In the Matter of a Member of the Bar: Dillon

IN TI-IE SUPREME COURT OF THE STATE OF DELAWARE
IN THE MATTER OF A MEMBER §
OF TI-IE BAR OF THE SUPREM]E §
COURT oF THE sTATE oF § No. 463, 2017
DELAWARE: §
§
TIMoTHY A. DILLON §
Submitted: November 21, 2017
Decided: December 12, 2017
Corrected: December 14, 2017
Before VALIHURA, VAUGHN, and SEITZ, Justices.
M_R
This 14"‘ day of December 2017, it appears to the Court that:
(1) This is a lawyer disciplinary proceeding. On November 7, 2017,
the Board on Prof`essional Responsibility filed a report with this Court
recommending that the respondent, Timothy A. Dillon, Equire, be publicly
reprimanded and placed on a period of probation for two years, with the
imposition of specific conditions. A copy of the Board’s report is attached to
this order. Neither the Office ofDisciplinary Counsel nor Dillon has filed any
objections to the Board’s report.
(2) The Court has considered the matter carefully. We find the
Board’s recommendation of` a public reprimand With a two-year period of`
probation with conditions to be appropriate Thus, we accept the Board’s
findings and recommendation for discipline and incorporate the Board’s
findings and recommendation by reference
NOW, TI-IEREFORE, IT IS ORDERED that the Board’s Novernber 7,
2017 report is hereby ACCEPTED. The Office of`Disciplinary Counsel shall
disseminate this Order in accordance with Rule 14 of` the Delaware Lawyers’
Rules of` Disciplinary Procedure.
BY TI-]E COURT:
/s/ James T. Vaughn, Jr.
Justice
EFiled: Nov 07 2017 03:54P .
Filing ID 61333612
Case Number 463,2017
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BOARD on PRoFEssloNAL REsPoNslalt.rrY ' =
OF THE SUPREME COURT OF THE STATE OF DELAWAR.`éll "'t'.|‘i' ~ 'l D 31 37
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coNFIDENTIMi‘-Fllll@m~‘|
[n the Matter of a
Member of the Bar of the
Supreme Court of Delaware:
Board Case No. 112927-B, 113266-B
TIMOTI-IY A. DILLON,
REPORT AND RECOMMENDATONS OF THE HEAR|NG PANEL
Pending before a panel of the Board on Prot'essional Responsibility (the “Board") is a
Petition l`or Discipline filed by the Ot'l'lce of Disciplinary Counsel (the “ODC“) in Board Case
Nos. ll.?.9‘2.7-B, ll3266-B (the “Petition“) against Timothy A. Dillon, Esquire (“Respondent"), a
member of the Bar of the Supreme Court of the State of Delaware. The Petition alleged
violations of Rules l.l, 1.3, 1.15 (d), 3.4 (c), 5.3, 8.4 (c) and 8.4 (d). Rcspondcnt, through his
counsel, Charles Slanina, Esquire, filed an Answer to the Petition (the “Answel"), on March 21,
20|7 admitting all of the allegations contained in the Petition.
On July 13, 2017, a panel of the Board on Professional Rcsponsibility, Deirdre A.
McCartney, Esquire, Chair, Daniel F. Wolcott1 Jr., Esquire and Mr. John D. Shevock (“the
Panei") held a joint liability and sanction hearing on a petition for discipline filed by the (ODC)
in the above-captioned matter. Kathleen Va|vala, Esquire, presented the petition for ODC.
Charles Slanina, Esquire represented Timothy A. Dillon, (“Respondent"}. The Panel found that
Respondent violated Rules l.I, l.3, 1.15 (d), 3.4 (c), 5.3, 8.4 (c) and 8.4 (d) of the Delaware
Lawyers’ Rules of Professional Conduct (“Rules").
Procedurc Background
On July 7, 2017, prior to the hearing, Counsel I'or ODC1 Respondent and the panel chair
held a pre-hearing teleconf`erence to discuss the upcoming hearing. At the request of the parties a
joint hearing was scheduled for both the liability and sanctions portions At the liability portion
of the Hearing, the Panel received into evidence a joint exhibit book. The Panel also heard
testimony from the Respondent. Following the liability portion of the hearing, the panel
concluded that Respondent had violated all of` the counts in the petition for discipline. During
the sanctions portion of the hearing, the Panel also heard testimony from the Respondent, Mark
Reardon, Esquire, Robert McCann, Esquire, Yvonne Taltvorian Saville, Esquire (via affidavit)
and chee Villano. Af`ter the sanctions portion ol` the hearing, at the request of` the hearing
pancl, the record was supplemented by post hearing memorandum on sanctions The parties filed
a joint memorandum regarding admitted facts, rules, violations and recommended sanctions
The record was closed on September 6, 2017.
