In the Matter of a Member of the Bar of the Supreme Court of Delaware ( 2022 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
IN THE MATTER OF A MEMBER §
OF THE BAR OF THE SUPREME § No. 58, 2022
COURT OF DELAWARE § Board Case No. 115327-B
§
MEGHAN M. KELLY, §
Respondent. §
Submitted: June 7, 2022
Decided: August 10, 2022
Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.
ORDER
PER CURIAM:
It appears to the Court that:
(1) This is an attorney disability proceeding. On February 18, 2022, a panel
of the Board on Professional Responsibility (“the Board”) filed its report and
recommendation (“the Report”) with this Court. The Report recommended that the
Court transfer the respondent, Meghan M. Kelly, Esquire, to disability inactive status
under Rule 19(b) of the Delaware Lawyers’ Rules of Disciplinary Procedure
(“DLRDP”). Kelly filed objections to the Report, ODC responded to the objections,
and Kelly filed a reply in support of her objections.1 For the reasons set forth below,
the Court accepts the Report and transfers Kelly to disability inactive status.
1
On the same day her reply was due, Kelly filed a motion to exceed the 5,000 word-count set by
the Court on March 29, 2022. Although the motion failed to identify the amount of additional
words requested and the reply is almost double the 5,000 word-count, the Court grants the motion.
Based on her misreading of Court of Chancery Rule 178B, which applies to guardianship matters
I. FACTS AND PROCEDURAL HISTORY
A. Kelly’s Litigation against then-President Trump
(2) Kelly was admitted to the Delaware Bar in 2007. After her admission
to the Bar, she worked for several law firms. Kelly has not been employed as a
lawyer since 2016, but has repeatedly expressed a desire to rejoin a law firm that
previously employed her.
(3) On September 21, 2020, Kelly filed a nearly 500-paragraph complaint
against then-President Donald Trump in the Court of Chancery. Kelly alleged that
Trump had violated the First Amendment by creating the illusion of government
sponsored religion, burdening her free exercise of religion, and adopting Executive
Order 13798. She also filed a motion to expedite and a motion for a temporary
restraining order. Kelly subsequently filed two amended complaints. On November
2, 2020, a Master in Chancery issued a final report recommending dismissal of the
complaint as legally frivolous under 10 Del. C. § 8803(c). Kelly filed exceptions,
which a Vice Chancellor overruled.2
(4) On April 21, 2021, Kelly filed a notice of appeal in this Court.3 After
Kelly filed her opening brief, this Court affirmed, sua sponte, the Court of
not at issue here, Kelly also filed a motion to be excused from notarization and affirmation
requirements in all Delaware courts. That motion is denied.
2
Kelly v. Trump, 2021 WL 1175423 (Del. Ch. Mar. 26, 2021).
3
With the notice of appeal, Kelly included more than seventy documents she had filed in the
Court of Chancery. The Clerk’s Office advised Kelly that the documents would not be docketed
as the Court of Chancery was responsible for transmitting the record to this Court under Supreme
2
Chancery’s judgment under Supreme Court Rule 25(c). 4 Kelly filed a motion for
reargument, which was denied. On November 1, 2021, the United States Supreme
Court denied Kelly’s petition for a writ of certiorari.
B. The ODC and Board Proceedings
(5) On August 23, 2021, ODC informed Kelly that the contents of her
filings in the Trump action raised serious concerns regarding her mental capacity
and fitness to practice law. Based on these concerns, ODC asked Kelly to voluntarily
submit to a mental health examination to determine her mental capacity and fitness
to practice law. ODC advised that if Kelly if did not undergo the examination
scheduled for September 7, 2021, ODC would petition the Board to order such an
examination. In response, Kelly ordered ODC to stop contacting her and stated that
she would not undergo a mental health evaluation because it was against her
religious beliefs.
(6) After obtaining the approval of the Preliminary Review Committee
(“PRC”) on November 3, 2021, ODC filed a petition on November 5, 2021 to
transfer Kelly to disability inactive status under DLRDP 19(c). The petition alleged
that the contents of Kelly’s filings in this Court and the Court of Chancery lacked
focus and clarity, were objectively illogical, relied on non-legal sources, including
Court Rule 9(b).
4
Kelly v. Trump, 2021 WL 2836635 (Del. July 7, 2021).
