Lex Mundi Global Attorney-Client Privilege Guide |
|
Virgin Islands, U.S. |
|
|
(Latin America/Caribbean)
Firm
Dudley Newman Feuerzeig LLP
Contributors
Justin Holcombe |
|
| Is the ACP recognized in your jurisdiction? | Yes |
| If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure... | N/A
|
| Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product? | No |
| In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.) | No. However, there are limited exceptions to the attorney-client privilege. For example, attorney-client privilege does not apply “if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.” V.I. Code Ann. tit. 5, § 852(d). |
| Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? | The terms, “client” and “representative of a client,” are defined by statute. See generally V.I. Code Ann. tit. 5, § 852. Communications between representatives of clients (i.e. employees of a corporation) and their legal counsel are protected by attorney-client privilege. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | No |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | n/a (the USVI is a common law jurisdiction) |
| Is the common interest doctrine recognized in your jurisdiction? | Yes |
| How is the doctrine articulated in your jurisdiction? | The Supreme Court of the Virgin Islands has not yet issued a decision on the Common Interest Doctrine. However, in other decisions, it has been articulated as follows: |
| Must a common interest agreement be in writing? | No. However, it is recommended that the parties have a written agreement. |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | This issue has not been addressed by the legislature or courts. In general, lending is regulated in the U.S. Virgin Islands. Accordingly, litigation funding must comply with applicable laws pertaining to lending. Attorneys may not engage in litigation funding. See, e.g., Virgin Islands Rules of Professional 211.1.8(i). |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | No |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | V.I. Code Ann. tit. 5, § 852(d)(1). |
| Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) | V.I. Code Ann. tit. 5, § 852(e) and Virgin Islands Rules of Civil Procedure 26(b)(3). |
| What are the elements of the protection in your jurisdiction? | Based on the comments for V.I. R. Civ P. 26(b)(3), “long-standing doctrines of trial preparation material protection, “work product,” are continued, subject to the traditional doctrine that a showing of special need and an inability to obtain equivalent materials may overcome the protections of this doctrine. However, “opinion work product” displaying counsel's mental processes, conclusions, strategies and the like, cannot be obtained. See also V.I. Code Ann. tit. 5, § 852(e). |
| Does your jurisdiction recognize an accountant-client privilege? | No |
| Does your jurisdiction recognize a mediation privilege? | Yes |
| Does your jurisdiction recognize a settlement negotiation privilege? | No. However, settlement negotiations may not be admissible as evidence. Virgin Islands Rules of Evidence, Rule 408 is similar to Federal Rules of Evidence, Rule 408. |
Lex Mundi Global Attorney-Client Privilege Guide
Virgin Islands, U.S.
(Latin America/Caribbean) Firm Dudley Newman Feuerzeig LLPContributors Justin Holcombe
Updated 25 Mar 2020Yes
N/A
No
No. However, there are limited exceptions to the attorney-client privilege. For example, attorney-client privilege does not apply “if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.” V.I. Code Ann. tit. 5, § 852(d).
The terms, “client” and “representative of a client,” are defined by statute. See generally V.I. Code Ann. tit. 5, § 852. Communications between representatives of clients (i.e. employees of a corporation) and their legal counsel are protected by attorney-client privilege.
No
n/a (the USVI is a common law jurisdiction)
Yes
The Supreme Court of the Virgin Islands has not yet issued a decision on the Common Interest Doctrine. However, in other decisions, it has been articulated as follows:
“To assert this doctrine, one must demonstrate that: (1) the parties shared information due to actual or anticipated litigation, (2) the disclosures furthered a common interest, and (3) the disclosures are consistent with ‘maintaining confidentiality against adverse parties.’” See, e.g., In re Prosser, No. 3:06-BK-30009(JKF), 2010 WL 1704480, at *2 (Bankr. D.V.I. Apr. 27, 2010)
No. However, it is recommended that the parties have a written agreement.
This issue has not been addressed by the legislature or courts. In general, lending is regulated in the U.S. Virgin Islands. Accordingly, litigation funding must comply with applicable laws pertaining to lending. Attorneys may not engage in litigation funding. See, e.g., Virgin Islands Rules of Professional 211.1.8(i).
No
Yes
V.I. Code Ann. tit. 5, § 852(d)(1).
V.I. Code Ann. tit. 5, § 852(e) and Virgin Islands Rules of Civil Procedure 26(b)(3).
Based on the comments for V.I. R. Civ P. 26(b)(3), “long-standing doctrines of trial preparation material protection, “work product,” are continued, subject to the traditional doctrine that a showing of special need and an inability to obtain equivalent materials may overcome the protections of this doctrine. However, “opinion work product” displaying counsel's mental processes, conclusions, strategies and the like, cannot be obtained. See also V.I. Code Ann. tit. 5, § 852(e).
No
Yes
No. However, settlement negotiations may not be admissible as evidence. Virgin Islands Rules of Evidence, Rule 408 is similar to Federal Rules of Evidence, Rule 408.