In Re a Member of the Bar of the Supreme Court of Delaware: Martin ( 2014 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
In The Matter of a §
Member of the Bar of the §
of the Supreme Court of Delaware: §
§
JEFFREY K. MARTIN, ESQUIRE § No. 413, 2014
§
Respondent. §
Submitted: October 29, 2014
Decided: November 18, 2014
Before STRINE, Chief Justice; HOLLAND and RIDGELY, Justices.
Upon Review of the Report of the Board on Professional Responsibility.
SUSPENSION IMPOSED.
Charles Slanina, Esquire, Finger & Slanina, LLC, Hockessin, Delaware, for the
Respondent.
Jennifer-Kate Aaronson, Esquire, Chief Counsel, Wilmington, Delaware, for the
Office of the Disciplinary Counsel.
PER CURIAM:
I. INTRODUCTION
This is a lawyer disciplinary proceeding. A panel of the Board on
Professional Responsibility found that Jeffrey Martin violated Rule 5.5(a) and Rule
8.4(d) of the Delaware Lawyers’ Rules of Professional Conduct (DLRPC) by
assisting a suspended lawyer, Herb Feuerhake, in the unauthorized practice of law.
The Board did not find other rule violations charged by the Office of Disciplinary
Counsel (ODC). The Board recommended a private admonition.
Both the ODC and Martin have filed objections to the Board’s findings and
recommendation. The ODC contends that the Board’s findings are not supported
by substantial evidence. The ODC seeks Martin’s disbarment. Martin contends
that there was insufficient proof of any violations and that the matter should be
dismissed without any sanction. Alternatively, Martin asserts that a private
admonition is the appropriate sanction.
Based on the evidence presented, the record supports a finding that Martin
acted knowingly in assisting Feuerhake’s unauthorized practice of law and that
there is clear and convincing evidence to support the ODC’s arguments on appeal.
At the time he engaged in this misconduct, Martin was already on probation for
violating his ethical duties in the financial management of his law firm, violations
that were similar to other past violations. Given that reality, Martin had no excuse
for failing to take great care when deciding to engage a suspended lawyer to help
2
him with pending cases. Although we do not agree with the ODC that this
misconduct warrants disbarment, it does require at least the strong sanction of a
suspension.
II. FACTS AND PROCEDURAL HISTORY
A. Martin’s Relevant Legal Practice
Martin was admitted to the Delaware Bar in 1985. He worked for a number
of years at Elzufon, Austin & Drexler before he left to open his own practice in
1995. Feuerhake worked for Martin from 1998 until 2001 when Feuerhake left to
open his own solo practice. From 2004 to 2007, Martin worked for Margolis
Edelstein. He left that firm to form a partnership, Martin & Wilson P.A., with Tim
Wilson. Early in 2009, Wilson left the firm. Around the same time, one of
Martin’s employees contacted the ODC to report that Martin had not been paying
his taxes.1 An audit revealed that Martin’s books and records did not comply with
DLRPC Rule 1.15(b) and that he had failed to file or pay various taxes for certain
time periods. As a result, Martin agreed to a private admonition with conditions in
May 2009.2
During the same time period in 2009, Herb Feuerhake was also being
investigated by the ODC for disciplinary violations. As a result of the ongoing
1
In re Martin, 2011 WL 2473325, *1 (Del. June 22, 2011).
2
Id.
3
ODC investigation against Feuerhake, Martin agreed to act as Feuerhake’s practice
monitor. As practice monitor, Martin discussed Feuerhake’s active matters with
him, including pending deadlines and statutes of limitations. Feuerhake moved his
solo practice into Martin’s office space. Martin and Feuerhake also worked as co-
counsel on cases together, including representing the plaintiffs in two civil rights
cases filed in the United States District Court for the District of Delaware,
captioned as Lamb v. Taylor, C.A. No. 08-CV00324-GMS,3 and Barkes v. First
Correctional Medical Servs. Inc., C.A. No. 06-CV104-LPS. The cases were
handled on a contingent fee basis. Martin and Feuerhake had a standing agreement
that Martin would receive 60% of any fee and Feuerhake would receive 40%.
