convenience, in this opinion we will refer to the currently applicable Virgin Islands Rules of Professional Conduct as embodied in Supreme Court Rule 211 36 and the Comments accompanying the ABA’s Model Rules for interpreting and applying the standards c Lawyer as Witness
1124 Virgin Islands Rule of Professional Conduct as embodied in Supreme Court Rule 211 3 7, governs the issue of lawyer as witness
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless (I) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule211 17orRu1e211 1937
1125 In general, lawyers are prohibited from simultaneously serving as an advocate and a necessary witness, except under specific circumstances 33 The narrow exception to this rule is that “an attorney may act as an advocate at trial in which the lawyer is likely to be a necessary witness ”39 A ‘necessary witness has been defined in this jurisdiction as an individual whose possible testimony is found to be ‘relevant, material, and unobtainable elsewhere 4°
IV ANALYSIS
a Pedram and Link have Standing to Seek Disqualification of Sheesley
1|26 The Count finds that the Defendants do not lack standing to seek disqualification of Sheesley In its Response, COTG argues that the Defendants ‘ lack[s] standing to seek
’5 Matter ofMaynard 2018 VI No SCTCIV20150019 2018 WL 2938633 at *3 36 Id
37 Rules of Prof] Conduct V I R 211 Compra Model Rules of ProFl Conduct R 3 7 Lawyers as Witnesses (a) a lawyer shall not act as advocate at trial in which the lawyer is likely to be a necessary witness unless (I ) the testimony relates to an uncontested issue (2) the testimony relates to the nature and value of legal services rendered in the case or (3) disqualification of the lawyer would work substantial hardship on the client ‘ '3 Model Rules of Prof' 1 Conduct R 3 7 Comment 3 ” Daily News Pub! Co v 29th Legislature ofthe Virgin Islands 2012 V I 145 *' Thomas v Kragel 2018 V I Super (Citing People ofthe V I v Caesar 2016 V 1 Super Ct (quoting Dally News Pub! Co 2012 V I Super 145)) Caribbean Offthe Gm! Plaza LLC v Pedram et al 2021 VI Super 33U ST 2020 CV 00179 Memorandum Opinion & Order Page 9 of 14
disqualification of opposing counsel because they have not and cannot show an ethical breach that so infects the litigation as to impact Pedram and Link 3 interest in a just and lawful detemiination of their claims ’4' COTG further argues that Defendants have not demonstrated how Attorney Sheesley 8 Facebook friendship, nor his pre representation communication with Pedram impacts their interest in a just and lawfiil determination of the parties’ claims 42 However, the Court finds that it is in the best interest of a fair administration of justice to address Pedram and Link’s Amended Motion Attorneys are required to come forward if he or she has actual or potential knowledge of an ethical breach “3
1127 The Defendants do not have to prove that an ethical breach has in fact occurred, but rather that the potential knowledge of an ethical breach could impact a determination of the pending action Because Pedram and Link argue that Sheesley has engaged in “professional misconduct that is prejudicial to the administration ofjustice” by filing a Complaint that contains information of prior communications between Pedram and Sheesley, the Court finds sufficient authority to review Defendants’ Amended Motion to Disqualify
b The Court will Not Disqualify Sheesley as Counsel for COTG
1128 Based upon the applicable Professional Rules of Conduct the Court finds that Sheesley s conduct is neither prejudicial to the administration of justice nor does the possibility of his dual role as counsel and a witness disqualify him from representing COTG The Court finds that a substantive violation has not occurred in this case and, therefore, it need not engage in the second step, balancing test inquiry as set forth in Fenster
i Sheesley’s Conduct Did Not Violate the Model Rules of Professional Conduct
1129 Under the Virgin Island Rules of Professional Conduct, ‘it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration ofjustice ”44 The Court is expected to disqualify licensed attorneys from representation if the conduct results in a violation In this case, the Defendants claim that Sheesley s conduct is prejudicial to the administration of justice for the following three reasons “Attorney Sheesley communicated with Pedram about contested issues in this case [warrant disqualification], that Attorney Sheesley advised Pedram to pay rent on behalf of LLC from his person funds; [and that he] advised Pedram to stop posting about Landlord on social media ‘5 Hoolink filrther argues that Attorney Sheesley 3 direct exchange with Pedram about that Facebook post immediately after it was posted is unquestionably related to [allegations in the Complaint] ’ and is, therefore, “extremely prejudicial ”"6