3
the Bible, instead of appropriate legal authority, and reflected an apparent inability
to make rational legal arguments. ODC asked the Board to order Kelly to submit to
a mental health examination, to hold a hearing to make findings, and to recommend
that this Court transfer Kelly to disability inactive status.
(7) On November 30, 2021, Kelly filed her answer, defenses, and
objections to the petition. The answer had numerous exhibits, including copies of
books and articles she had drafted for impeachment of the president.
(8) On December 10, 2021, the Administrative Assistant to the Board
scheduled a hearing on ODC’s petition for January 13, 2022. On December 13,
2021, as requested by ODC and objected to by Kelly, this Court appointed counsel
(“Counsel”) to represent Kelly under DLRDP 19(c), which provides that “[i]f the
respondent is not represented by counsel, the Court shall appoint counsel for the
respondent.” The Court appointed Counsel at no cost to Kelly. Kelly subsequently
submitted letters and motions that, among other things, continued to object to the
appointment of Counsel and asserted that she needed time to prepare discovery
before the hearing.
(9) After Kelly repeatedly objected to Counsel’s appointment, asserted that
she wished to represent herself, shared Counsel’s advice with multiple individuals,
and purported to fire Counsel, Counsel filed a motion to remove counsel with the
4
Court. On December 30, 2021, the Court granted the motion and permitted Kelly to
represent herself.
(10) On January 4, 2022 and January 10, 2022, Kelly filed objections to the
proceeding. She also sent requests for postponement of the hearing, sometimes
based on her objections to the proceeding and need for additional time to prepare a
defense and sometimes based on a physical illness she said she was suffering. ODC
was amenable to a one-week extension of the hearing based on Kelly’s
representations that she was suffering a physical illness.
(11) On January 11, 2022 Kelly filed emergency objections and an
emergency motion to postpone the hearing with the Board and this Court. That same
day this Court denied the motion, ruling that the hearing panel chair decided
scheduling matters and that the decision of the panel chair or panel could not be
appealed before submission of the panel’s report and recommendation. The Court
advised Kelly that when the panel submitted its final report and recommendation,
she would have the opportunity to object to the report as well as any prior rulings of
the panel chair. The panel chair granted Kelly’s motion in part, postponing the
hearing until January 21, 2022.
(12) Notwithstanding this Court’s January 11th order, Kelly appealed the
postponement order to this Court. The Court denied the motion for the reasons stated
in its January 11th order, and advised that it would not rule on any further frivolous
5
motions or appeals Kelly filed before the panel submitted its final report and
recommendation. On January 13, 2022, ODC filed its opposition to Kelly’s January
11th filings.
(13) On January 15, 2022, Kelly filed a motion for emergency relief with
the Board seeking additional time to obtain discovery and prepare a defense. She
asserted similar claims in emails sent on January 18th and January 19th. The Board
panel denied Kelly’s request for another continuance of the hearing date.
(14) On January 21, 2022, the Board panel held the hearing via Zoom. The
Board panel heard Kelly’s testimony as well as the arguments of ODC and Kelly.
At the end of the hearing, ODC asked the Board panel to order Kelly to undergo a
mental health evaluation by a qualified mental health expert. Kelly objected to a
mental health evaluation as against her religious beliefs. She also objected to the
proceedings as violating her constitutional rights.
(15) After the hearing, Kelly filed motions for a protective order against a
mental health examination. She also submitted corrections to the transcript of the
January 21st hearing. On February 17, 2022, the Board panel issued the Report. In
the Report, the Board panel recommended that Kelly be transferred to disability
inactive status until she submits to a mental health evaluation conducted by a
qualified expert who certifies her mental fitness for the practice of law.
6
C. Kelly’s Appeal to this Court
(16) On February 18, 2022, the Report was docketed in this Court. The
Court Clerk advised the parties that any objections to the report were due on March
10, 2022. On March 1, 2022, the Court granted Kelly’s motion for an extension of
time to file objections to the Report. On March 21, 2022, Kelly filed 136 pages of
objections and a 24-page memorandum in support of her objections. She also filed
more than 2,000 pages of exhibits. On April 21, 2022, ODC responded to the
objections. On June 7, 2022, after receiving a fifteen-day extension, Kelly filed her
reply.
