Legal Discipline: The Nicest Lawyer You Don't Want to Know

Katya Valasek:

We're joined today by Tanisha Bailey-Roka, Chief Disciplinary Counsel at the U.S. Virgin Islands Supreme Court, where she investigates lawyers and judges who break the rules. Let's start by zooming out. In the U.S. Virgin Islands, as with any U.S. state, there is a governmental entity that regulates the practice of law and oversees lawyers practicing in their jurisdiction. In the U.S. Virgin Islands, it's the U.S. Virgin Islands Supreme Court. They set the boundaries of the authorized practice of law as well as of ethical conduct. So what do you do on the Court's behalf?

Tanisha Bailey-Roka:

I investigate, evaluate, prosecute, and to some degree I adjudicate -- I have quasi-judicial functions -- all instances and allegations of lawyer and judicial misconduct. I work alongside the Board of Professional Responsibility, the Board of the Unauthorized Practice of Law, the Commission on Judicial Conduct. I work with our IOLTA committee certifying local banks for escrow accounts and IOLTA funds. I do the annual registration statement, non-compliance lists. I do disciplinary histories for lawyers, receiverships. I think that's some of all that I do. Some of all that I do.

Katya Valasek:

Yeah, and you also work with attorneys who are suffering from a physical or mental condition that may adversely impact their ability to serve the public as well, correct?

Tanisha Bailey-Roka:

Absolutely, that's attorney disability and attorney misconduct, judicial disability and judicial misconduct. Yes.

Katya Valasek:

So it seems like your role then is both prosecutorial in nature, but also a counseling role as well.

Tanisha Bailey-Roka:

Absolutely. I couldn't make a better characterization for what the ethics office does. That's exactly right.

Katya Valasek:

Do you only have jurisdiction over lawyers who are physically in the Virgin Islands?

Tanisha Bailey-Roka:

No, we have a broad jurisdiction over anyone who attempts to practice law in the Territory. That would come under the board of the unauthorized practice of law. So even if you are not barred with us, if you come into the Territory and you're holding yourself out wrongfully as a lawyer, then we would have jurisdiction over you as well. We also have jurisdiction over attorneys who have been disbarred, who are no longer members of the Bar. So yes, anyone who does anything with law and the practice of law comes under the jurisdiction of the court and the ODC and the board.

Katya Valasek:

And that’s whether they're practicing virtually or actually on the Virgin Islands physically.

Tanisha Bailey-Roka:

Absolutely.

Katya Valasek:

So before we get into more detail, let's first talk about the concept of attorney discipline more generally. What is your goal when it comes to the work you do in the lawyer community?

Tanisha Bailey-Roka:

Well, I call it the three Rs and I always forget one of them. But it's reprimand, restitution and rehabilitation. And that's something that I came up with to remind me always of what the sort of aura of the office has to be. There is a difference between punishment and discipline. I don't punish lawyers, I discipline them.

So restitution would be the first one. If you have caused harm, then it is your responsibility to make the people that you have harmed whole. And so that could come from financial restitution or any host of ways that we can help and assist the person that you have harmed. Reprimand would be as simple as a letter of warning or something as a career ending as disbarment. And then of course, the final is rehabilitation.

To be a lawyer is to be in a state of stress. And lawyers have a very high rate of mental health illness, as well as drug or alcohol addiction. And I have compassion for both in the ways that I think about that lawyer. And so often when a lawyer comes before me, I will ask, “is there something that you would like to share with me that can tell me? Because when I look at your career, I see no charges, no complaints. Then all of a sudden here in this point of time, I see nothing but complaints coming to you. And then now here I see nothing again. What is happening here that's causing all of these complaints to generate?”

Sometimes you'll hear, “I was sick,” “I'm a solo.” We get a lot of complaints about the solos because they're doing everything on their own. So part of my thinking on discipline is the rehabilitative process of that. And our rules, unlike some other jurisdictions where you get disbarred, that's it for you. We allow for the fourth R, which is redemption. We allow you to come back if you have demonstrated that you've got this, you learned from this. And so I think that's a key component for how I think about discipline. Bob Marley says, “is there no room for the hopeless sinner?” Right. So I think about how can we get this person not to come back again? And we have programs like lawyer assistance programs with our local bar that we're trying to rely on more to help lawyers to get help.

Katya Valasek:

Because the work you do can lead to disbarment, how do you separate emotion from the steps that you may take to end someone's career?

Tanisha Bailey-Roka:

Well, that's an interesting question because I think very often we think of stoicism as the highest way to think about emotional intelligence. How can I divorce myself from my feelings? But we are human beings, right? And feelings I think of as information. My feelings are just telling me to be aware of something.

