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COMMITTEE ON RULES AND JUDICIARY 12/12/2024-AMENDED AND REPORTED OUT TO THE FLOOR BILL NO. 35-0336 Thirty-Fifth Legislature of the Virgin Islands September 18, 2024 An Act amending title 5 Virgin Islands Code, subtitle 3, part I by establishing the Office of Conflict Counsel, granting personal immunity to individuals providing legal representation or services to indigent defendants, and making an appropriation to establish the Office of Conflict Counsel PROPOSED BY: Senator Novelle E. Francis, Jr. Be it enacted by the Legislature of the Virgin Islands: 1 SECTION 1. Title 5 Virgin Islands Code, subtitle 3, part I is amended in the following 2 instances: 3 (a) In chapter 301, by adding section 3503a. that reads: 4 “§ 3503a. Immunity from personal liability 5 All attorneys and other personnel employed by the Office of the Territorial Public 6 Defender and the Office of Conflict Counsel and any contracted attorneys, investigators, 7 or firms, as well as all private counsel appointed pursuant to sections 3503 or 3535 are 8 immune from personal liability for acts performed in the course of their official duties, 9 including suits for legal malpractice or professional negligence. This immunity may not 10 be construed to preclude the Supreme Court of the Virgin Islands, the Board on 11 Professional Responsibility, the Office of Disciplinary Counsel, the Virgin Islands Bar 12 Association, or other licensing entities from adjudicating a grievance or other claim of 13 ethical misconduct and, if warranted, imposing appropriate discipline.” 14 2 (b) In chapter 302, subchapter I, section 3524: 1 (1) in the section title, insert “; conflict of interest” after “Public Defender”; 2 (2) designate the existing language as subsection (a); and 3 (3) add subsections (b) through (e) to read: 4 “(b) The Public Defender is permitted to withdraw from a case upon a 5 finding by a court that a conflict of interest exists. 6 (c) To request withdrawal from a case due to a conflict of interest, the Public 7 Defender shall file a motion describing with specificity the nature of the conflict of 8 interest. If the Public Defender determines that ethical obligations prevent a public 9 disclosure of the nature of the conflict of interest, the Public Defender shall cite any 10 applicable legal authority for that determination, and that portion of the motion 11 must be sealed. An order granting a motion to withdraw based on a sealed motion 12 to withdraw may be appealed. 13 (d) Upon a court’s determination that a conflict of interest exists, the court 14 shall appoint the Office of Conflict Counsel. 15 (e) For purposes of this section, the existence of a conflict of interest is 16 governed by the Virgin Islands Rules of Professional Conduct. 17 (c) Add chapter 302a. that reads: 18 “Chapter 302a. Office of Conflict Counsel 19 § 3531. Office of Conflict Counsel; established 20 (a) There is established, the Office of Conflict Counsel (“Office”). The Office is 21 established within the judicial branch of the Government of the Virgin Islands for the purpose 22 of representing indigent criminal defendants in cases where the Office of the Territorial Public 23 Defender has a conflict of interest. The Office is under the supervision of The Judiciary of the 24 Virgin Islands Standing Committee on Indigent Appointments (“Committee”) for 25 administrative purposes only. 26 3 (b) For purposes of this chapter, the existence of a conflict of interest is governed by 1 the Virgin Islands Rules of Professional Conduct. 2 § 3532. Staff; qualifications 3 (a) The Committee shall hire a Chief Conflict Counsel who is licensed to practice law 4 in the Virgin Islands. The Chief Conflict Counsel is responsible for administering the Office. 5 The Office must be staffed with attorneys, licensed to practice law in the Virgin Islands, and 6 secretarial, investigative, clerical, and other personnel as necessary to discharge the duties of 7 the Office. To ensure the stability and continuity of the Office, no employee of the Office, 8 hired prior to December 2024, shall be subject to dismissal or alteration of compensation by 9 the Committee except for cause. 10 The Committee shall determine the compensation of all employees of the Office. 11 The Committee, upon recommendation of the Chief Conflict Counsel, shall hire and 12 terminate all employees. If the Committee lacks sufficient members to constitute a 13 quorum, the Administrator of Courts shall hire and terminate all employees, including 14 the Chief Conflict Counsel. 15 (b) The general personnel policies applicable to the judicial branch of the Virgin 16 Islands is applicable to the Office, except when the Committee elects to adopt different policies. 17 § 3533. Contracts with attorneys and investigators 18 (a) The Office may contract with private attorneys or law firms to provide 19 representation to clients to which the Office has been appointed, and with investigators or 20 investigative firms for the provision of investigative services. 21 (b) The Office shall only contract with attorneys licensed to practice law in the Virgin 22 Islands and all investigators, law firms, and investigative firms must be licensed to conduct 23 business in the Virgin Islands. All contracts must be in writing, must specify the manner of 24 compensation, the number or type of cases to be undertaken, and limitations, if any, on the 25 services to be provided. The compensation paid to private attorneys contracted by the Office 26 4 must be the same as provided to court-appointed counsel as provided for under 5 V.I.C. § 3503 1 (b). 2 § 3534. Duties 3 (a) The Office shall provide legal representation only in cases where a court has 4 determined that the Office of the Territorial Public Defender has a conflict. 5 (b) The Office shall represent clients consistent with the requirements of 5 V.I.C. § 6 3524 (a). 7 (c) The Chief Conflict Counsel and attorneys employed by the Office may not engage 8 in the practice of law other than for the Office. 9 § 3535. Appointment of Private Counsel 10 (a) If a conflict of interest exists, the Office may request withdrawal from the case in 11 accordance with the procedure and limitations set forth in 5 V.I.C. § 3524 (c). 12 (b) If the Office of the Territorial Public Defender and the Office of Conflict Counsel 13 have both been granted permission to withdraw from a case due to a conflict of interest, the 14 court shall appoint other counsel to represent the defendant at every stage of the proceedings 15 and may appoint counsel from a panel of private attorneys in accordance with 5 V.I.C. § 3503 16 (a). 17 § 3536. Administration; accounts and budget 18 (a) The Judicial Branch Administrative Office shall establish one or more separate 19 accounts for the deposit of funds allotted to the Office of Conflict Counsel. The funds shall be 20 expended exclusively for the operating expenses of the Office, as authorized by the Committee. 21 The funds shall remain available until expended. 22 (b) Not later than March 30 of each year, the Office of Conflict Counsel shall submit 23 to the Chief Justice and the Administrator of Courts, the Office’s proposed budget for the 24 following fiscal year, which must be included in the proposed annual budget for the judicial 25 branch of the Virgin Islands.” 26 5 SECTION 2. The sum of $500,000 is appropriated in the fiscal year ending September 1 30, 2025, from the General Fund of the Treasury of the Government of the Virgin Islands to 2 the judicial branch of the Government of the Virgin Islands, to establish the Office of Conflict 3 Counsel. 4 BILL SUMMARY 5 This bill amends title 5 Virgin Islands Code, subtitle 3, part I, chapter 301 by granting 6 personal immunity to individuals providing legal representation or services to indigent 7 defendants. This bill also establishes the Office of Conflict Counsel (“Office”) within the 8 judicial branch of the Government of the Virgin Islands for the purpose of representing indigent 9 criminal defendants in cases where the Office of the Territorial Public Defender has a conflict 10 of interest. The Office is under the supervision of The Judiciary of the Virgin Islands Standing 11 Committee on Indigent Appointments who is authorized, upon recommendation of the Chief 12 Conflict Counsel, to hire all employees. The Chief Conflict Counsel is responsible for 13 administering the Office. The Office is authorized to contract with private attorneys or law 14 firms to provide representation to clients to which the Office has been appointed, and with 15 investigators or investigative firms for the provision of investigative services. The bill further 16 requires the Judicial Branch Administrative Office to establish one or more separate accounts 17 for the deposit of funds allotted to the Office of Conflict Counsel and makes an appropriation 18 of $500,000 from the General Fund of the Treasury of the Government of the Virgin Islands to 19 the judicial branch of the Government of the Virgin Islands, to establish the Office of Conflict 20 Counsel. 21 BR23-0651/August 21, 2024/GC 22 ..\..\..\..\AMENDS\35th Legislature\FRANCIS, JR., NOVELLE E\Amendment 35-1121\35- 23 1121 - DRAFTED ON YELLOW.docx 24