II. DISCUSSION
A. Standard of Review
(17) This Court is not bound by the Board panel’s recommendation, and
must independently review the Board panel’s findings of fact to determine whether
the record contains substantial evidence to support those findings.5 We review the
Board panel’s conclusions of law de novo.6
(18) DLRDP 19 governs disability proceedings. The relevant portions of
that rule provide:
Proceedings to Determine Incapacity. Information relating to a
lawyer’s physical or mental condition which adversely affects the
lawyer’s ability to practice law shall be investigated by the ODC. If
5
In re Abbott, 925 A.2d 482, 484 (Del. 2007).
6
Id.7
there are reasonable grounds to believe the interests of respondent’s
clients or the public are endangered, such information shall be the
subject of formal proceedings to determine whether the respondent
shall be transferred to disability inactive status. The procedures and
hearings shall be conducted in the same manner as disciplinary
proceedings. The Board may take or direct whatever action it deems
necessary or proper to determine whether the respondent is so
incapacitated, including the examination of the respondent by qualified
medical experts at the respondent’s expense. If, after reviewing the
recommendation of the Board and upon due consideration of the matter,
the Court concludes that the respondent is incapacitated from
continuing to practice law, it shall enter an order transferring the
respondent to disability inactive status for an indefinite period and until
further order of the Court. Any pending disciplinary proceedings
against the respondent shall be held in abeyance.
The Board shall provide for such notice to the respondent of the
proceedings in the matter as it deems proper and advisable. If the
respondent is not represented by counsel, the Court shall appoint
counsel for the respondent.7
The standard of proof for a transfer to disability inactive status is clear and
convincing evidence.8
B. Kelly is Incapacitated from Continuing to Practice Law
(19) Having considered the Board panel’s recommendation, the parties’
arguments, and the record, we must find that Kelly is incapacitated from
continuing to practice law and should be transferred to disability inactive status.
7
DLRDP 19(c)
8
Id. 15(c).
8
We reach this conclusion for somewhat different reasons than those articulated
by the Board panel.9
(20) As the Board panel recognized, admission to the Delaware Bar
requires attorneys to take an oath or affirmation to “support the Constitution of
the United States and the Constitution of the State of Delaware” and to
“behave…in the office an Attorney within the Courts” to the best of their
“learning and ability and with all good fidelity as well to the Court as to the
client.”10 Delaware attorneys must also comply with the Delaware Lawyers’
Rules of Professional Conduct (“DLRPC”), which require attorneys to represent
clients competently,11 not undertake a representation if their physical or mental
condition materially impairs their ability to represent a client,12 and refrain from
engaging in conduct prejudicial to the administration of the justice.13 The legal
“profession holds out to the public all its members in good standing as being
competent, honest and devoted to their clients’ interests.” 14
9
The Board concluded that Kelly was “unable to separate her individual political and religious
pursuits from her legal practice and from the duties she owes to the Court and the professional
practice within this State as a licensed attorney.” Report at 5.
10
Del. Supr. R. 54. See also 10 Del. C. § 1907 (requiring attorneys to take oath upon admission
to the Delaware Bar).
11
DLRPC 1.1 (“Competent representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.”).
12
Id. 1.16(a)(2).
13
Id. 8.4(d).
14
In re Member of Bar, 257 A.2d 382, 383 (Del. 1969).
9
(21) The special responsibilities of attorneys are not limited to their
representation of clients. As set forth in the DLRPC Preamble, “[a] lawyer, as a
member of the legal profession, is a representative of clients, an officer of the
legal system and a public citizen having special responsibility for the quality of
justice.”15 “Lawyers play a vital role in preservation of society….fulfillment of
this role requires an understanding by lawyers of their relationship to our legal
system.” 16
(22) Many of Kelly’s submissions in the Trump action and these
proceedings were confusing and unfocused, irrelevant to the issues at hand,
demonstrated a lack of understanding of the role of courts, and were non-
compliant with court rules. For example, in her motion for a page and word
count extension under Supreme Court Rule 14(d) in the Trump action, Kelly
failed to specify the number of additional pages she needed, but did include the
following in a footnote:
I did not know how bad the world was until I ran for office. We do not
have a free market. We have a manipulated marked, a slave market,
where the government gives grants to entities, charities, not for profits,
businesses and charities, entities without hearts (“beasts”), who try to
get as much as they can for as little as they can to serve their life line,
the bottom line, at the cost of exploiting consumers, the environment,
workers and the world to create a manufactured market in exchange
with bought loyalty, or the potential loyalty, to leaders who feed their
greed.