And so what helps me to focus on balance is the rules. As long as I'm following the rules, I'm comfortable with my decisions. And in looking at that, if I keep those three Rs in the back of my mind as the ultimate goal for the outcome, then it doesn't so much matter what was done, as much as it matters what do we do now in the disciplinary process to one, ensure that it never happens again, and two, to allow for restitution to those who have been harmed.

Like I said, I live in a community that's largely underserved. If somebody can pull together the funds to get a lawyer because they're in a dire moment, that lawyer has an obligation to do their absolute best to help those people. And if you fail to do that, that's where discipline comes in. So I don't know that in terms of dissecting your emotions from it matters as much as balancing the interests of everyone that's involved with the rule. And if you're following the rule, you're okay.

We need people to do this work. It's tough work, but if without it, it's a wild, wild West. And our entire country rests on the pillars of law and order. And what we're doing is providing law and order to our own law and order profession. And I think it is a worthy thing for those who want to practice law or want to be a part of the practice. And it's a noble thing, especially minorities and women. California just did an incredible study about disparties in regulation. And I think this sense representation and having more people from all walks of life involved in that process would be a gift to that process.

Katya Valasek:

I don't think a lot of law students consider this type of work when they're thinking about their careers after graduation. How did you end up in this role?

Tanisha Bailey-Roka:

I don't know. I think my life is just kind of, it's interesting because I believe in doing things that I love. And I had been at the Public Services Commission for about 10 years. I don't hop and skip. I tend to stay in places where I like and I enjoy the work, but I wanted to do something more. I was a general counsel there. I wanted to engage another part of myself. And then this position came up and I said, “oh that's me. Oh that's me.” Fairness, fighting, fixing. I could do that. And I did the interview and I was thankful that the Court said we wanted you to work with us.

Katya Valasek:

I hear you work a block from where you were born. So does this mean that your consumer protection role means extra to you because you are literally working in your community?

Tanisha Bailey-Roka:

Well, let me tell you about that, Katya. I live in a community where we call it the CIA, the Crucian Intelligence Agency. You live in a small community and everybody knows everything about everybody. Even before you do it, they know you're about to do it. So I don't have the distance that I think my counterparts in bigger cities like New York or California have where you are prosecuting or investigating people that you…I have passed people that are under investigation in Plaza, which is our grocery store, and said, “hi,” because we have that close, we're a small net community. But for me it carries an added incentive. Not only am I born a block, I work a block away from where I was born, I work down the street furthers from where my grandfather used to be the chief of police in our town.

So, justice and concepts of justice and community centered justice matters to me. And I think about it in terms of how I run our office and what is the backdrop and intention of our office. And that can be difficult because when you're in a small community, sometimes you have to tell a community, “no, you're wrong. No, that's not unethical.” Or no, I don't care about right or wrong. I care about ethical and unethical and there are differences between that. And that can be hard to do in a small community where you were born a block away from where you work, but at the same time it can be rewarding for a community where you were born a block away from where you work.

Katya Valasek:

Can you give an example of a situation where something being ethical or unethical was different from something being right or wrong?

Tanisha Bailey-Roka:

Absolutely. I had an instance with that once where a lawyer and a client got into a fee dispute. And the client said that the lawyer charged them too much. The lawyer produced documentation that appeared to be credible that said, this is the work that I did in furtherance of this. And so you present that again in an underserved community. And the complainant says, “but I didn't get what I wanted and it doesn't feel fair.” And I said, well, it may not feel fair that you paid and the outcome wasn't what you wanted, but it's also not fair to the lawyer to work and not be compensated. And work was done. They didn't violate any of the rules. They did work on your behalf. It didn't come out the way that you wanted it to. So for that person, it's wrong. For us, it's ethical.

Katya Valasek:

I know you left your community to go to law school. Did you always intend to come home for your career?

Tanisha Bailey-Roka:

Yes and no. Life on the island is, like I said, very small. And sometimes you enjoy the freedom that you have in the States. I come from a very, at least in the part of town that I grew up, a very well-known family. I look like my father. I can't walk down the street and not be, that's Bailey-daughter. Somebody knows who you are. So no, I don't think it was my intention to necessarily come back home. But let me tell you, coming back home, I can't see myself living in the States anymore. It's a thing to drive home and see the ocean on the other side of the street ahead of you or on the horizon. I used to wake up in the States and hope winter didn't come like it was a hurricane every year because it was so cold. But I love being home. I encourage other Virgin Islanders to come back home because I think we owe it to home to make it better. And if I can try to add to the better in some big or small way, I want to do that.