In November 2009, the ODC’s investigation of Feuerhake led to the filing of
a disciplinary complaint against him. Ultimately, on July 13, 2010, this Court
suspended Feuerhake from practicing law for a period of two years.4 Among the
conditions of Feuerhake’s suspension was a prohibition against performing,
directly or indirectly, any act that constituted the practice of law, including sharing
or receiving legal fees (except for fees earned before July 13, 2010). The Court
also expressly prohibited Feuerhake from having contact with clients (or
3
Throughout the record below, this case is referred to as “the Burns litigation.”
4
In re Feuerhake, 2010 WL 2757030, *4 (Del. July 13, 2010).
4
prospective clients) and witnesses (or prospective witnesses) when acting as a
paralegal or legal assistant under the supervision of another Delaware lawyer.
Shortly after Feuerhake’s suspension in July 2010, Martin himself was the
subject of another disciplinary complaint filed in August 2010. In that complaint,
Martin was charged with violating the conditions of his 2009 private admonition
by failing to pre-certify his 2010 certificate of compliance, by failing to promptly
pay certain taxes, by failing to properly maintain his law firm’s books and records,
by failing to adequately supervise his non-legal staff, and by filing false statements
with the Court in his certificate of compliance.5 The Board found that Martin had
committed most of the charged violations and recommended a public admonition
with a public probation.6 This Court adopted the Board’s recommendation. Martin
was publicly reprimanded and placed on probation for one year from June 23, 2011
to June 22, 2012.
In the summer of 2012, Carol Waldhauser of the Delaware Lawyers
Assistance Program contacted Martin and asked him if he would give another
suspended lawyer, Ron Poliquin,7 a job as a paralegal. Although he initially
5
See In re Martin, 2011 WL 2473325, *1 (Del. June 22, 2011).
6
As to his record-keeping obligations and his duty to supervise his staff, the Board noted that
Martin made “no effort to read [ ] Rule 1.15; and . . . apparently blithely went on, thinking his
books and records contained all necessary information. . . . There was apparently no basis for
him to have made that assumption.” See id. at *2.
7
See In re Poliquin, 49 A.3d 1115 (Del. 2012).
5
declined, Martin reconsidered after talking to Poliquin’s counsel and reviewing this
Court’s decision suspending Poliquin from the practice of law.
B. Martin’s Relationship with Feuerhake Post-Suspension
After this Court suspended Feuerhake in July 2009 and during the period
while Martin himself was on disciplinary probation, Feuerhake continued to work
in Martin’s law office as a paralegal.8 Martin testified that, although he knew
Feuerhake was suspended, he never read the Court’s suspension order. The record
reflects that Feuerhake researched and drafted briefs in several of Martin’s
employment cases. For those cases, Feuerhake would submit an invoice, and
Martin would pay him an hourly rate as a paralegal. Feuerhake also continued to
work as a paralegal on the Burns and the Barkes litigation, which he and Martin
had been co-counsel on prior to his suspension. For those two matters, Feuerhake
did not receive compensation on an hourly basis. According to an email Feuerhake
sent to Martin in September 2011, the two men were continuing, with respect to
those two cases, to operate in accordance with the fee agreement they had reached
when Feuerhake was licensed to practice law, namely that Martin would receive
60% of the fee and Feuerhake would receive 40%. For the Burns litigation, the
email reflected that David Facciolo would receive 20% of the fee because he had
8
In re Feuerhake, 89 A.2d 1058, 1059 (Del. 2014) (“During his suspension, Feuerhake worked
as a paralegal under the supervision of Jeffrey K. Martin, Esquire.”).
6
referred the Burns matter to Feuerhake. Therefore, Martin’s and Feuerhake’s
percentages were to be reduced to 48% and 32%, respectively.
