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Virgin Islands Bar Association v. Dench

decided: September 8, 1954.

VIRGIN ISLANDS BAR ASSOCIATION
v.
EUSTACE V. DENCH, APPELLANT.



Author: Biggs

Before BIGGS, Chief Judge, and GOODRICH and McLAUGHLIN, Circuit Judges.

BIGGS, Chief Judge.

The appellant, Eustace V. Dench, Esquire, an attorney and counsellor at law in good standing of the Bar of the State of New York, was admitted to the Bar of the Virgin Islands on February 1, 1950 by the District Court of the Virgin Islands. Prior to his admission to the Bar of the Virgin Islands, the question was raised by the Bar Examining Committee as to whether or not, if admitted to that Bar, he should and would relinquish his practice as an attorney and counsellor at law of the State of New York. Mr. Dench was maintaining a partnership or was in association with Leon H. Murray, Esquire, a member of the New York Bar. The following colloquy took place between Mr. Dench and the court:

"Q. Mr. Dench, the question is: a week or so after you are admitted in the Virgin Islands and a client * * * comes to your office, do you intend to continue filing cases with yourself as the attorney of record, or of having them filed by Mr. Murray? A. That is something I would like for the court to determine. I would much prefer to have them filed in my name. * * *

"Q. It would not be proper to ask the court to determine whether you should file an action in the United States - what I am asking you is: is it your intention to continue to do so? A. I would not do it if I thought by doing it that would prevent my being admitted here.

"Q. Mr. Dudley [a member of the Bar Examining Committee] is asking if you were admitted today, is it your intention to continue filing cases as the attorney of record in New York? A. I would say then, if there is no prohibition in the Courts of this jurisdiction that I continue to file cases in New York City; I would like to continue to file them in my name. * * *"

Mr. Corneiro, who apparently was the counsel representing Mr. Dench, then said: "He [Mr. Dench] is willing to comply with any regulation that may be applicable to him."

The court then ruled as follows:

"Upon the assurance that he intends to give up his practice in New York as soon as his business is wound up, and upon that assurance and upon giving to the applicant the benefit of the doubt as to substantially complying with the ninety day rule, and since it is within the province of the Court in construing that rule, the word 'residence' mentioned therein to mean 'physical abode', and it appearing that he has substantially complied with the 'physical abode' requirement, I am inclined to give him the benefit of the doubt; and upon his assurance that he intends to practice law in the Virgin Islands and to give up the practice of law in New York City, and upon the completion of his winding up his business and so forth, I would be inclined to admit him and, therefore, the Order will be that he will be admitted. I would be inclined to continue the matter until such time as he had given up his practice in New York, but in view of the fact that it seems clearly unethical for a lawyer to practice in two jurisdictions at the same time and, if there be any violation, his name could be removed from the Rolls, I think, under those circumstances, the Order can be drawn and that will be the Order of this Court."

The court on the following day made an order in the usual form admitting Mr. Dench to the Bar of the Virgin Islands as an attorney at law and directed the Clerk to issue the customary certificate to him. No qualification was imposed upon Mr. Dench's admission in the "Judgment" or order of the court admitting him to the Bar of the Virgin Islands. But the order contained two recitals. The first was to the effect that Mr. Dench had been found to be qualified to practice law by the Bar Examining Committee of the Virgin Islands but that the Committee was of the view that the "residence requirement had not been met" by Mr. Dench. The second recital stated that after hearing the testimony of Mr. Dench and the arguments of the Bar Examining Committee and Mr. Corneiro, the court found that the "residence requirement" had been met by Mr. Dench. It is not clear, as will appear hereinafter, what was the "residence requirement" to which reference was made.

On March 9, 1953, the Virgin Islands Bar Association filed a petition in the District Court of the Virgin Islands, in substance reciting that Mr. Dench had continued his New York practice and was continuing it; that, therefore, he had not lived up to the "assurance" of which the court had spoken prior to the entry of the judgment admitting him to the Bar of the Virgin Islands, viz., that he, Mr. Dench, intended "to give up his practice in New York as soon as his business * * * [was] wound up, * * *." The Bar Association petition recites listings of Mr. Dench in the New York Telephone Directory, in the Martindale-Hubbell Law Directory and in the New York Lawyers Diary and Manual indicating that he still - to employ the phrase of the petition - "[holds] himself out as an active, practicing attorney in State of New York, in addition to his practicing in the Virgin Islands * * *." The petition goes on to allege: "That said attitude and dual practice is prejudicial to the conduct of business in the Courts of this jurisdiction and to the members of the bar of the Virgin Islands". The petition closes with a prayer for a judgment declaring the rights of Mr. Dench to practice law in both New York and the Virgin Islands.*fn1

To this petition Mr. Dench filed an answer alleging that the quotations from the minutes of the hearing on his admission quoted in the petition and in this opinion are "out of context and * * * [do] not present all of the true picture of respondent's [Mr. Dench's] declaration." Mr. Dench, however, does not categorically deny that the court admitted him to the Bar of the Virgin Islands upon an "assurance" that he would wind up his "business" in New York.

An Ordinance was enacted by the Colonial Council of the municipality on February 20, 1919, "* * * to better provide for the appointment of attorneys, their admission to practise, their duties and authority, and for other purposes." It appears that this Ordinance with one minor amendment, not here pertinent, was in effect on February 1, 1950, when Mr. Dench was admitted to the bar. Section 3 of the Ordinance provides for the admission of an attorney "without further examination as to the applicant's learning and ability" on a certificate showing him to have been duly admitted to practice as an attorney in the highest courts of any State. The Ordinance contains no provision as to residence pertinent to the problem before us.*fn2

On July 10, 1950, after Mr. Dench's admission, new "Rules and Regulations" governing the admission of attorneys to the Bar of the Virgin Islands were adopted by the court below. Paragraph 3b of the section concerning admission by examination and paragraph b of the section concerning admission of attorneys licensed in other states of these "Rules and Regulations" both provide, "That immediately preceding the filing of his application for admission * * * [the applicant must show that he] has been an actual inhabitant and bona fide resident of the Virgin Islands for at least ninety (90) days; and that at least sixty (60) days before the filing of the said application he has also filed with the Clerk of ...


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