Katya Valasek:

Your career is very heavily leaning into public service. You clerked for a judge in the U.S. Virgin Islands trial court, who eventually became a justice in 2007 when the Virgin Islands got a Supreme Court. And then your next job was with the Public Services Commission where you regulated utilities. Can you talk a little bit about that public service focus being a driving force of your career choices?

Tanisha Bailey-Roka:

Like I said to you, down the road from where I work too, my grandfather was the chief of police in Frederiksted Town. My father was a director for the department of labor. My family has dedicated itself to the concepts of justice and public service. So it felt right and natural for me when I came back to kind of continue on with that. When I was in law school, my focus, I was editor in chief of Margins Law Journal. We talked about marginalized people and the law and how it affected them. So that's just always been part of my being. The idea of being community centered and public centered is always who I have been.

Katya Valasek:

Now that we understand this, let's talk through your role in the attorney misconduct process. What are some of the most common accusations made against lawyers?

Tanisha Bailey-Roka:

Communication, that's the big one. Communicating effectively with your clients is such an important component to representation. And like I said, a lot of that sometimes comes from the solos who are overworked and understaffed. They're doing a lot, they're carrying three and four different titles there within their jobs. And sometimes a result of that is that they don't get back to clients as quickly as they want to. If they get sick, then everything has to be on hold for the client because they're unable to have someone else step in. So it can lead to issuesof diligence. It can lead to other types of misconducts just because there's a failure to properly convey to your client what your limitations and your abilities are.

Katya Valasek:

The first step for any accusation is a formal complaint. What happens when you receive one?

Tanisha Bailey-Roka:

We review it, we screen it and evaluate it on its face to see if there is any merit. We also docket it so that we are aware that this complaint came in. And usually we'll send it out to the attorneys so that they are aware that they have a complaint. If we find that it has zero merit, for instance, I had a complaint once that said that this lawyer was a member of the Illuminati. On its face, even if he were a member of the Illuminati, it wouldn't necessarily be a misconduct for him. But on something like that, we may just outright let it go. But usually we try to give the complainant an opportunity to be heard and the lawyer to explain to us, to the complainant, what happened.

Katya Valasek:

Does the attorney know who filed the complaint when you alert them?

Tanisha Bailey-Roka:

Yes, the attorneys do. The judges don't initially. Those are confidential.

Katya Valasek:

How often do you dismiss something outright? Is that a very small occurrence?

Tanisha Bailey-Roka:

I have done it on its face once, once. And that was the Illuminati one. That was just one time.

Katya Valasek:

So when you start your preliminary investigation, what tools do you have to get the information you need besides talking to the attorney or the complainant?

Tanisha Bailey-Roka:

In the initial phase, it is a lot of talking to the attorneys, talking to the complainants, asking them both for documents that support either of their sides so that we could get a better view within that initial process of exactly what's happening there. We have subpoena power. We have used those to get bank records and things like that that we may need to review. But initially, especiall in the preliminary phases, it really is just about getting the information.

Katya Valasek:

I assume then that sometimes after this preliminary investigation, that's the next point at which a dismissal may occur.

Tanisha Bailey-Roka:

Yes, yes, if we find that on its face there's nothing that the lawyer did wrong, we will dismiss.

Katya Valasek:

If you decide to move forward, what happens next?

Tanisha Bailey-Roka:

Well, if we find that it's dismissed because there's no basis, then the matter remains confidential. And it can only be spoken about by a waiver in writing by the respondent attorney or by court order. So the complainant cannot, under penalty of possible contempt charges of the court's rule, disclose that that complaint existed.

So if that does not happen, and we do find that there is cause to continue, we write a report and recommendation, and we send it to the preliminary review committee of the Board. It's comprised of three members, and they act sort of like a grand jury. They review the information and they see whether or not there's probable cause for the matter to move forward. It's an ex parte process, meaning the respondent attorney is not a part of it. They may submit information for the committee to consider, but they are not a part of the process.

Katya Valasek:

What is your role in helping them through that thought process? Do you argue in a hearing? Are they just looking at the records that you received and the report that you created?

Tanisha Bailey-Roka:

Yes, it's all purely records. There's no arguments. They can ask us through their chair, their committee chair, if they have additional questions, they need additional information. But it's a purely documentary process.

Katya Valasek:

Okay, okay. And then in your report that you're writing for them, are you citing law?