While suspended, Feuerhake met with plaintiff Lamb regarding the Burns
litigation in Martin’s office and in court.9 Feuerhake also exchanged emails with
opposing counsel in that case. He attended a pretrial conference with Martin
before a United States District Court judge. During the conference and at Martin’s
request, Feuerhake addressed the judge, distinguished case law, explained the
relevance of anticipated trial testimony, lodged objections, and responded to
opposing counsel’s statements. When the litigation settled in April 2012, almost
two years after Feuerhake’s suspension, Martin gave Feuerhake $39,466,
representing his full 32% share of the contingent fee under the agreement they had
reached when Feuerhake was a licensed lawyer.
While suspended, Feuerhake also met and communicated with plaintiff
Barkes up to twenty different times to discuss the contents of briefs he wrote and
filings by opposing counsel. He attended four depositions in the case at which
Barkes was present, and he communicated with four different witnesses being
deposed.
As a result of this misconduct, the ODC filed charges against Feuerhake.
After the hearing in Feuerhake’s case, a panel of the Board recommended his
9
The facts about Feuerhake’s post-suspension work come from the Court’s disbarment decision
in In re Feuerhake, 89 A.2d at 1059-60.
7
disbarment. This Court adopted the Board’s recommendation and disbarred
Feuerhake on April 4, 2014.10
C. ODC’s Petition Against Martin
The ODC filed a six-count petition for discipline against Martin, alleging
that Martin violated: (i) Rule 3.4(c)11 by knowingly permitting Feuerhake, a
suspended lawyer, to practice law in violation of the Court’s suspension order; (ii)
Rule 5.3(a)12 by failing to supervise a nonlawyer assistant adequately and make
reasonable efforts to ensure that Feuerhake did not engage in the unauthorized
practice of law; (iii) Rule 5.4(a)13 by sharing legal fees with Feuerhake while he
was suspended; (iv) Rule 5.5(a)14 by assisting Feuerhake in the unauthorized
practice of law by allowing him to contact clients, appear in court, and engage in
other acts constituting the practice of law; (v) Rule 8.4(d)15 by engaging in conduct
prejudicial to the administration of justice by assisting Feuerhake’s unauthorized
10
Id. at 1063.
11
Rule 3.4(c) states that a lawyer shall not “knowingly disobey an obligation under the rules of a
tribunal.”
12
Rule 5.3(a) states that a managing lawyer of a firm “shall make reasonable efforts to ensure
that the firm has in effect measures giving reasonable assurance that [an employee or associate’s]
conduct is compatible with the professional obligations of the lawyer.”
13
Rule 5.4(a) states that a lawyer “shall not share legal fees with a nonlawyer.”
14
Rule 5.5(a) states that a lawyer “shall not practice law in a jurisdiction in violation of the
regulation of the legal profession in that jurisdiction, or assist another in doing so.”
15
Rule 8.4(d) states that a lawyer shall not engage “in conduct that is prejudicial to the
administration of justice.”
8
practice; and (vi) Rule 8.1(a)16 by knowingly making a false statement when he
denied supervising Feuerhake as a paralegal in his response to the ODC’s petition.
The ODC requested that Martin be disbarred.
D. Martin’s Response to the ODC’s Allegations
Martin denied nearly all of the ODC’s allegations. Martin acknowledged
that he knew that Feuerhake was suspended but stated that he never read the
suspension order and thus had no knowledge of the terms of Feuerhake’s
suspension.17 Martin denied ever supervising Feuerhake during his period of
suspension.18 He further asserted that the fee Feuerhake received as a result of the
settlement in the Burns litigation had been approved by the United States
Magistrate and was paid to Feuerhake on a quantum meruit basis for work he had
done on the case before his suspension, which was permitted under the Court’s
suspension order.
E. The Board’s Findings on the Charged Violations
After the violations hearing, which was separated from the hearing on
sanctions, the Board found:
As to Count 1, alleging that Martin knowingly permitted Feuerhake to
practice law in violation of this Court’s suspension order, the Board
16
Rule 8.1(a) states that, in connection with a disciplinary matter, a lawyer shall not “knowingly
make a false statement of material fact.”
17
See Ans. to ODC’s Petition at 4-5.
18
Id. at 1.