For the reasons stated below, the Panel finds that Respondent violated Rules I.l,
1.3, l.l$ (d), 3.4 (c), 5.3, 8.4 (c) and 8.4 (d) by failing to provide competent representation to
clients, by failing to diligently represent clients, by knowingly disobeying an obligation under
the rules of a tribunal, by failing to supervise his non-lawyer assistants by engaging in conduct
prejudicial to the administration of` justice, by failing to maintain his law finn's books and
records and engaging in conduct involving misrepresentation
Facts
The record in this proceeding consists of the testimony of witnesses at the hearing,
exhibits submitted in connection with the heating and other submissions of the parties The
transcript of the liability and sanctions portion of the hearing is cited hereinalier, as “Tr.
at ." At the liability and sanctions portion of the hearing, the parties admitted joint
exhibits The joint exhibits admitted at the liability portion of` the hearing are cited hercinat`tcr, as
“Ex at .“
Since the Respondent’s Answer had admitted the violations alleged in tire Petition, the
ODC. the Respondent, and the Panel treated the hearing as relating primarily to sanctions (Tr. at
pp. 3-4). Nevertheless, the Panel received testimony from the Respondent and the exhibits
relating to factual circumstances surrounding the violations The exhibits consisted of l) a
Superior Court opinion in Huelsenbeck el nl. v. Fenniu-J.-'mr'nes and Hichex-Sabino. Del. Super.,
CA. No. NlZC-07-216 JAP, Parkins, J. (June 7, 2013) (Memo Op.), 2) a Superior Court opinion
in Oh'ver v. Spr'reilc. De|. Super., C.A. No. NlSC¢O4-l35 JAP and Skr'nner v. Fleming, Del.
Super., C.A. No. Nl$C-03-088 .IAP, Parlcins, .|. at p. 4-6 (Jan. 8, 20|6) (Letter Op.), 3} A
Superior Court Opinion in Rr'cker!.r v. Brown and Gar°eo, Dcl. Super., C.A. No. Nl$C-04-202
JAP (June 3, 20[6) (ORDER), 4) a letter from Judge Parkins to ODC (dated Junc 3, 2016), 5)
20l5 Certificate of Compliance, 6) 2016 Ccrtificatc of Compliance and 7) Master, Sidlow 8c
Associatcs, P.A., lndependcnt Accountant Repor't (dated December 20, 2016).
Respondent was admitted to the Bar of the Supreme Court of Delaware in 1999. Petition
and Answer'i| l. Respondent is engaged in the private practice of law and has the primary
responsibility for the books and record keeping and management of his law firm McCann &
Wall, LLC. Petition and Aoswer 1[ 1. Respondent has been handling plaintiff‘s worlt, personal
injury, premise liability and motor vehicle cases since 2008, 2009. Tr. at 16. Under Rule 4 of the
Delaware Superior Court Civil Rules, the Plaintif`f` is required to file a praecipe directing the
manner and place of service of the Defendants. Petition and Answer 1| 2. The Prothonotary then
issues process as indicated and delivers it to the Slreril`f or another person appointed by the Court
to serve the Defendant. Petition and Answer 11 2. lf service cannot be made on the Defendant at
the address specified in the praecipe the Sl'rerriff or other process server returns the summons to
the Superior Court marked non est inventus (“non est”). Petition and Answer 1| 3.
Under Superior Court Civil Rule 4 (j), service must be made within 120 days of filing tire
complaint unless good cause is shown why service was not made and the Court shall dismiss the
action as to that defendant without prejudice Tr. at 17-18. A plaintiff may file a motion with the
Court for an enlargement of time to effect service or can move to appoint a special process
server. Tr. at 18. The Court may grant such motions at its discretion. Tr. at 18. Respondent
assigned the task of checking to see if service had been completed in his cases to his paralegals
Tr. at 42-43. During the time period at issue in this case, the paralegals did not follow up to
confirm service of process on the defendants Tr. 73-74. Respondent admitted that he did not
properly follow up and did not properly supervise the non-lawyer staff to ensure that service had
been completed. Tr. at 43.
As a result of' Respondent's failure to make reasonable efforts to locate the Defendants
or to timely move for an enlargement of time, four (4} cases were dismissed by the Superior
Court without prejudice See Petition and Answer‘,] 6-27. The Superior Court found in those
cases that Respondent failed to show due diligence in attempting to locate and serve the
defendants See Eit. 1-3 and Petition and Answer 11 ll, 16, 21, and 26. On .lune 3, 2016, Judge
Parlcins wrote to ODC expressing his concerns over Respondent‘s conduct in failing to locate
and serve a Defendant in one of the cases dismissed for failure to make reasonable efforts to
locate the Defendants or to timely move for an enlargement of time. Ex. 4.
In addition to the four cases noted above, there were thirteen (13) additional cases where
Respondent failed to make reasonable efforts to locate and serve the Defendants or to timely file
a motion for an enlargement of time which were not dismissed by the Superior Court. Tr. at 33-
34 and Petition and Answer 1] 28.
Respondent was the managing partner of the Wilnrington office of McCarin & Wall,
LLC. Tr. 43-44. The books and records were physically maintained in the Philadelphia office,
but there were escrow and operating accounts at Delaware banks Tr. at 65. Respondent
incorrectly assumed that the Delaware books and records were being maintained in accordance
with the provision of Rule 1.15 A. Tr. at 48-49. Respondent did not receive any specific
assurances from the Philadelphia office to that effect. Tr. at 66.