15
DLRPC Preamble [1].
16
Id. [13].
10
Adam Smith’s theories, the alleged founder of capitalism, is not based
on a free market. It is on a manipulated slave market, based on the mark
of children of the devil, that humans will behave based on getting as
much as they can for as little as they can, supply and demand, without
regard, love, which is concern, for others unless it affects them….
In a temporary trial to Westlaw, I glimpsed at global agreements relating
to the World Bank. I discovered we do not have a free market at a global
level….The solution is just laws, just policies, and justice in the courts,
not more money. Justice in the courts legislating love, by concern, or
requiring people and entities to care for others, or get corrected, will not
only prevent harm here, but will guide people to the way of eternal life,
should they remain in love. Are the eyes of the courts darkened on
money, merriment or material gain? Matthew 6:21-33. Or do the courts
look at people with love, protecting even those they are protecting,
willing to break away from laws drafted by beasts without hearts,
entities, who look at cold hard cash, play money to buy favors in their
manipulated economy, to look at people with love, rendering true justice
per Jesus. Matthew 23:23….Courts must not blindly follow laws that
reward evil as good. Courts must seek to decrease temptations to sin,
protecting the people from the enemy, temptations to sin, by using the
Constitutional limits to render unjust decrees, and policies
unconstitutional lawlessness….
Creating a different economic model is not the solution, such as
communism….Since laws, per se are written to serve the bottom line,
at the cost of unconcern, absence of love for humanity, this Court can
teach the entities that control the world, LLCs, organizations who buy
leaders by tempting them to whored loyalty by donations and support
in an unholy, bought or bartered for, not free, but whored union of
government-private interest greed, not love, to adhere to the rule of law,
not the lawless reign of lusts. The courts and the law makers should
teach love of humanity, not the mark of the devil, exploitation of
humanity, to serve your own family or interest. This court must tame
the beasts with constitutional limits, by taming those who are enslaved
by the desires the beasts tempt lawmakers and the executive branch
with, the government. The law makers are blinded by their desire to
keep their powerful seats. So is the executive branch. Your seats are
not gained by popularity, but by impartiality to enable you to check the
11
other two branches with the loving heavy hand of justice, guiding them
to do right, never with revenge. Instead with love and correction to
prevent their condemnation in hell, and harm to victims of their sins
here. My hope is in the courts. Amos 5:15. On a side note, I am sad
dead men like Adam Smith and B.F. Skinner are misleading people to
hell past their fleeting lives. Their lies, accepted as truth, prevent many
from being saved by truth of love.17
(23) Not only did the footnote exceed the 1,200 word count for motions,18 it
was irrelevant to Kelly’s request for an extension. Attorneys and non-attorneys
regularly file requests for page-extensions that specify the additional words or pages
sought and that fall well-within the 1,200 word count or four-page limit for motions.
Kelly was unable to do so.
(24) With her answer to the disability petition, Kelly included a number of
irrelevant exhibits, including almost two-hundred pages of The Fourth Industrial
Revolution by Klaus Schwab, more than two-hundred pages of COVID-19: The
Great Reset by Klaus Schwab and Thierry Malleret, and approximately sixty pages
of The Creature from Jekyll Island: A Second Look at the Federal Reserve by G.
Edward Griffin.19 She submitted these books again with her objections to the
Report in this Court.20 The subject matter of these books has no relevance to the
proceedings.
17
Kelly v. Trump, No. 119, 2021 (Del. June 4, 2021), D.I. 28 at n.1.
18
Del. Supr. Ct. 30(d).
19
Meghan M. Kelly’s Answer, Defenses, and Objections, Exs. 16, 17, 18.
20
Respondent Meghan Kelly’s Objections to Report and Recommendation, Ex. K.
12
(25) Kelly also sent ODC or copied ODC on strange emails. On December
21, 2021, for example, Kelly copied ODC and the Delaware U.S. Attorney on an
email requesting a replacement Bar identification card from the Clerk of this
Court.21 Kelly said she needed a replacement card because she had mailed her
original card to her former employer in expectation of working again as a real estate
attorney.22 On January 5, 2022, Kelly emailed ODC, the Board and Court
Administrator, and the Court Clerk the following:
I am feeling worse today. I am losing my voice, very dehydrated, and
am experiencing more unpleasant symptoms. Per the message and
pictures below, it appears I smell like death. I have been getting
attacked by buzzards and I am seeking the state’s help.