9
found no violation of Rule 3.4(c). The Board held, “Assuming
arguendo that the conditions of Mr. Feuerhake’s Suspension Order
constitute an obligation under the rules of a tribunal applicable to
[Martin], the Panel determined that ODC has not met its burden of
proof of establishing by clear and convincing evidence that [Martin]
knowingly disobeyed an obligation of the rules of a tribunal.”19 The
Board concluded that there was insufficient evidence to establish that
Martin knew or should have known of the conditions of Feuerhake’s
suspension because this Court’s suspension order “was not nearly as
readily publicly available as the Rules for [Martin] to access.”20
As to Count 2, alleging that Martin failed to adequately supervise a
non-lawyer assistant, the Board found no violation of Rule 5.3(a).
The Board stated, “It can hardly be said that Mr. Feuerhake’s
unauthorized practice of law was a result of [Martin’s] lack of
supervision when it occurred in [Martin’s] presence.”21
As to Count 3, alleging that Martin shared legal fees with a
nonlawyer, the Board found no violation of Rule 5.4. The Board
concluded that Feuerhake was entitled to his full share of the
contingent fee for the work he performed on the Burns litigation
before his suspension under a quantum meruit theory.22 The Board
found that Martin’s failure to pay Feuerhake for the two years he
spent working as a paralegal on the case did not “negate the fair value
of his pre-suspension services.”23
As to Count 4, alleging that Martin assisted Feuerhake in the
unauthorized practice of law, the Board concluded that Martin’s
admission that he requested the Federal District Court’s permission
for Feuerhake to speak during the pretrial conference in the Burns
matter established a violation of Rule 5.5(a).24 The Board did not find
19
Board’s Report at 10.
20
Id. at 12.
21
Id. at 13-14.
22
Id. at 14-15.
23
Id. at 15.
24
Id. at 15-16.
10
any other violations of Rule 5.5(a) arising from Feuerhake’s client
meetings and correspondence, attendance at court proceedings and
depositions, or signing pleadings on behalf of Martin.
As to Count 5, alleging that Martin engaged in conduct prejudicial to
the administration of justice, the Board concluded that its finding of a
violation of Rule 5.5(a) under Count 4 also established that Martin
had violated Rule 8.4(d).25
As to Count 6, alleging that Martin had made a false statement when
he denied supervising Feuerhake in his answer to the ODC’s petition,
the Board found no false statement of material fact and thus no
violation of Rule 8.1(a).26 The Board concluded that Martin was just
“drawing a distinction between supervising Mr. Feuerhake as
compared to Mr. Feuerhake’s work.”27
F. The Board’s Sanction Recommendation
The Board held a separate sanctions hearing in April 2014. At that hearing,
Martin presented the testimony of several witnesses, including Jeffrey Weiner,
Esquire, and Cassandra Hosler, a former client, who offered testimony about
Martin’s good character and reputation.28 Martin also testified. He expressed
remorse and also testified about serious medical issues that he had experienced
beginning in 2010.
25
Id. at 16.
26
The ODC does not challenge this finding on appeal.
27
Board’s Report at 16-17.
28
Sanctions Hearing Tr. at 5-18.
11
The Board reviewed the ABA Standards for Imposing Lawyer Sanctions29
and concluded that: (i) Martin had violated Rules 5.5(a) and 8.4(d); (ii) Martin
acted knowingly; and (iii) there was no actual injury caused by Martin’s
misconduct. As aggravating factors, the Board found that Martin has a prior
disciplinary record and has substantial experience in the practice of law. The
Board did not find, as the ODC argued, that Martin had a selfish motive or that
there was a pattern of misconduct. As mitigating factors, the Board found that
Martin had a cooperative attitude during the proceedings and also offered several
witnesses who testified to his good character and reputation. The Board did not
address Martin’s expressions of remorse or evidence of personal medical problems
as mitigating factors.
The Board concluded that a private admonition was the presumptive
sanction and that no adjustment to the sanction was required based on the
aggravating factors.
29
See ABA Standards for Imposing Lawyer Sanctions, available at
http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/correcte
d_standards_sanctions_may2012_wfootnotes.authcheckdam.pdf.