An audit of Respondcnt’s law office books and records for the six month period ending
on September 30, 2016 was conducted by the Lawyer’s Fund for Client Protcction. Ex.‘!. The
findings of the audit were that Respondent’s books and records were not properly maintained by
(a) incorrectly titling accounts (b) failing to maintain and preserve a client subsidiary ledger for
four of the six months reviewed, (c] failing to reconcile the end of the month’s cash balances to
the total of all client hinds held for four of the six months, (d) in one month1 failing to reconcile
the end of the month cash balance with the total of all client hinds held of $2,986.00; and (e)
having checks or transfers in fiduciary accounts outstanding for longer than six months Tr. 44-
46. Respondent’s 2015 and 2016 Certificates of Compliance contained misrepresentations as to
the status of McCann & Wall‘s books and records Tr. at 53. Respondent did not identify all
attomeyi'trust accounts in Question 3.1 and responded yes to items 2.2, 2.3, 2.6, 2.‘)', 2.9 and 2.12
when he should have answered no. Tr. 50-53.
During the sanctions phase of the hearing, respondent admitted that he was privately
admonished by the Delaware Supreme Court in 2012 after filing a false preceptor’s certification
in connection with an applicant's admission to the Delaware bar. 'l`r. at l34-136. R.espondent
testified at the hearing that he was cooperative with the ODC’s investigation and apologized to
the Board and the Superior Court for his conduct in the present matter. Tr. at 127-128.
Respondent further indicated that he has taken a number of corrective measures to address his
issues with service of process and with maintaining his f'urn's books and records. Tr. at 78-86
and 130-134. Respondent also offered the testimony of Renee Villano, a certified public
accountant who indicated that she had been retained by Respondent‘s firm in june of 2017 to
review the firm’s books on a quarterly basis and to perform pre-certifications to ensure
compliance with Ru|e l.lS. Tr. 120-123. Respondent also offered the testimony of Robert
McCann, Esquire, Mark Reardon, Esquire, and Yvonne Talcvorian Savillel Esquire (via affidavit)
regarding Respondent's good character and reputation. See Tr. at 110-l 12, Tr. 57-59 and Ex. 2.
Standard of Prool'
The allegations of professional misconduct set forth in ODC‘s petition must be
established by clear and convincing evidence. (Disc. Proc. Rule 15 (c)).
Findings on Vio|ations of the Rules
Based on the Respondent's admissions and the evidence provided at the Hearing, the
Panel finds that the ODC has met its burden. Specifically, the Petition alleges, and the Answer,
as amendcd, admits, nine violations of the rules of the Delaware Lawyers‘ Rules of Professional
Conduct as follows:
COUNT ONE: R.ESPONDENT VIOLATED RULE l.l BY FA[LING TO
PROV!DE COMPETEN'I' REPRESENTATION TO CL[ENTS.
Rule 1.1 provides: “[a] lawyer shall provide competent representation to a client."
Competent representation requires the legal lcnowledge, skifl, thoroughness and preparation
reasonably necessary for the representation." Respondent violated Rule l.l by failing to make
reasonable efforts to locate andfor serve the defendants within the time prescribed by Superior
Court Rule 4 (i) and/or failing to file timely motions to extend the time for service in seventeen
cases. Tr. at 34.
COUNT TWO: RESPONDENT VIOLATED RULE 1.3 BY FAILING TO
DlLlGENTLY REPRESENT CLIENTS.
Rule 1.3 requires that “[a] lawyer shall act with reasonable diligence and promptness in
representing a client." Respondent violated Rufe 1.3 by failing to make reasonable efforts to
locate andfor serve the defendants within the time prescribed by Superior Court Rule 4 (j) and/or
failing to file timely motions to extend the time for service in seventeen cases. Tr. at 35-36.
COUNT THREE: RESPONDENT VIOLATED RULE 3.4 (C) BY KNOWINGLY
DISOBEYING AN OBLIGATION UNDER THE RULES OF THE TRIBUNAL.
Under Rule 3.4 (e) a lawyer is prohibited from “(c} knowingly disobey an obligation
under the rules of a tribunal, except for an open refusal based on an assertion that no valid
obligation exists". Respondent violated Rule 3.4 (c) by failing to make reasonable efforts to
locate and/or serve defendants within the 120 days required by Superior Court Civil Rttle 4 (i)
anchor failing to move for an extension of service during that 120 period. Tr. 30, 33 and 36.
COUNT FOUR: R.ESPONDENT VIOLATED RULE 5.3 BY FAILING TO
SUPERWSE NON-LAWYER ASS ISTANTS.
Rule 5.3 states in part: “[w]ith respect to a non-lawyer employed or retained by or
associated with a lawyer: (b) a lawyer having direct supervisory authority over the non-lawyer
shall make reasonable efforts to ensure that the person’s conduct is compatible with the
professional obligations of the lawyer; and (e) a lawyer shall be responsible for conduct of such a
person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer
if:. . . the lawyer. . . has direct supervisory authority over the person, and knows of the conduct
at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial
action." Respondent violated Rule 5.3 by failing to supervise his employees and failing to have
reasonable safeguards in place which would assure timely service of process in seventeen cases
filed in the Superior Court. Tr. 30, 33 and 36.