4' Plaintiff‘s Response to Pedram and Link 8 Amended Motion to Disqualify at 5 6 " Id at6 ‘3 Santander Sec LLC v Gamache 2017 WL 1208066 at *3 (E D Pa 2017) (citing Kevllk v Goldslem 724 F 2d 844 847(lstCir 1984) 4“ VI R 211 8 4 Misconduct ‘5 Defendants Amended Motion to Disqualify at 9 “’6 1d at 7 Caribbean Offthe Grid Plaza, LLC v Pedram e! a! 2021 VI Super 33U ST 2020 cv 00179 Memorandum Opinion & Order Page 10 of 14
1130 Historically, courts in the Virgin Islands have considered conduct prejudicial to the administration of justice as being in contempt of court, violating local statutes, delaying the progress of court proceedings, and among others falsely representing information to a tribunal 4 Governing misconduct, ABA Model Rule 8 4, Comment 2 explains “Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category 43 “The underlying principle in considering motions to disqualify counsel is safeguarding the integrity of the court proceedings and the purpose of granting such motions is to eliminate the threat that the litigation will be tainted 49 While they may have been unsolicited and unwise, the Court finds that Sheesley s communications to Pedram do not threaten the integrity of these proceedings, taint the substance of litigation, or rise to the level of conduct that is considered a serious interference with the administration ofjustice
1131 The Court is not persuaded by the Defendants’ argument that Sheesley 5 comments should be construed as legal counsel or advice to Pedram The conversations at issue occurred before an attorney client relationship was established between COTG and Sheesley; both parties concede that Sheesley did not represent COTG when the messages were exchanged between Pedram and Sheesley Furthermore, Pedram and Sheesley had previously communicated with one another regarding less formal matters At a status hearing on August 4, 2020, Sheesley informed the Court, “I ve known Mr Pedram for almost 10 years I don’t know how long we’ve been Facebook friends, but I went back and reviewed the text messages history between myself and Mr Pedram And the first text message that Mr Pedram and I ever exchanged was in 2012 when Mr Pedram was inquiring about taking a fireann class ”50 Over the course of several years, Pedram and Sheesley occasionally communicated with one another on various subjects Given the parties’ prior relationship, the text message exchanges and Facebook connection between Pedram and Sheesley, the Court finds that Sheesley s conduct does not warrant disqualification
1132 Although some allegations in the First Amended Complaint include content related to Pedram’s Facebook post, the Court does not find this sufficient reason to disqualify Sheesley for
‘7 See In re Suspension of Williams 2013 V1 S Ct Civ No 2013 0054 slip op at 1 2 (unpublished) (granting petition for discipline by consent and imposing suspension when respondent admitted to “maintaining a [*641] private immigration practice while employed as an Assistant Attorney General ) See e g State ex rel Oklahoma Bar Ass’n v Burns 2006 OK 75 145 P 3d 1088 1093 (2006) (holding attorney 3 violation of statute prohibiting drunk driving constitutes conduct prejudicial to the administration ofJustice) In re Suspension of Joseph, 2012 VI 503 (concluding that Attorney Joseph violated Model Rule 8 4 based on its finding that the Riveras visited Attorney Joseph 5 office on many occasions, seeking to see Attorney Joseph and to learn about the status of their civil case,’ but “were told on each occasion that the case was progressing in court See e g, In re Disbarmem of Taylor, 2014 V I 379 (establishing that Taylor falsely represented to the immigration tribunal that he did not know Saramah‘s whereabouts despite Saramah having told Taylor that he had moved to Jerusalem) “Model Rules of Pro“ Conduct R 8 4 Comment 2 ‘9 McKen.Ie Cons! v St Croix Storage Corp 37 VI 105 108 961 F Supp 857 859 (D V1 Apr 23 1997) (citing United States Football League v NOIIOI‘IGI Football League 605 F Supp 1448 1464 (S D N Y 1985)) 50August 4 2020 Hearing Transcript p 3 at111| 5 12 Caribbean Offthe Gm! Plaza LLC v Pedram er al 2021 VI Super 33U ST 2020 CV 00179 Memorandum Opinion & Order Page II of 14
being extremely prejudicial 5' The First Amended Complaint includes a screenshot of Pedram’s Facebook post to evidence COTG s argument in support of breach of contract It also includes information well beyond the scope of text messages and private Facebook messages exchanged The Court agrees with COTG’s claim that Pedram posted publicly to his friends and followers on Facebook [ ], which invites comment from any of Pedrarn s thousands of friends 52