12
III. DISCUSSION
A. Standard of Review
We have the inherent and exclusive authority to discipline members of the
Delaware Bar.30 Although the panel’s recommendations are helpful, we are not
bound by them.31 We have an obligation to review the record independently and
determine whether there is substantial evidence to support the Board’s factual
findings.32 The Board’s conclusions of law are subject to de novo review.33
B. Parties’ Contentions on Appeal
The ODC contends that the Board erred in failing to find that Martin
knowingly violated a Court order when he allowed Feuerhake, while suspended, to
engage in the practice of law, meet with clients, attend depositions, exchange
correspondence with opposing counsel, share legal fees, and present arguments to a
federal judge. The ODC also argues that the Board erred in recommending a
private admonition. The ODC asks the Court to find that Martin violated Rules
3.4(c), 5.3(a), 5.4(a), 5.5(a), and 8.4(d) and to impose the sanction of disbarment.
Martin asserts that the Board erred in finding that he committed any
violations of the DLRPC. Martin contends that the Board failed to give due weight
30
In re Nadel, 82 A.3d 716, 719 (Del. 2013).
31
Id. at 720.
32
In re Reardon, 759 A.2d 568, 575 (Del. 2000).
33
In re Feuerhake, 89 A.3d 1058, 1060 (Del. 2014).
13
to the uncontroverted fact that Feuerhake misled Martin, his friend and former
colleague, about the restrictions of his suspension. Martin also objects to the
Board’s finding that he violated Rule 5.5(a) when he asked for the judge’s
permission for Feuerhake to speak at the pretrial conference. Martin argues that
Feuerhake acknowledged that he was attending the pretrial conference as a
paralegal and that the federal judge permitted and invited Feuerhake’s
participation, which the judge had authority to do. Martin also argues that the
Board erred in failing to address or include his expressions of remorse and his
personal medical problems as mitigating factors. He asks the Court to “mitigate
the presumptive sanction of no more than a private admonition to a lesser sanction
such as a dismissal with warning or a private probation.”34
C. Martin’s Knowledge of the Court’s Suspension Order
We must independently review the record to determine if there is clear and
convincing evidence to support a finding of knowing misconduct.35 Clear and
convincing evidence is evidence that produces an abiding conviction that the truth
of the contention is “highly probable.”36 Under the DLRPC, “knowing”
misconduct denotes “actual knowledge of the fact in question.”37 Because a person
34
Respondent’s Objections at 7.
35
In re Bailey, 821 A.2d 851, 863 (Del. 2003).
36
Id.
37
Del. Lawyers’ R. Prof. Conduct 1.0(f).
14
is presumed to intend the natural consequences of his or her actions, “knowing”
misconduct may be inferred from the circumstances.38 Moreover, in the
disciplinary context, we have equated “wilful ignorance” to “knowledge.”39
In this case, there is substantial evidence in the record to support a finding of
Martin’s knowing misconduct. First and foremost, Martin knew that Feuerhake
was suspended, yet he willingly allowed Feuerhake to move into his office space
and continue to work on cases for him as a paralegal without reading the Court’s
suspension order and determining the restrictions on Feuerhake’s ability to work
for Martin as a paralegal. A lawyer with Martin’s experience, especially one with
Martin’s own recent disciplinary history, would have known that the Court’s
suspension order was publicly available and should have consulted it, which is
precisely what Martin did when he was asked to hire another suspended lawyer,
Ron Poliquin, to work for him as a paralegal.
Martin knew or intentionally remained ignorant of this Court’s order
suspending Feuerhake from practicing law. His admitted intentional ignorance of
the Court’s order should not absolve him of responsibility for complying with its
terms.40 The Board’s reasoning that the Court’s suspension order was “not nearly
as readily publicly-available” as the Court’s rules has no basis in fact and does not
38
Id.
39
See, e.g., In re Nadel, 82 A.3d 716, 722 (Del. 2013).
40
Id.