COUNT FIVE: RESPONDENT VIOLATED RULE 8.4 (D) BY ENGAGING IN
CONDUCT PREJUDC]AL TO THE ADMINISTRATION OF JUSTICE.
Pursuant to Rule 8.4 (d) “[i]t is professional misconduct for a lawyer to:
(d) engage in conduct that is prejudicial to the administration of justice." Respondent violated
Rule 8.4 (d) by failing to make reasonable efforts to locate andfor serve defendants within the
120 days required by Superior Court Civil Rule 4 (]') and/or by failing to move for an extension
of time for service during that 120 day peried.
COUNT SIX: RESPONDENT VlOLATED RULE l.lS(D) BY FAILING TO
MA|NTAIN THE LAW FIRM'S BOOKS AND RECORDS.
Rule l.l$ (d) sets forth some of the requirements for maintenance of attorney books and
records and provides in part as follows:
“. . . (2) Bank accounts maintained for fiduciary funds must be specifically designated as
“Rule l.lSA Attomey Trust Account” or “l.l$A Trust Account" or “Rule l.l$A
Attomey Escrow Account" or “l .lSA Escrow Account,” and must be used only for funds
held in a fiduciary capacity. A designation of the account as a “Rulc l.ISA Attomey
Tnist Account” or “l.lSA Trust Account” or “Rule l.lSA Attomey Escrow Account" or
“l.lSA Escrow Account," must appear in the account title on the bank statement Other
related statements, checks, deposit slips, and other documents maintained for fiduciary
hinds, must contain, at a minimum, a designation of the account as “Attorney Trust
Account" or “Attomey Escrow Account." (3) Banlc accounts and related statements,
checks, deposit slips, and other documents maintained for non-fiduciary hinds must be
specifically designated as Attomey Business Account" or “Attomey Operating Acceunt,"
and must be used only for funds held in a non-fiduciary capacity...(?) A monthly
reconciliation for each bank account, matching totals from the cash receipts and cash
disbursement joumals with the ending check register balance, must be performed... (B)
The check register balance for each bank account must be reconciled monthly to the bank
statement balance...(lZ) With respect to all fiduciary accounts: (A) A subsidiary ledger
must be maintained and preserved with a separate account for each client or third party in
which cash receipts and cash disbursement transactions and monthly balances are
recorded. (B) Monthly listings of client or third party balances must be prepared showing
the name and balance of each client or third party, and the total of all balances (C) No
hinds disbursed for a client or third party must be in excess of hinds received from that
client or third party. If, however, through error funds disbursed for a client or third party
exceed funds received from that client or third party, the lawyer shall transfer funds from
the non-fiduciary account in a timely manner to cover the excess disbursement (D) The
reconciled total cash balance must agree with the total of the client or third party balance
listing. There shall be no unidentified client or third party funds. The bank reconciliation
for a fiduciary account is not complete unless there is agreement with the total of client or
third party accounts. (E) lf a check has been issued in an attempt to disburse hinds, but
remains outstanding (lhat is. the check has not cleared the trustor escrow bank account)
six months or more from the date it was issued, a lawyer shall promptly take steps to
contact the payee to determine the reason the check was not deposited by the payee, and
shall issue a replacement check, as necessary and appropriate."
After an audit by the lawyer‘s li.ind for client protection, Respondent was found lo have
violated Rule l.l$ (d). Respondent violated the rule by (a) incorrectly titling accounts; (b)
failing to maintain and preserve a client subsidiary ledger for four of the six months reviewed;
(c) failing to reconcile the end of the months cash balances to the total of all client funds held for
four of the six months; (d) in one month, failing to reconcile the end of the month cash balance
with the total of all client funds held by $2,986.00; and (e) having checks or transfers in fiduciary
accounts outstanding for longer than six months. Tr. 45 and 46.
COUNT SEVEN: RESPONDEN'I` VlOLATED RULE 5.3 BY FAILING TO
SUPERVISE NON-LAWYER ASSISTANTS.
Rule 5.3 states in part: “[w]ith respect to a non-lawyer employed or retained by or
associated with a lawyer: (b) a lawyer having direct supervisory authority over the non-lawyer
shall make reasonable efforts to ensure that the person’s conduct is compatible with the
professional obligations of the lawyer; and (e) a lawyer shall be responsible for conduct of such a
person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer
if:. . . the lawyer. . . has direct supervisory authority over the person, and knows of the conduct
at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial
action.“ Respondent violated Rule 5.3 by failing to have reasonable safeguards in place which
would assure an accurate accounting of his law practice and books and records in compliance
with the Rules and by failing to supervise his employees’ conduct in maintaining his books and
records. Tr. 46-4?.
COUNT EIGHT: R.ESPONDENT ENGAGED IN CONDUCT lNVOLVING
MISREPRESENTATION IN VlOLATlON OF RULE 8.4 (e).