Should anything happen to me, and I am unable to get back to you I
apologize.
Thank you for your understanding during this global pandemic and time
of uncertainty.23
With the email, Kelly forwarded photographs of birds outside her house and an email
she had sent to various government officials pleading for help with the birds.24 In
another January 5, 2022 email to ODC, Kelly expressed various views, including her
belief that “people go to hell for fundraising and organized charity should they not
21
ODC Hearing Exhibits Ex. 7, Email dated December 21, 2021 at 10:48 p.m.
22
Id.23
Id. Ex. 8, Email dated January 5, 2022 at 8:40 a.m.
24
Id. Ex. 8, Email dated January 5, 2022 at 8:12 a.m. (“They have been watching me for some
time before they made attacks, swooping in on me, with quick escapes. I almost didn’t make it.
The claws were so close.”).
13
repent of such wickedness,” libel laws “protect serving what I believe is the beast
spoken of in Revelations, business greed, at the cost of killing, stealing and
destroying people,” and that “[t]here is a plan to harm humanity to control humanity
by eliminating the governments’ power to govern, and the eventual elimination of
our government.” 25
(26) Kelly’s concerning behavior continued throughout the hearing. As the
Board panel discussed in its Report, Kelly struggled to log into the hearing and
provided “confused and wandering” responses to questions concerning her computer
problems.26 Kelly expressed suspicion that someone was hacking into her computer
because “I had contacted so many people who are in power and I had sued the
president.” 27
(27) During her presentation, Kelly read aloud portions of her filings and
recited her religious, political, and economic beliefs.28 Despite at least two requests
from the Board panel, Kelly read aloud from her filings instead of explaining how
the filings supported her position that she was competent to practice law.29 The
excerpt below is typical of the unfocused and irrelevant nature of much of Kelly’s
presentation:
25
Id. Ex. 9, Email dated January 5, 2022 at 12:57 p.m.
26
Report at 5. See also Transcript of January 21, 2022 Hearing (hereinafter referred to as “Hearing
Tr.”) at 13-25.
27
Hearing Tr. 64.
28
Id. at 99-173.
29
Id. at 104, 144-45.
14
In this book you are going to see at the back of the book they talk about
tracking people sort of like the green pass and the clear pass which were
created before the pandemic. When I had my computer before it was
broken, I was able to look up things. They also talked about biomedical
experiments on people and things that they intended to do which
weren’t to care for people, they were to control people and to care for
profit.
So, if you look at The Fourth Industrial Revolution by Klaus Schwab it
sort of outlines his plans and weird stuff like mind control. I don’t
believe our minds can be controlled, not by biology despite
behaviorists’ theories, not by chemistry despite people saying
chemicals can change your state of mind or your mind, but I believe we
have free will, the ability to independently think, to care, to know, to
love and the deception is that they had alluded to controlling the mind,
battlefield of the mind, is to deceive people to think that they don’t have
a choice, that they can’t think independently to choose to care, to know,
to love one another because I believe the command by God is to love
God foremost and love one another as yourself. 30
(28) There was substantial evidence to support the Board panel’s factual
findings. Kelly’s inability to make to make cogent legal arguments, present relevant
evidence, or identify relevant legal authority is painfully clear from the record.
Given the record and Kelly’s repeated objections to a mental health exam, the Board
panel’s election not to order Kelly to undergo a mental health exam, as permitted by
Rule 19(c) and requested by ODC, was reasonable. It is plain from Kelly’s conduct
that a physical or mental condition is adversely impacting her ability to practice law.
Although Kelly is not presently representing any clients, she has repeatedly
30
Id. at 122-23; List of Corrections to Hearing dated January 21, 2022.
15
expressed a desire to rejoin a former law firm employer.31 Kelly’s lack of
competence to practice law endangers prospective clients, the public, and the orderly
administration of justice. ODC satisfied its burden of demonstrating by clear and
convincing evidence that Kelly is incapacitated from continuing to practice law and
should be transferred to disability inactive status.