15
preclude a finding that Martin knew or should have known of the terms of this
Court’s suspension order.41
D. Charges Established by Clear and Convincing Evidence
The record supports a finding by clear and convincing evidence that Martin
knew or should have known of the Court’s order suspending Feuerhake. The
record also establishes by clear and convincing evidence that Martin allowed
Feuerhake to attend depositions, to talk to and meet with clients, and to appear
before the District Court and allow him to argue case law. Accordingly, the record
establishes that Martin knowingly violated: (i) Rule 3.4(c) by assisting Feuerhake
to practice law in violation of the Court’s suspension order;42 (ii) Rule 5.5(a) by
assisting Feuerhake in engaging in the unauthorized practice of law; and (iii) Rule
8.4(d) by engaging in conduct prejudicial to the administration of justice by
assisting Feuerhake’s unauthorized practice.43
Furthermore, contrary to the Board’s finding, there is clear and convincing
evidence that Martin failed to supervise Feuerhake adequately in his role as a
paralegal. It is undisputed that Feuerhake worked in Martin’s office, even if
Feuerhake did not maintain regular office hours and was paid (when he was paid)
41
See In re Pelletier, 84 A.3d 960, 963 (Del. 2014) (quoting In re Nadel, 82 A.3d at 722).
42
See In re Kingsley, 2008 WL 2310289 (Del. June 4, 2008) (finding a knowing violation of
Rule 3.4(c) for assisting a Delaware accountant in violating a prior cease and desist order).
43
See In re Tos, 576 A.2d 607, 610 (Del. 1990) (holding that knowing violations of court
obligations are prejudicial to the administration of justice and violate Rule 8.4(d)).
16
as a subcontractor. Feuerhake shared Martin’s office space and conducted
research, drafted documents and made telephone calls while he was in Martin’s
office. Feuerhake participated in the pretrial conference at Martin’s request.
Feuerhake’s work was done on Martin’s behalf in Martin’s cases. Martin’s
contention that he only supervised Feuerhake’s work but did not supervise
Feuerhake is a distinction without a difference in this context.
In fact, to the extent Martin disclaims responsibility for supervising
Feuerhake, he is admitting to a violation, because that means he was enabling
Feuerhake to practice law in an unsupervised manner in violation of this Court’s
order. In other words, if Martin was not Feuerhake’s supervisor, no one was.
What is at issue is Feuerhake’s work on cases where Martin was the counsel of
record. Under the circumstances, because Martin knew or should have known of
the terms of the Court’s suspension order, the record supports a finding that Martin
violated Rule 5.3(a) by failing to supervise a nonlawyer assistant adequately.44
Finally, the Board erred in failing to find that Martin violated Rule 5.4(a) by
giving Feuerhake his full pre-suspension percentage of the contingency fee from
the settlement of the Burns litigation. As this Court noted in In re Feuerhake,
“Even though the Suspension Order prohibited Feuerhake from receiving any legal
fees following his suspension, the settlement payment was for work he performed
44
See In re Bailey, 821 A.2d 851 (Del. 2003).
17
both before and after his suspension. Rather than calculate the appropriate division
from the settlement, Feuerhake chose instead to take his full share because he
claimed that a more precise figure would have been too difficult to calculate and
because he was proud of the quality work he provided to his client.”45
Given this Court’s conclusion that the contingency fee paid to Feuerhake
was for work performed both before and after his suspension, the Board’s contrary
conclusion (which was reached almost four months after the decision in In re
Feuerhake was issued) that Feuerhake’s fee was only for his pre-suspension work
on a quantum meruit basis is unsupported. The record reflects that, after his
suspension, Feuerhake continued to work on the Burns matter for nearly two years.
Martin did not compensate Feuerhake as a paralegal on an hourly basis for any of
that work. Instead, the two men continued to operate under the same, pre-
suspension fee-sharing agreement that they had entered into when they were both
duly licensed lawyers. There is clear and convincing evidence that Martin’s
payment to Feuerhake of his full share of the settlement without an “appropriate
division”46 for pre- and post-suspension work was a violation of Rule 5.4(a).