Rule 8.4 (c} provides that “[i]t is professional misconduct for a lawyer to: (c) engage in
conduct involving dishonesty, ii'aud, deceit or misrepresentation." Respondent violated Rule 8.4
(c) by filing with the Supreme Court Certifrcates of Compliance in 2015 and 2016 which
contained inaccurate statements regarding the status and maintenance of his law firrn's books
and records. Tr. 50, 51 and 53.
COUNT NlNE: RESPONDENT ENGAGED IN CONDUCT PREJUD[CIA|.. TO
THE ADMINISTRATION OF JUSTICE lN VOOLATION OF RULE 8.4 (d).
Pursuant to Rule 8.4 (d) “[i]t is professional misconduct for a lawyer to:
(d) engage in conduct that is prejudicial to the administration of justice." Respondent violated
Ri.ile 8.4 (d} by filing 2015 and 2016 Certilicates of Compliance which included
misrepresentations relating to the maintenance of this law practice books and records.
Recommeoded Sanction
The ODC and Respondentjoiritly contend that the presumptive sanction in this matter is a
public reprimand with a two-year probation period with conditions For the reasons which
ill
follow, the Panel recommends that the Respondent be subject to a public reprimand and a two-
year probation with conditions.
Rationale for Reeommended Sanction
in making its recommendation, the Panel has utilized the four-part framework set forth in
the ABA Standards for lmposing Lawyer Sanctions (1991 as amended February 1992) (“ABA
Standards"). To promote consistency and predictability in the imposition of disciplinary
sanctions, the Delaware Supreme Court looks to the ABA Standards. fn re Doirglity, 832 A.2d
724, 735-736 (Del. 2003) (citations omitted). The ABA Standards‘ framework considers: (l) the
ethical duty violated; (2) the lawycr's state of mind; (3) the actual or potential injury caused by
the lawyer’s misconduct; and (4} aggravating and mitigating factors. !d.
l. The Et!u’ca! Duti'es Vialared'.
As previously rccited, the ODC alleged, the Respondent admitted, and the Panel
determined that the Respondent committed misconduct in violation of Professional Riiles of
Conduct Rules l.l, 1.3, 1.15 (d), 3.4 (c), 5.3, 8.4 (c) and 8.4 (d) by failing to provide competent
representation to clients, by failing to diligently represent clients, by knowingly disobeying an
obligation under the rules of a tribunal, by failing to supervise his non»lawyer assistants, by
engaging in conduct prejudicial to the administration of justice, by failing to maintain his law
linn‘s books and records and engaging iri conduct involving misrepresentation
Under the ABA Standards, this misconduct constituted violations ol` duties owed by the
Respondent to clients (Rules I.l and 1.3, and violations of duties owed by Respondent to the
legal system, (Rules 1.15 (d) and 5.3) violations of duties owed by Respondent to the Profession,
(Rules 3.4 (c) and 8.4 (d)). See ABA Standards 4.0, 6.0 and 7.0.
2. Srare oer'rrd.
The ODC contends, the Respondent agrees. and the Panel finds that the Respondent’s
mental state was negligence Negligerice is “the failure of a lawyer to heed a substantial risk that
circumstances exist or that a result will follow, which failure is a deviation from the standard of
care that a reasonable lawyer would exercise in the situation.” ABA standards definitions
Respondent testified that he was the managing partner in charge of the firm‘s books and records.
Tr. at 43-44. Respondent admitted the following violations of Rule l.l.S (d): multiple checks
were outstanding for longer than six months, accounts were incorrectly titled, a fiduciary account
that should have been listed on the certificate of compliance was not listed, monthly client
subsidiary ledgers were not maintained in four or the six months reviewed, the adjusted bank
balance did not agree with the general ledger in four of the six months reviewed, the reconciled
end of month cash balances did not agree for the total of all client hinds held in four of the six
months reviewed, in one month the client subsidiary ledger was prepared but the reconciled end
of month cash balance differed from all client funds held by $2,986.00 and the firm did not
prepare a monthly listing of client account balances for four of the six months reviewed. Tr. 44-
46.
Respondent testified that he delegated responsibility for maintaining the books and
records to staff members in the Philadelphia office Tr. 46-47. Respondent further testified that
he incorrectly assumed that the books and records were being pmperly maintained and did not
adequately supervise his staff or take appropriate safeguards to ensure that they were properly
maintained Tr. 47-48. Respondent acted negligently by failing to take reasonable measures to
supervise his staff and ensure that appropriate safeguards were in place to maintain compliance
with Rule 1.1.5 (d). See, [ri re Malr'k, 2017 WL 2893921 (Del. Slip. Op.) and !n Re Gmy, 152
A.3d 581 (Del. 2016).
Regarding the misrepresentation on the Certilicates of Compliance, the Respondent was
aware of his obligations in accurately responding on the certificate of compliance Tr. at 50. The
Respondent further admitted that there were inaccuracies on the certificate of compliance. Tr. at
50-53. Respondent acted negligently by failing accurately certify the status of his law firin's
books and records to ensure that they were being properly maintained which resulted in a breach
of his duty to the legal system. See, !n re M¢ili’lc, 2017 WI.. 2893921 (Del. Slip. Op.).
