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VIRGIN
ISLANDS BAR ASSOCIATION Simpson,
George Russel PHONE:
(340-715-5220)
On
October 6, 2003, I had applied for approval from the board of SBCW for
a change in the window type on the front of my Condominium Unit. The approval was required by the By-laws
of SBCW. Article V, Section
13 “Additions, Alterations or Improvements by Unit Owners” of the By-Laws
is appended hereto as Exhibit K.
The By-laws further require that, if the Board does not return
an answer to my written request (for a change in the outside of my condo)
within 30 days, the change proposed is automatically approved.
They did not answer me within 30 days. Therefore, in accordance with the By-laws, my request was automatically
approved. Quoting
from Article V, Section 13, second sentence: “…The Board of Directors shall have the obligation to answer any written request by a unit owner for approval of a proposed structural addition, alterations or improvement in such unit owner’s apartment unit, within thirty (30) days after such request, and failure to do so within the stipulated time shall constitute a consent by the Board of Directors to the proposed addition, alteration or improvement.” When
the Board of Directors of SBCW realized that they had not responded in time
to deny the window change, the Board of Directors of SBCW directed their
lawyer, Mr. Capdeville, to send me letters.
In the letters from Mr. Capdeville to me, he knowingly lied about the
facts, knowingly lied about the law, threatened to sue me, when he knew there
would be no basis for the suit. He
falsely advised me on the law. He
forbade me from communicating with board members, except through a lawyer,
which he demanded must communicate to the Board through him (Mr. Capdeville). Mr. Capdeville’s conduct is so blatantly in violation of the “Current Rules Requiring Truthfulness and Honesty in Lawyering” that this case should be used in Law schools as an example of what Lawyers should not do. I am communicating with the Deans of various Law Schools to have this case entered into the curriculum and published in Law Reviews. Here are the sequence of events: On
October 6, 2003, I requested in writing to change my window type. Mr. Capdeville, in one of his letters to
me, confirmed this fact. On
Dec 2, 2003, I received a letter Dated November 28, 2003 (Exhibit
A) on SBCW letterhead, unsigned, but typed at the bottom “Sincerely
yours, Board of Directors, Sapphire Bay Condominiums West”.
The letter contained the statement pertaining to my request for
a change in window type: “the Board of Directors has unanimously voted not to
give consent for such an installation at this time”. That
statement was untrue. I was
at the Board meeting where the subject was discussed. The subject of the window type change was discussed and tabled.
There was no vote. The official SBCW Board minutes, when they
were published for that meeting, reflected that there was no vote. See: Exhibit
B, third page, second paragraph, last sentence: “Following discussion, Steve Sokolow suggested that the Board review the matter in depth and let the owner know of its decision.” I
found out that the November 28, 2003 letter (Exhibit
A) had been typed by a new board member, Jack Donohoe.
He told me that he had been asked to type the letter (I believe
by Board President Steve Kerschner and Condo Manager, Frank Barry). Jack Donohoe said that, when he typed the letter, he wondered
why it contained the untrue statement about the vote, when there had
not been a vote. He had been
at the Board meeting, and he knew there had been no vote on the question. On
December 2, I sent a letter to the Board (Exhibit
C) informing them that I had taken steps to order the new window
types, since the By-laws required that I be given notice within 30 days,
and I was not given notice. Therefore my request is automatically approved. Mr. Capdeville
wrote me a letter dated December 3, 2003 (Exhibit
D). In that letter he says about the November
10, 2003 Board meeting: “ … the matter was discussed in depth at the meeting, and your request was unanimously denied”. That was
a lie, and he and every member of the SBCW Board knew it was a lie. There had been no vote on the matter. There were many people at the meeting other
than the Board members, who confirm that there was no vote, and the
official minutes of the meeting (Exhibit B)
confirm that there was no vote, no decision at all, much less a “unanimous
decision”. Mr. Capdeville
in his Exhibit D letter went on to say: “Therefore, you cannot now claim that you have already contracted to have your windows replaced as you did not receive written denial within thirty days.” Mr.
Capdeville knew that what he wrote to me was a lie. He knew that the vote did not take place at the November 10,
2003 meeting, and he knew that the November 10, 2003 meeting took place after
the thirty days had expired – one of his later letters admits that. On
December 11, 2003 (Exhibit E), I answered
Mr. Capdeville’s Exhibit D letter.
In my letter I disputed his claim that there had been a vote
at the November 10, 2003 meeting, and I told him that the 30 day time
limit had been exceeded by the date of the meeting. In that
letter, I told Mr. Capdeville: “Please don’t waste my time with any more lies and
inaccuracies”. He
continued to send me letters containing lies and inaccuracies, threats, and
demands. On January
8, 2004, Mr. Capdeville wrote me a letter (Exhibit
J) pertaining to the windows. In that
letter, he says: “I understand your position is that because you made a request and did not receive an answer from the Board within thirty days that you have the right to make such structural alteration. I can assure you that such is an erroneous position, one for which you shall be liable for damages if you foolishly proceed.” Then he
says: “I am assuming you are correct in your position that you
provided Frank Barry (the condo manager) with a copy of your written request
on October 6, 2003”. Then
Mr. Capdeville says that: “that meeting (November 10, 2003) would have been, for all practical purposes, almost exactly thirty days from the day the board would have been notified …”. It was 35 days – 5 days after the 30 days provided by the By-laws. The By-laws don’t say “almost exactly thirty days”. The By-laws say “thirty days”. And thirty days were over on November 5, 2003. Moreover there was no vote at the November 10, 2003 meeting, had it been held within the 30 day required time period. Mr.
Capdeville then says: “The minutes show that you did indeed receive an
answer”. That is
not true, and Mr. Capdeville knew it.
The minutes (Exhibit B) show that
there was no vote. The matter was tabled. Quoting
again from the minutes: “Following discussion, Steve Sokolow suggested that the Board review the matter in depth and let the owner know of its decision.” Mr.
Capdeville continues his untrue statements by saying: “Every Board member that is recorded as speaking at the
meeting spoke against your proposed
alterations.” That
statement is untrue and Mr. Capdeville knows it. A review of the minutes (Exhibit B)
shows that not one of the Board members was quoted as being against
the proposed alterations. Three board members are quoted pertaining
to the window alteration proposal.
None of the quotes are “against” the proposed alterations. The quotes directly from the minutes (Exhibit
B) are: “Steve Kerschner read the rule
concerning the issue and noted there are three situations permitted;
Jalousies, open or screened. He then
asked the Board if they were willing to consider new front façade to the
buildings.” “Bud Wood commented that if the
Board makes one exception to the rule, how could other changes be stopped.” “Steve Sokolow suggested that
the Board review the matter in depth and let the owner know of its decision.” None of these three statements is “against” the proposed alterations. Mr. Capdeville again misrepresented the facts. Mr.
Capdeville states: “Nonetheless, as a concession to you, the Board agreed
to look into it further and provide you with a final answer. You did not object to this added
concession.” This
statement is untrue. I did not, and
would not have made any concessions.
I had already received an automatic approval due to the passage of 30
days called for by the By-laws. In this
same letter, Mr. Capdeville states: “On November 28, 2003, you were sent written notice that
the Board, after additional consideration, had denied your request.” That is
untrue and he knows it. There was no
additional consideration. The
November 28, 2003 letter contained the statement: “the Board of Directors has unanimously voted not to
give consent for such an installation at this time”. As I
have stated previously, that statement in the November 28, 2003 letter was
untrue. The Board had tabled the
matter. There was no vote. The Board never reconvened to consider the
matter. Even if
the Board had voted to deny my request, it would have been too late, since
the thirty day time period for Board consideration and response had expired. Mr.
Capdeville ends his letter by saying:
“I feel confident in assuring you that no court of law or jury would find that the Board has not substantially complied with the requirements of Article V, Section 13. I am also confident --- and authorized to warn you – that should you foolishly go ahead with your proposed structural changing of your unit that you will be sued for damages. You will have a hard time, at that sorry juncture, convincing a court that you justifiably relied upon the Board members’ communications or lack thereof reasonably concluding that you had the right to alter your unit”. This
statement is not supported by the facts, and Mr. Capdeville knows it. He threatened me, backed up only by lies
and misrepresentations. What is
distressing, is that he probably uses these tactics with less sophisticated
people and gets away with it. Lawyers
like Mr. Capdeville are the reason that “Rules Requiring Truthfulness
and Honesty in Lawyering” exist.
These rules must be enforced rigorously to remove people like Mr.
Capdeville from the legal profession. There
were three emails sent between myself and the Board member and secretary,
Edith Rohrman. Exhibit
F is my first Email to Edith Rohrman.
Exhibit G is Edith Rohrman’s answer
to my first Email to her. Exhibit H is my return Email answering
Edith’s Email to me. In
these emails, I strongly criticize Ms Rohrman for her “backsliding” as
Secretary of the Board of SBCW. She
does not like the criticism, but it is my right to say what I think. She is wrong, and she should be told that
she is wrong. On
February 4, 2004, Mr. Capdeville wrote me a letter in which he said: “Please be advised that your emails are deemed
unprofessional, unfair, unjustified, insulting and amount to a vicious attack
upon the board.” I did
not necessarily intend to be professional.
I believe that my emails were very fair and justified. Mr. Capdeville does not say what parts of
my emails he thought were unfair and unjustified. His name calling is highly defamatory. I did not present a vicious attack on the
board, perhaps an attack on Ms Rohrman – one which was well justified for
reasons I clearlly explained by the words in my emails. Mr. Capdeville does not provide specific
criticism, he just calls me names. He
defames me without cause. Mr.
Capdeville goes on to say(Exhibit I): “Consequently, you are hereby advised to cease and desist from further communication with the individual board members, effective immediately, regarding the window issue. Specifically, you are hereby directed to cease and desist from communicating with Edith Rohrman at her email address since you were not authorized to utilize that address.” “Please be further advised that any further communications
from you regarding any board matter should be communicated by your attorney
to this office. Should you have a
problem with this directive and continue your diatribe and insulting address
toward the Board Members, we will advise our client to pursue other legal
remedies against you.” Mr. Capdeville does not have the right to tell me who I can write and whose email address I can use. He cannot tell me I must not communicate with the Condo Board except through my lawyer to him. The By-laws of the Condo provide a mechanism for communicating with the Board, and I am going to use those mechanisms. Mr. Capdeville thinks he has the right to remove my 1st Amendment rights. Mr. Capdeville is a disgrace to the Legal profession and a disgrace to the Bar Association of the Virgin Islands. Current Rules Requiring Truthfulness and Honesty in Lawyering: Rules broken by Mr.
Capdeville: Rule 4.1. In
the course of representing a client a lawyer shall not knowingly: (a)
Make
a false statement of material fact or law to a third person; or (b)
Fail
to disclose a material fact to a third person when disclosure is necessary to
avoid assisting a criminal or fraudulent act by a client, unless disclosure
is prohibited by Rule 1.6. Rule 4.4 In
representing a client, a lawyer shall not use means that have no substantial
purpose other than to embarrass, delay, or burden a third person, or use
methods of obtaining evidence that violate the legal rights of such a person. Rule 8.4. It is
professional misconduct for a lawyer to: (a)
Violate or attempt to violate the roles of professional
conduct, knowingly assist or induce another
to do so, through the acts of another; (c) Engage in conduct involving dishonesty,
fraud, deceit or misrepresentation; (d) Engage in conduct that is prejudicial
to the administration of Justice;
There
is no Attorney-Client Privilege between myself and Mr. Capdeville. George
R. Simpson |