45
In re Feuerhake, 89 A.3d 1058, 1060 (Del. 2014).
46
Id.
18
E. Appropriate Sanction
In determining the appropriate sanction in a lawyer disciplinary matter, the
Court traditionally follows the framework set forth in the American Bar
Association (ABA) Standards for Imposing Lawyer Sanctions (the “ABA
Standards”). 47 The ABA framework consists of four key factors to be considered
by the Court: (a) the ethical duty or duties violated; (b) the lawyer’s mental state;
(c) the extent of the actual or potential injury caused by the lawyer’s misconduct;
and (d) aggravating and mitigating factors.48
Martin’s knowing violations of Rules 3.4(c), 5.3(a), 5.4(a), 5.5(a), and 8.4(d)
in this case violated duties to his clients, to the legal system, and to the profession.
Although there was no resulting harm, Martin’s failure to abide by this Court’s
suspension order and his failure to adequately supervise Feuerhake, his non-lawyer
assistant, reflects a knowing disregard for his duties as a member of the Delaware
bar and as the supervising lawyer of his law practice, and created the potential for
injury.
The ODC argues that Martin’s knowing misconduct warrants disbarment. In
support of this argument, the ODC cites ABA Standard 6.21, which provides,
“Disbarment is generally appropriate when a lawyer knowingly violates a court
47
See In re Reardon, 759 A.2d 568, 575-76 (Del. 2000).
48
In re Lassen, 672 A.2d 988, 998 (Del. 1996).
19
order or rule with the intent to obtain a benefit for the lawyer or another, and
causes serious injury or potentially serious injury to a party, or causes serious or
potentially serious interference with a legal proceeding.” The ODC also cites ABA
Standard 7.1, which provides, “Disbarment is generally appropriate when a lawyer
knowingly engages in conduct that is a violation of a duty owed to the profession
with the intent to obtain a benefit for the lawyer or another, and causes serious or
potentially serious injury to a client, the public, or the legal system.” The ODC
argues that Martin allowed Feuerhake to engage in the practice of law to benefit
himself. Martin relied on Feuerhake’s legal expertise without compensating him
for it, and both men benefitted from the fee they shared following settlement of the
Burns litigation.
But, in our view, the record does not support a finding that Martin’s
violations, although serious, were egregious enough to warrant disbarment. Nor do
we believe there is clear and convincing evidence that Martin violated the rules
with the intent to benefit himself. From all of the testimony at the hearing, it
appears that Martin’s misconduct resulted from his intent to help a long-time friend
and former colleague who had fallen on hard times. Although Martin did
ultimately benefit from Feuerhake’s unauthorized practice of law, there is
insufficient evidence that Martin violated the rules with that intent.
20
Accordingly, ABA Standards 6.22 and 7.2 are more relevant to Martin’s
case. Standard 6.22 states, “Suspension is appropriate when a lawyer knowingly
violates a court order or rule, and there is injury or potential injury to a client or a
party, or interference or potential interference with a legal proceeding.” Standard
7.2 states, “Suspension is generally appropriate when a lawyer knowingly engages
in conduct that is a violation of a duty owed as a professional and causes injury or
potential injury to a client, the public, or the legal system.”
The ODC argues that several aggravating factors exist in this case: (i) prior
disciplinary history; (ii) selfish motive; (iii) pattern of misconduct; (iv) multiple
offenses; and (v) substantial experience in the practice of law.49 The Board found
evidence of only two aggravating factors: prior disciplinary history and substantial
experience. Although we do not think the record supports a finding of a selfish
motive or a pattern of misconduct, Martin was publicly reprimanded in 2011 and
placed on probation for one year for, among other reasons, failing to adequately
supervise his non-legal staff.50 He was serving that probation when he engaged in
the conduct leading to his current charges. Thus, the factors of prior disciplinary
history and substantial experience are properly considered aggravating. But
because this prior disciplinary matter involved a failure to supervise staff regarding
49
See ABA Standards 9.22.
50
See In re Martin, 2011 WL 2473325 (Del. June 22, 2011).