Respondent testified that he was aware of the Rule 4 requirements for service of a
complaint Tr. at 17. Respondent's paralegals were tasked with following up on service of the
complaint and he admitted that he did not adequately supervise his staff to make sure they were
properly following up on service. Tr. at 42-43. Respondent acted negligently in failing to
adequately supervise non-lawyer staff to ensure that service was perfected
ln light of the above, the Panel finds that the Respondent was negligent by failing to heed
the substantial risk that failure to take reasonable measures and enact appropriate safeguards
would result in his firm’s books and records being improperly maintained and in failing to
supervise non-lawyer staff to ensure that service had been perfected.
3. Actmrl or Parenrr‘iil Injmy.
Respondent's clients and the legal system were actually or potentially harmed by
Respondent`s failure to adequately supervise his staff. injury is defined as “hann to a client, the
public1 the legal system, or the profession which results from a lawyer's misconduct." ABA
standards, Delinitions. Potential lnjury is “harm to a client, the public, the legal system or the
profession that is reasonably foreseeable at the time of the lawyer‘s misconduct, and whieh, but
l'.l
for some intervening factor or event, would probably have resulted from the lawyer’s
misconduct ABA standards, Detinitions. However, actual injury is not required. See. e.g.. fn re
Benson, 77 A.2d 258, 262 (Del. 2001). Here, the Respondent failed to perfect service in
seventeen Superior Court cases resulting in a dismissal in four cases without prejudice. Tr. 74-
76. ln the cases which were dismissed, the Court wrote an opinion in three of the cases. Exs. 1-3.
After the four cases were dismisscd, the Respondent filed a new case under the savings statute
which required the Court to process a new complaint and issue a new case scheduling order. Tr.
95-96. Respondent acknowledged that his conduct caused his clients and the legal system
inconvenience Tr. at 129. Respondent’s actions resulted in potential injury to the client as it
caused a delay in getting those cases to the settlement phase and actual injury to the legal system,
as it was a waste of judicial resources. Tr. at 75-76.
With respect to the legal system, potential injury existed, as the Court may have relied on
the Certiiicates of Compliance. Sce, Irr re Grrry, 152 A.Jd 581 (Del. 2016) (“if the Court is
unable to rely upon the truthfulness of the self-reporting certifications, the confidence in the
public in the trustworthiness of lawyers will be less...{w}ith respect to the filing of the
Certificate of Compliance, there was an actual injury since the Court believed the Respondent
was in compliance when he was not."). In additiqu Respondent caused potential injury to his
clients and to third parties, by failing to properly supervise his staff to ensure that his law f`irm‘s
books and records were being maintained in compliance with Rule l.l.S (d). See, fn Re Bensori,
774 A.?.s 258, 262-263 (Del. 2001) (“A lawyer’s duty to maintain proper books and records
exists for the purpose of protecting not only the lawyer but the lawyer’s clients, and the failure to
fulfill that duty presents serious risk to the lawyer's clients, even if not actual harm results.").
4. Presrrrrrp!r°ve Sarrc!r'an.
fn the Panel’s view, analysis of the ethical duties violated by the Respondent. the
Respondent’s state of mind and the potential for injury caused by Respondent’s misconduct raise
a presumptive sanction of` public reprimand with two year probation with conditions. The ethical
duties violated direct the Panel to the following factors contained in the ABA Standards: 4.43
and 4.53 (for violations of Rules l.l and 1.3), 7.3 (for violation of Rules l.l$ and 5.3) and 6.13
(for violations of Rule B.4(c)) and 6.23 (for violations of Rule 8.4 (d}). Where, as in this matter,
the conduct involves negligent acts with injury or potential injury, these provisions point
generally to a public reprimand as an appropriate sanction. See ABA Standards 4.43, 4.53, 6.13,
6.23, and 7.3. ABA Standard 4.43 provides “[r]eprimand is generally appropriate when a lawyer
is negligent and does not act with reasonable diligence in representing a client, and causes injury
or potential injury to a client." Respondent’s conduct was negligent by failing to act with
reasonable diligence in following up on service and/or failing to appropriately supervise his staff
to ensure that service had been perfected Respondent’s conduct caused potential injury to his
client's by delaying settlement of their cases and/or resolution of their pending cases.
ABA Standard 4.53 provides “[r]eprimand is generally appropriate when a lawyer: (a)
demonstrates failure to understand relevant legal doctrines or procedures and causes injury or
potential injury to a client; or (b) is negligent in determining whether he or she is competent to
handle a legal matter and causes injury or potential injury to a client." Respondent's conduct
demonstrated a failure to understand the requirements of Rule 4 (i) by failing to perfect service
within 120 days of filing the complaint and/or by failing to timely file a motion to extend the
time period for service. Respondent's conduct caused potential injury to his client‘s by delaying
settlement of their cases andfor resolution of their pending cases.