C. Kelly’s Objections Lack Merit
(29) Kelly’s objections to the Report may be summarized as follows: (i) this
Court lacks subject matter jurisdiction over the proceedings; (ii) these proceedings
violate her right to due process and equal protection under the Fourteenth
Amendment of the United States Constitution; and (iii) these proceedings violate her
right to free exercise of religion and free speech under the First Amendment of the
United States Constitution. Kelly’s objections are without merit.
1. This Court has subject matter jurisdiction
(30) Contrary to Kelly’s contentions, the disability proceeding was not
subject to dismissal for lack of subject matter jurisdiction. This Court “alone, has
sole and exclusive responsibility over all matters affecting governance of the Bar.”32
31
See, e.g., supra n.22; Hearing Tr. 73-83.
32
In re Appeal of Infotechnology, Inc., 582 A.2d 215, 216–17 (Del. 1990). See also In re Mekler,
669 A.2d 655, 664 (Del. 1995) (“It is the exclusive responsibility of this Court to supervise,
regulate and discipline members of the Delaware Bar.”); In re Green, 464 A.2d 881, 885 (Del.
1983) (describing this authority as “based on the concept, taken from England, that the courts
possess the exclusive right to govern the practice of law”); Member of the Bar, 257 A.2d at 383(“The authority, as well as the duty, to establish the Bar and to maintain its standards exists
inherently in this Court as the highest court of the State, independent of any statutory grant of
16
This authority is necessary “for the proper administration of justice, which can be
achieved only if the procedures and practices of the courts are fair and reasonable,
and the officers of the court, the lawyers, are competent and ethical.” 33 Under its
authority, the Court maintains “appropriate standards of conduct for all lawyers
subject to its jurisdiction” and “dispose[s] of individual cases of
lawyer…disability.”34
(31) Kelly contends that this Court lacks subject matter jurisdiction based
primarily35 on her mistaken and unfounded belief that the Chief Justice caused ODC,
the Delaware Lawyer Assistance Program (“DE-LAP”), and a Court of Common
Pleas judge to “threaten,” “harass,” and “attack[]” her after she requested that this
Court waive annual registration fees for Delaware attorneys in early 2021.36 None
of the panel members referred Kelly to ODC or DE-LAP or communicated with the
Court of Common Pleas Judge about Kelly. To the extent Kelly suggests this Court
loses subject matter jurisdiction over disability or disciplinary proceedings any time
a member refers an attorney to ODC or DE-LAP, this is contrary to the Court’s
authority, although there does exist in our Code such authority.”).
33
Member of the Bar, 257 A.2d at 383.
34
DLRDP 1(a).
35
She also seems to argue that the Court’s violation of her constitutional rights deprived it of
subject matter jurisdiction. We address the constitutional claims later in this order.
36
Memorandum of Law ¶¶ 6-14. Kelly also contends that these entities and individuals, among
others, interfered with her case against Trump, and pressured her to drop the case. As set forth in
the decisions of this Court and the Court of Chancery, the dismissal of Kelly’s case resulted from
her own pleading deficiencies, not the interference of third parties. Kelly, 2021 WL 2836635;
Kelly, 2021 WL 1175423.
17
exclusive jurisdiction over such matters37 and the duties of judicial officers under
the Delaware Judges’ Code of Judicial Conduct.38
2. There were no violations of Kelly’s right to due process or equal
protection
(32) Kelly’s claims of due process and equal protection violations are
without merit. Proceedings to determine attorney incapacity, which are conducted
in the same manner as disciplinary proceedings,39 contain extensive procedural due
process protections for respondents.40 These protections include: (i) notice of
ODC’s intent to present a petition to transfer to disability inactive status to the PRC
and the opportunity to submit a written statement for the PRC to consider;41 (ii) the
PRC’s determination of whether there is probable cause to support the petition;42
(iii) if the petition is approved by the PRC, the opportunity to file an answer to the
petition;43 (iv) if the respondent is unrepresented, the appointment of counsel;44 (v)
37
See supra ¶ 30.
38
Del. Judges’ Code of Judicial Conduct R. 2.14 (“A judge, having a reasonable belief that the
performance of a lawyer or another judge is impaired by drugs or alcohol, or by a mental,
emotional, or physical condition, should take appropriate action, which may include a confidential
referral to a lawyer or judicial assistance program.”); Id. 2.15 (“A judge should initiate appropriate
action when the judge becomes aware of reliable evidence indicating the likelihood of
unprofessional conduct by a judge or lawyer.”).
39
DLRDP 19(c).
40
Abbott v. State Public Integrity Comm’n, 2019 WL 937184, at *5 (Del. Feb. 25, 2019)
(recognizing that the “process for attorney discipline has extensive procedural due process
protections” which allow “the [respondent] ability to appeal any determination of the [Board] to
this Court’).
41
DLRDP 9(b)(1).
42
Id. 9(b)(3).
43
Id. 9(d).
44
Id. 19(c).
18
the ability to compel by subpoena the production of documents or witness
testimony;45 (vi) a Board hearing that is recorded;46 and (vii) the opportunity to
submit objections to the Board’s report and review of the Board’s report and
recommendation by this Court.47
(33) Kelly contends that she received untimely notice of the hearing date
and was denied a fair opportunity to defend herself. This argument is without merit.
As to the hearing notice, the Board Administrative Assistant issued a notice on
December 10, 2021 scheduling the hearing for January 13, 2022. Kelly says she did
not receive the notice by mail until December 24, 2021, less than the twenty days
before the original hearing date, but notice is calculated from the date of mailing.48
In addition, Kelly’s filings reflect that she was aware of the hearing date by
December 17, 2021.49 Kelly did not receive insufficient notice of the hearing.
(34) As to Kelly’s claims that she had insufficient time to conduct research,
perform discovery, and subpoena witnesses to support her defense, ODC filed the
petition to transfer her to disability inactive status on November 5, 2021. The
45
Id. 12(b)(2).
46
Id. 9(d)(4).
47
Id. 9(e); 19(c).
48
Id. 11(b) (stating that unless otherwise provided service should be made in accordance with the
Superior Court Rules of Civil Procedure); Del. Super. Ct. Civ. R. 5(b). In disability matters, the
Board provides notice to the respondent in the manner it deems proper and advisable. DLRDP
19(c).
49
December 18, 2021 Letter Regarding, Respondent is entitled to Discovery/Reconsider on
Counsel.
19
hearing was initially scheduled for January 13, 2022 and postponed, at Kelly’s
request, until January 21, 2022. During that time, Kelly prepared and filed numerous
motions in this proceeding. She had more than sufficient time to prepare a defense.
Kelly repeatedly advised of her need for discovery, but failed to seek any discovery.
Under DLRDP 12(a)(2), a respondent may request that the Court Clerk prepare
subpoenas to compel the testimony of witnesses or the production of pertinent
documents. Kelly never did so.
(35) Kelly also challenges the Court’s appointment of counsel to represent
her. Procedural due process claims involving counsel usually involve the absence
or failure to appoint counsel, not the appointment of counsel. 50 To the extent Kelly’s
objections to the appointment of counsel constitute a claim that this appointment
violated her right to self-representation under the Sixth Amendment, this argument
is without merit. The Court appointed counsel to represent Kelly in accordance with
DLRDP 19(c), which provides that the Court “shall appoint counsel” for a
respondent who is not represented by counsel in a disability proceeding. After
Kelly’s vigorous objections and Counsel moved to withdraw, the Court granted the
motion to withdraw and allowed Kelly to represent herself. Thus, even assuming
50
See, e.g., Watson v. Div. of Fam. Servs., 813 A.2d 1101, 1112-13 (Del. 2002) (finding violation
of procedural due process where attorney was not appointed to represent a parent at the inception
of dependency and neglect proceedings).
20
Kelly had a Sixth Amendment right to self-representation in the disability
proceeding, she was not deprived of that right.
(36) As to her substantive due process claim, Kelly must show she is being
deprived of a property interest that is fundamental under the United States
Constitution and that the deprivation is arbitrary, irrational, tainted by improper
motive, or through conduct that shocks conscience.51 Even assuming Kelly could
show deprivation of a fundamental right here,52 she has not shown that her placement
on disability inactive status is arbitrary, irrational, tainted by improper motive, or
through conduct that shocks the conscience. She offers nothing to suggest that the
actions of ODC or the Board were motivated by anything other than reasonable
concern in response to Kelly’s troubling conduct.
(37) Similarly, Kelly’s vindictive prosecution claim is without merit. A
vindictive prosecution arises from “specific animus or ill will.” 53 Kelly has not
shown that ODC’s petition resulted from any animus or ill will toward her.
51
Nicholas v. Pa. State Univ., 227 F.3d 133, 139-40 (3d Cir. 2000).
52
C.f. Schware v. Board of Bar Examiners of State of N.M., 353 U.S. 232, 239 (1957) (holding
that a state cannot exclude a person from the practice of law for reasons that violate the Due Process
or Equal Protection clauses, but “can require high standards of qualification, such as good moral
character or proficiency in its law, before it admits an applicant to the bar” as long as the
qualifications “have a rational connection with the applicant’s fitness or capacity to practice law”);
Edelstein v. Wilentz, 812 F.2d 128, 132 (3d Cir. 1987) (“We have previously held that the right to
practice law is not a fundamental right for purposes of due process or equal protection analysis.”).
53
State v. Wharton, 1991 WL 138417, at *10-11 (Del. Super. Ct. June 3, 1991).
21
(38) The basis of Kelly’s claim of an equal protection violation is unclear.
The Fourteenth Amendment provides that no state shall “deny to any person within
its jurisdiction the equal protection of the laws.”54 To the extent Kelly argues that
her political or religious beliefs led to selective prosecution by ODC, this implicates
equal protection.55 To state a claim of selective prosecution, Kelly must show ODC
had: (i) a policy to prosecute that had a discriminatory effect; and (ii) was motivated
by a discriminatory purpose.56 In arguing that ODC prosecuted her for her political
or religious beliefs, Kelly ignores that ODC’s petition was based on her unfocused
and illogical filings, reliance on non-legal sources, including (but not limited to) the
Bible, and inability to make rational legal arguments. Kelly has not shown that ODC
had a policy with discriminatory effect or was motivated by a discriminatory
purpose.
3. There were no violations of Kelly’s First Amendment rights
(39) The First Amendment protects an individual’s free speech and free
exercise of religion.57 A lawyer’s right to free speech is not unlimited.58 Kelly
54U.S. Const. amend. XIV, § 1.
55
Albury v. State, 551 A.2d 53, 61 n.13 (Del. 1988).
56
Smalls v. State, 2015 WL 71631, at *4 (Del. Jan. 5, 2015).
57
U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the Government for a redress of
grievances.”). The First Amendment applies to the states through the Fourteenth Amendment.
Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
58
In re Shearin, 765 A.2d 930, 938 (Del. 2000) (holding “there are ethical obligations imposed
upon a Delaware lawyer, which qualify the lawyer’s constitutional right to freedom of speech”)
(citing Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991)). See also Cantwell, 310 U.S. at 304
22
contends that this proceeding violated her right to free speech and free exercise of
religion by punishing her for expressing religious and political views that the State
finds repugnant. She is mistaken.
(40) It is the unfocused, irrelevant, and incoherent nature of many of Kelly’s
submissions that led to this proceeding, not her religious or political beliefs as she
contends.59 Kelly’s references to her religious and political views throughout her
submissions do not shield her from scrutiny concerning her competency to practice
law. States have an “an extremely important interest in maintaining and assuring the
processional conduct of the attorneys” they license.60 In the exercise of this Court’s
exclusive responsibility to supervise and regulate Bar members, we have determined
that a physical or mental condition has adversely affected Kelly’s ability to practice
law, Kelly is incapacitated from continuing to practice law, and Kelly must be
transferred to disability inactive status.
NOW, THEREFORE, IT IS ORDERED:
a. Kelly is immediately transferred to disability inactive status under
DLRDP 19 until such time that she demonstrates by clear and convincing evidence
that any disabilities have been removed.
(describing the “freedom to believe” as “absolute,” but recognizing that “[c]onduct remains subject
to regulation for the protection of society”).
59
See supra ¶¶ 22-26.
60
Middlesex Cty. Ethics Committee v. Garden State Bar Assoc., 457 U.S. 423, 434 (1982).
23
b. As set forth in DLRDP 19(e), this Court may take or direct any action
upon the filing of a petition for transfer to active status that it deems necessary or
proper, including a remand to the Board for a hearing and recommendation to
determine whether the disability has been removed, and may order an examination
by qualified medical experts.
c. Kelly shall not practice law in this State.
d. This Order shall be made public.
24