21
Martin’s books and records obligations, rather than the type of misconduct he
engaged in with Feuerhake, we do not believe it reflects a “pattern” of misconduct,
as the ODC argues.
As to mitigating factors, the Board found that Martin had a cooperative
attitude during the proceedings and presented unrebutted testimony of his good
character and reputation. Although not addressed by the Board, Martin also
presented unrebutted evidence of his remorse and of personal medical problems
that he was experiencing during the time period in question.
Even accepting all of these factors in mitigation, however, they do not
outweigh the aggravating factors in order to justify a lesser sanction than
suspension, given the seriousness of Martin’s misconduct. “Suspension is
generally appropriate when a lawyer knowingly engages in conduct that is a
violation of a duty owed as a professional and causes injury or potential injury to a
client, the public, or the legal system.”51 Importantly, the sanction of suspension is
also more consistent with our relevant prior precedent. In In re Barakat,52 we
suspended a licensed Delaware lawyer for two years after finding that he had
violated Rules 3.4(c) and 8.4(d), among other rules, by knowingly disobeying this
Court’s rule requiring him to maintain a bona fide office for the practice of law in
51
See In re Howard, 765 A.2d 39, 44 (Del. 2000).
52
2013 WL 6503320 (Del. Dec. 11, 2013).
22
Delaware. In In re Nadel53 and In re Pelletier,54 we suspended two non-Delaware
lawyers for one year in each case after finding that each had violated Rules
5.5(b)(1) and (b)(2) by knowingly engaging in the unauthorized practice of law.55
Considering all of the facts in this case, the Rules violated, the ABA
Standards, and our relevant prior cases, a sanction of a one year suspension is
warranted in Martin’s case. This one-year suspension will have an “appropriate,
but not unduly chilling, deterrent effect, given the range of authorized sanctions”56
under the Rules.
IV. CONCLUSION
For the reasons stated above, it is hereby ordered that Martin be disciplined
as follows:
1. Martin hereby is immediately suspended from the practice of law in
this State for a period of one year.
2. During the period of suspension, Martin must fully cooperate with the
ODC in its efforts to monitor his compliance with the terms of his suspension and
shall not: (a) have any contact directly or indirectly constituting the practice of law,
including the sharing or receipt of legal fees, except that Martin is entitled to any
53
82 A.3d 716 (Del. 2013).
54
84 A.3d 960 (Del. 2014).
55
See also In re Melvin, 807 A.2d 550 (Del. 2002) (knowing violation of a court order, among
other things, warranted an eighteen-month suspension).
56
Id. (quoting In re Howard, 765 A.2d 39, 46 (Del. 2000)).
23
legal fees earned prior to the date of this order; (b) share in any legal fees earned
for services by others during such period of suspension. Martin also shall be
prohibited from having any contact with clients or prospective clients or witnesses
or prospective witnesses when acting as a paralegal, legal assistant, or law clerk
under the supervision of a member of the Delaware Bar.
3. The ODC shall file a petition in the Court of Chancery for the
appointment of a Receiver for Martin's law practice pursuant to Rule 24 of the
Delaware Lawyers' Rules of Disciplinary Procedure; the Receiver shall provide
notice to clients, adverse parties, and others as required by Rule 23 of the Delaware
Lawyers' Rules of Disciplinary Procedure; and the Receiver shall make such
arrangements as may be necessary to protect the interests of any of Martin's clients
and the public.
4. Martin shall cooperate in all respects with the Receiver, including
providing him/her with all law office books and records.
5. Martin shall promptly pay the costs of the disciplinary proceedings in
accordance with the Delaware Lawyers' Rules of Disciplinary Procedure when
presented with a statement of costs by the ODC.
6. As reinstatement is not automatic, should Martin apply for
reinstatement, any such application must be made pursuant to Rule 22 of the
24
Delaware Lawyers' Rules of Disciplinary Procedure following the suspension
period.
7. This Opinion shall be disseminated by the ODC as provided in Rule
14 of the Delaware Lawyers' Rules of Disciplinary Procedure.
25