15
ABA Standard 6.13 provides: "[r]eprimand is generally appropriate when a lawyer is
negligent either in determining whether statements or documents are false or in taking remedial
action when material information is being withheld, and causes injury or potential injury to a
party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal
proceeding." Respondent’s conduct was negligent by failing to take appropriate measures to
ensure that the information provided in his certificate of compliance was accurate. Respondent's
conduct caused injury and!or potential injury to the legal proceeding as an audit of his firm’s
books and records revealed inaccuracies in the certificate of compliance
ABA standard 6.23 provides: “[r]eprimand is generally appropriate when a lawyer
negligently fails to comply with a court order or rule, and causes injury or potential injury to a
client or other party, or causes interference or potential interference with a legal proceeding."
Respondent acted negligently by filing a certificate of compliance which contained inaccurate
information concerning the status of his law limi's books and records. Respondent's conduct
resulted in actual and/or potential injury to his clients and the legal system.
ABA standard 7.3 provides “[r]epr'imand is generally appropriate when a lawyer
negligently 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." Respondent’s conduct was
negligent when he delegated bookkeeping responsibilities to a non-lawyer staff and failed to take
appropriate measures to supervise his staff to ensure that his linn’s books and records were in
compliance with Rule l.lS. Respondent’s conduct caused potential injury to his clients and
actual andfor potential injury to the legal system. The presumptive sanction must then factor in
the presence or absence of any mitigating or aggravating factors.
lo
5. Aggravatr'ng and Mi!r]goting Factors.
ABA Standard 9.22 sets forth the following non-exhaustive list of aggravating factors:
(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with
rules or orders of the disciplinary agency;
(i) submission of false evidence, false statements, or other deceptive practices during the
disciplinary process;
(g) refusal to acknowledge wrongful nature of eonduct;
(lr) vulnerability of victim;
(i) substantial experience in the practice of law;
(j) indifference lo making restitution;
(k) illegal conduct, including that involving the use of controlled substances
(ABA Standard § 9.2?.)
Respondent and the Oflice of Disciplinary Counsel stipulated that the following
aggravating factors apply: l] prior disciplinary offenscs, 2) pattern of misconduct, 3) multiple
offenses, and 4) substantial experience in the practice of law. The panel concurs. Respondent had
a prior disciplinary offense in 2012, a private admonition Ex. 8. Respondent had a pattern of
misconduct as there were multiple instances where he failed to act diligently in complying with
the service requirements of Rule 4 (j) and/or failed to timely tile a motion for an enlargement of
time to effectuate service. Exs. 1-3, Petition and Answerj] ll, 16, 21, 26, and 28, and Tr. at 33-
34. Respondent also had multiple offenses because in addition to the failure to act diligently in
effectuating service noted above, Respondent also filed certificates of compliance with
inaccurate statements and multiple deficiencies were noted during the audit in Respondent's
maintenance of his frrm’s books and records. Tr. 44-46, and Tr. at 53. Respondent has
substantial experience in the practice of law, given the Respondent’s eighteen years as a member
of the Bar having been admitted in 1999. ’l`r. at p. 15 and Answer 1| l. The panel notes that these
aggravating factors do not justify imposition of a sanction more severe than n public reprimand,
particularly in light of the numerous mitigating factors discussed below.
ABA Standard 9.32 sets forth the following non-exhaustive list of factors to be
considered in mitigation:
(a) absence of a prior disciplinary record;
(b) absence of a dishonest or selfish motive;
(c] personal or emotional problems;
(d) timely good faith effort to make restitution or to rectify consequences of misconduct;
(e) lirll and free disclosure to disciplinary board or cooperative attitude toward proceedings;
(i) inexperience in the practice of law;
(g) character or reputation;
(h] physical disability;
(i) mquh§ghili_tv or chemical dependency including alcoholism or drug abuse when:
(l) there is medical evidence that the Respondent is affected by a chemical dependency
or mental gisability;
(2) the chemical dependency or mental disabilitv caused the misconduct;
(3] the respondent’s recovery from the chemical dependency or menth disability is
demonstrated by a meaningful and sustained period of successful rehabilitation; and
(4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely;
(j) delay in disciplinary proceedings;
(k) imposition of other penalties or sanctions;
(l) remorse;
(m) remoteness of prior offenses.
(ABA Standard § 9.32)
The Office of Disciplinary Counsel and the Respondent stipulated that the following
mitigating factors apply: I) absence of a selfish or dishonest motive; 2) timely good faith effort
to rectify the consequences of misconduct; 3) cooperative attitude toward disciplinary
proceedings; 4) character or reputation; and 5) remorse. The panel concurs.
The Panel recognizes that the Respondent did not appear to have a dishonest or selfish
motive that resulted in the violations at issue. Tr. 66 and Tr. ?3-78. Respondent has since taken a
number of steps to rectify the misconduct such as repeated efforts to address the service issues
and books and records violations Tr. at 78-85, and Tr. 120~121. Respondent displayed a
cooperative attitude toward the disciplinary proceedings and remorse. Tr. at 97-98 and Tr at 127-
128. The Panel notes that Respondent during his testimony seemed to be genuinely remorseli.rl.
The panel finds and the record supports that Respondent has a good character and reputation. See
Tr. at 110-l 12, Tr. 57-59 and Ex. 2.