Each Facebook user has a "profile," typically containing an identifying photograph and information about the user’s academic and professional background Users often include more personal information, such as their relationship status, hometown, interests (favorite books, movies, leisure pursuits, etc ), and contact information A Facebook profile also includes a "wall," on which users can post publicly visible comments to each other, and a page for photographs to be uploaded and viewed Private correspondence, called "messages" may also be exchanged between users One user can ask another to be his "friend;" depending upon each user's privacy settings, a friendship will enable the two users to see the entirety of one another's profiles 53
1133 Given the public nature of Pedram’s initial post on his Facebook wall and that Sheesley and Pedram were already Facebook friends at the time of the post the Count finds that Sheesley did not violate an ethical rule of misconduct when he commented and privately messaged Pedram about his post, or when he referenced the content of the post in the First Amended Complaint
ii Sheesley’s dual role as counsel and a witness does not disqualify him to represent COTG
1134 Virgin Islands Rules of Professional Conduct, as embodied in Supreme Court Rule 21 l 3 7, require disqualification of an attorney when it is likely that the lawyer will be a necessary witness 5" To be considered a necessary witness, the lawyer's likely testimony must be relevant, material and unobtainable elsewhere 55 If it is likely that the testimony can be obtained through other means, then the attorney is not a necessary witness 56 Further, if the testimony of the lawyer as a necessary witness relates to an uncontested issue, he or she may simultaneously act as an advocate 57
5 ' Defendants Amended Motion to Disqualify at 7 52 Pl 5 Resp to Pedrarn and Link s Amended Mot to Disqualify at 2 53 Securities Practice and Electronic Technology § 5 ll 54 v1 R 211 3 7 55 See Grammar v Melmk 2008 D V I LEXIS 58854 *1‘ See also Annot Model R Prot‘l Conduct Subsection (a) lawyer may not act as an advocate at trial if likely to be deemed necessary witness )(Quotmg Brown v Dame], 180 F R D 298 (D S C 1998)) 56 Id 5 v1 R 2113 7(a)(l) Caribbean Offline Gm! Plaza LLC v Pedram e! a! 2021 VI Super 33U ST 2020 CV 00179 Memorandum Opinion & Order Page 12 of [4
1l35 ABA Model Rule 3 7, Comment 2 explains, The opposing party has proper objection where the combination of roles may prejudice that party's rights in the litigation ”58 Comment 4 of Model Rule 3 7 urges the Court to perform a balancing test of several factors when deciding a motion to disqualify In this jurisdiction, courts review the interests of the client, of the tribunal and opposing party 59 The Court will consider whether the tribunal is likely to be misled or the opposing party is likely to suffer prejudice against ‘ the effects of disqualification on the client 60
Whether the tribunal is likely to be misled or the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the lawyer's testimony, and the probability that the lawyer's testimony will conflict with that of other witnesses Even if there is risk of such prejudice, in determining whether the lawyer should be disqualified, due regard must be given to the effect of disqualification on the lawyer's client 6'
1136 Additionally, “in determining if it is permissible to act as an advocate in a trial which the lawyer will be a necessary witness, the lawyer must also consider that the dual role may give rise to a conflict of interest 6" Comment 6 of ABA Model Rule 3 7 explains that determining whether or not such a conflict exists is primarily the responsibility of the lawyer involved 63
1137 Here, the Defendants argue that [b]ecause Attorney Sheesley’s communications with Pedram directly contradict the entire basis for [the] Landlord s Complaint, he is an essential witness who must be disqualified 6“ Specifically, the Defendants claim that Landlord’s entire theory of liability on all counts is centered upon an alleged conspiracy between the Members to ‘engage in subterfuge to breach the lease and steal the LLC’s property 65 Hoolink flirther maintains that Sheesley should be disqualified because his possible testimony would relate to a contested issue, claiming that the parties dispute whether (1) Members engaged in a conspiracy to violate the lease, (2) Members shared legitimate concerns related to COVID 19, which affected their business, (3) Members disparaged the Landlord; and (4) Pedram should have paid the rent from his personal funds 66
1|38 In sum, the Court finds that although the Sheesley 5 text messages and Facebook posts may be relevant, the Defendants did not sufficiently demonstrate that the testimony is material or unobtainable elsewhere Further, the Court is not persuaded by the Defendants argument that
53 Model Rules of Prof’l Conduct R 3 7 Comment 2 59 Daily New Publ’g Co Virgin Islands Daily News J Lowe Davis v 29’" Legislature 0fthe Virgin Islands, 59 V I 138 145 (Super Ct 2012) (intemalcitations omitted) 60 Model R Prof lConduct R 3 7 Comment4 6' Model R Prof lConduct R 3 7 Comment 2(a)(3) 62 Id at 7 Comment 6 63 Id 64 Defs Amended Mot to Disqualify at 7 65 ,d 66 Defs Reply in Support of their Amended Mot to Disqualify at 3 Caribbean Offthe Gm! Plaza LLC v Pedram er al 2021 VI Super 33U ST 2020 CV 00179 Memorandum Opinion & Order Page 13 of 14
Sheesley s possible testimony does not relate to an uncontested issue The Court is not likely to be misled by Sheesley 8 possible testimony related to the Facebook post comments, and text message correspondences given the nature of this case Finally considering the interests of the tribunal and parties, the Court finds that disqualifying Sheesley would adversely impact the administration of fair and equitable justice
‘I39 The Court agrees with Plaintiff‘s argument that Sheesley 3 words could be admitted (if admissible) without him testifying because Pedram could introduce and authenticate the communications himself6 Because his possible testimony is obtainable elsewhere the Court declines to disqualify Sheesley from representing COTG on the basis of being a necessary witness
140 Even if Sheesley were a necessary witness in this case, the subject matters of the messages are not materially contested Thus, the Court does not have a sufficient basis to disqualify Sheesley as counsel The parties are not contesting whether Pedram posted on Facebook on March 18, 2020, nor that Attorney Sheesley responded accordingly
‘41 The Court must also consider various issues that might impact a client if forced to retain new legal counsel 6“ Given this Court is not likely to be misled by possible testimony or evidence of Pedram and Attorney Sheesley’s communications, disqualifying Sheesley would risk undue hardship against the speedy, equitable, and fair determination of this matter COTG would likely suffer prejudice if its counsel of record were to be disqualified The nature of this case surmounts to more substantive issues than the content of the exchanged messages at issue Further, the Court does not believe the probable tenor of Sheesley s testimony outweighs the substantial hardship that COTG would experience as a result of his disqualification
V CONCLUSION
$42 The Court finds that Hoolink does not lack standing to seek disqualification of Sheesley given that an attomey client relationship is unnecessary to permit an opposing party to file a motion to disqualify counsel and “based on the applicable ethical rule that requires attorneys to come forward if he or she has potential knowledge of an ethical breach ’69 However, the Court finds that Sheesley s conduct at issue does not violate the Virgin Islands Rules of Professional Conduct Further, the Court finds that his communications with Pedram are not prejudicial to the administration ofjustice Lastly, the Court finds that there is no basis in law or fact to disqualify Sheesley on the basis that he is a necessary witness His testimony about the Facebook post and
67 P1 s Response to Pedram and Link 5 Amended Mot to Disqualify at 8 68 Daily New Publ'g C0 Virgin Islands Daily News J Lowe Davis v 29'" Legislature ofthe Virgin Islands, 59 V I 138 146 (Super Ct 2012) (intemal citations omitted) 69 Keith Swisher, Article, The PI acllce and Theory ofLawyer Disqualification, 27 Geo J Legal Ethics 71, 88 n 62 (citing 25 Am J Trial Advoc 17 18 21 22 (2001)) (other citations omitted) Id (collecting cases) and See Santander Sec LLC (E D Pa Apr 3 2017) (citing Kevllk 724 F 2d 844 847 (lst Cir 1984)) Canbbean Offthe Gm! Plaza LLC v Pedram er al 2021 VI Super 33U ST 2020 CV 00179 Memorandum Opinion & Order Page 14 of 14
text message communications at issue are obtainable elsewhere Even if his testimony were not obtainable elsewhere, the subject matter of the communications is not a materially contested issue that would warrant disqualification of Sheesley’s dual role as counsel and a witness Therefore, Defendants Amended Motion to Disqualify will be denied
Accordingly, it is hereby
ORDERED that Defendants Amended Motion to Disqualify, which was filed on July 2, 2020 is DENIED and further
ORDERED that Defendants Motion to Disqualify, which was filed on June 29, 2020, is DENIED as moot and further
ORDERED that copies of this Memorandum Opinion and Order shall be directed to Attorney Michael L Sheesley and Attorneys Eric A Hiller and Justin King of Clyde & Co US LLP
DATED BlISIZOZl 2 MW: :2 )MW DENISE M FRANCOIS Judge of the Superior Court of the Virgin Islands
ATTEST
TAMARA CHARLES Clerk of the Court
BY W or LORI BOYNES Il Chief Deputy Clerk 5Z / A .20 2/