Tanisha Bailey-Roka:

Absolutely. We use the rules of professional conduct. And we also use the case law at hand. Remember, that's the balance. The balance is the rules. So the case law gives us context for how other jurisdictions have treated this same instance. And we use that to tell the committee or share with the committee what our perception is of this instance.

Katya Valasek:

So then this strikes me as the next point where the options are that the matter gets dismissed or it's going to move forward to the next step. How do those two options play out?

Tanisha Bailey-Roka:

Okay, so if the committee finds there's no probable cause, then they'll dismiss it. The matter is closed and it's treated just like honest face determinations that we make. Now, if the committee finds that there is probable cause, then they issue a petition for discipline. And that's a charging document. It says what all of the misconduct that this one attorney committed. And then that is sent to the Board itself and the Board on Professional Responsibilities will then go through their process, which includes now the formal investigation. We have discovery, we have hearings, we have a report that's then generated after the hearing by the board and submitted to the Court if they find, if the Board finds that yes this is this is worth us moving forward on we'll have the hearings. If the Board finds this is not, the Board can also dismiss. But if the Board finds that it does and the sanction that the Board wants to impose is a public one, meaning a public reprimand or disbarment or suspension, then that has to be approved by the Supreme Court.

Katya Valasek:

So is that the point at which a complaint becomes public?

Tanisha Bailey-Roka:

Yes. It's advertised. It's sent to the Bar Association, and they put it on their website. We also send it out with a distribution list that goes to all the judges locally, as well as to the Supreme Court. We send it to other national data banks that house attorney disciplinary outcomes. So it's publicized broadly. Because there's also the concept of reciprocal discipline. So if you did something in the Virgin Islands and you were publicly sanctioned for it and you're a member of the D.C. bar or the New York bar, then you can face added sanctions there too on reciprocity.

Katya Valasek:

How long can this process takes? It sounds like it can be very involved.

Tanisha Bailey-Roka:

Well, I guess, it's supposed to, by the court rules, I believe take about a year from complaint to final disposition. But we have a tremendous backlog of cases that has really clogged up how quickly we are able to move. And for a long period of time, I was the only person in my office wearing all of those hats. Literally, when I say the only person, I was my own secretary, my own paralegal. I was just, I call myself an army of one. I have recently, thanks to the generosity of the Court, been given one and a half helpers, one deputy and a half-time, part-time contracted special disciplinary counsel. And it has really been a joy to have, first of all, somebody else to talk with. Imagine not being able to talk to anybody about the things that you, and some of the things are pretty egregious, and you have to hold that. You can't talk about it to anybody.

And then to still be between those two opposing forces who both think you're doing the worst job in the world because nobody wants to have their case dismissed and nobody wants to have their law license in jeopardy. So it's a tremendous level of stress. And I think it really has played a role in how long the disposition process has taken. Now that I have help and knock on wood, the Court will give me more help. I think that we will do more. I don't know about faster, but I think we will definitely do more because we just have more help.

Katya Valasek:

Yeah. Well, I can see all the ways in which you must be very sympathetic to those solo practitioners where you're starting to look into their issues and you see that it's because they're overworked and just trying to do the best they can. Seems like you have been juggling that heavy workload yourself. Are plea agreements a possibility throughout the process?

Tanisha Bailey-Roka:

I love plea agreements. They are our lifeblood of moving things along. And with most of the work that I was able to do within that nine years came from plea agreements. The ones that I knew would take the longer time, the more litigious respondents, the more aggressive complainants, I had part-time help also before I got the other two for a couple of years. And I would give those to him. And it was, you just, I mean, you're juggling administrative work, right? You're juggling prosecutorial work. In most jurisdictions, the ODC and Bar Counsels only deal with lawyer grievances. In the Virgin Islands, you're also dealing with judicial issues as well. So it literally is a tiny office that's the focal point of everything, the funnel point of every form of misconduct that occurs within the practice. So yeah, it's a lot.

Katya Valasek:

That is a lot. And in another one of our episodes, we hear from two professional malpractice lawyers who often find themselves personae non grata because of the work that they do to hold their peers at the bar accountable. Do you have a similar experience?

Tanisha Bailey-Roka:

Absolutely. I'm the kid with the demerit slip in class. Nobody likes me. But I'm respected by most who know that this is my job. I'm just doing my job. And I'm trying to do it in a way that's balanced and fair. I've lost friendships. People who used to eat at my home, that I have lost friendships. And it's sad because I knew that if it were not for this job, that those friendships would still be intact, especially in a small community. But it's okay, because like I said, if I'm following the rules, I'm okay with it.