Neverthe|ess, the Panel finds that these mitigating factors carmot negate the sanction of
public reprimand The Panel believes that a private sanction would not serve the purpose of
providing notice to the legal community and the public that repetitive violations with respect to
maintenance of proper financial books and records are taken very seriously by the Board and the
Delaware Supreme Courc. See fn re Bensan, 774 A.Zd 258, 262-263 (Del. 2001} (linding that a
private sanction may be appropriate for an isolated record-keeping violation, but negligent
failure for three consecutive years to determine whether Certificates of Compliance are accurate
reflects a pattern of misconduct justifying public reprimand). The Panel further believes that a
private sanction would not serve to notify the legal community that attorneys are responsible for
properly supervising their staff to ensure compliance with the service rules.
6. Precedent.
Lastly, the Panel believes that recommending a public reprimand in this matter is
consistent with Delaware Supreme Court precedent. “[T]he objectives of any lawyer sanction
should be to protect the public, to advance the administration of justice, to preserve confidence in
the legal profession, and to deter other lawyers from similar misconduct." [n re Doughry, 832
A..'!d 724, 73 5-736 (Del. 2003) (citations omitted).
With regard to an appropriate sanction, Respondent and the Oflice of Disciplinary
Counsel suggested and the panel agrees that the following cases with similar findings of failure
to properly maintain books and records and inaccurate information on the certificate of
compliance support a public reprimand with probation: fn re Ma[ik, 2017 EL 2893921 (Del. Slip.
Op.); hr re Castro, 160 A.Sd 1134 (Del. 2017); br Re G‘ray, 152 A.?»d 851 (Del. 2016) Irr re
Woods, 143 A.2d 1223 (Del. 2016); fn re Sirr!l, 2009 WL 4573243 (Del. Dec. 4, 2009); In re
O'Brr'en, 2005 WL 3143353 (Del. Nov. 22, 2005); fn re Tlrompson, 2003 WL 728885 (Del. Fe.
28, 2003); fn re Mnrtr'n, 2011 WL 2473325 (Del. June 22, 201]); fn re Frae!rh‘ch, 838 A.Zd lil'/'
(Del. 2003); fn re Dotrghty, 832 A.2d 724 (Del. 2003); !n re Ben.ron, 774 A.Zd 258 (Del. 2001);
and fn re MoePlrer.ron, 2001 EL 760866 (Del. June 14, 2001). A public reprimand is also
appropriate where there is client neglect combined with other violations fn Rr.- Wilk.r, 99 A.3d
228 (Del. 2014}. Tlte Panel recommends a public reprimand and a two year probation with the
following conditions: (l) Respondent shall have nn audit by a licensed public accountant who is
knowledgeable of the accounting procedures used by the Supreme Court for Rulc l .15 (d) audits
and has attended the LFCP training for accountants for his/her 2013 and 2019 Certifieatcs of
Compliance, reporting the status of liis!her r:rimp.rlianr:cl or lack thcrcot`, with the requirements of
Rulc |.15 and Rule l liA; (2) Respondent shall provide ODC with n copy of the required pre-
ccrtil‘ication; and (3) Respondent shall pay the costs associated with the investigation of this
matter by ODC. including the costs of the LFCl’ aud:t.
Cnncluslon.
Based on the foregoing considerations. lhc Panel recommends as action of the Board that
the sanctions ser forth in Section (i of this Report be imposed upon the Respondent, including the
imposition of costs of these disciplinary proceedings pursuant to Delaware Lawyers` Ru|e of
Disciplinary Proccdttre 27.
Respeetfully submined,
"_':@gr<§u -i!l;‘t` .g-l_r_¢lf\t_r/{
Derrdrc A. Mchrtncy, Esquire, Chatr
\,m re wax
Daniel F. Vo cotr. Jr. ., Es'q
Date: 11l |7 l ] ®
.lol'rn D. Shcvock
Datc:
11
appropriate where there is client neglect combined with other violations In Rc Il'i!k.r, 99 A.3t1
228 {Dcl. 2014). 'l`he Panel recommends a public reprimand and a two year probation with the
following conditions: (l] Respondent shall have an audit by a licensed public accountant who is
knowledgeable ol` the accounting procedures used by the Supreme Court for Rulc l.lS (d) audits
and lias attended the LFCP training for accountants for his!hcr 2018 and 2019 Certil'ieates ol`
Compliance. reporting the status of his/her compliance, or lack thereof1 with the requirements of
Rulc l.15 and Rule l.l$A; (2,) Respondent shall provide ODC with a copy of the required pre»
certii`ieation; and (3) Respondent shall pay t|ie costs associated with the investigation of this
matter by ODC. including the costs of the LFCP audit.
Conelusiun.
Based on the foregoing considerationsl the Panel recommends as action ol` the Board that
the sanctions set forth in Scction t'i of this Report be imposed upon the Respondent. including the
imposition oi' costs of these disciplinary proceedings, pursuant to Dclaware Liiwyers' Rule of
Disciplinary Procedure 27.
Respectt`ully subniitted,
Deirdre A. McCartney. Esqiiire. Cliair
Date:
Daniel F. Wolcott. .lr., Esquire
Date: