In the Matter of a Member of the Bar of the Supreme Court

IN THE SUPREl\/[E COURT OF THE STATE OF DELAWARE
IN THE MATTER OF A l\/[EMBER §
OF THE BAR OF THE SUPREME §
CoURT oF THE sTATE oF § No. 283, 2018
DELAWARE: §
§
ERIK C. GRANDELL §
Submitted: June 18, 2018
Decided: June 29, 2018
Bef`ore STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.
0 R D E R
This 29th day of` June 2018, it appears to the Court that:
(1) This is a lawyer disciplinary proceeding. On May 29, 2018, the
Board on Professional Responsibility filed its Report and Recommendation
(“Board’s Report”) With this Court, recommending that the respondent, Eril<
C. Grandell, 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 Of`fice of Disciplinary
Counsel nor Grandell 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 f`or discipline and incorporate the Board’s
findings and recommendation by reference
NOW, THEREFORE, IT IS ORDERED that the Board’s Report is
hereby ACCEPTED. The Of`fice of Disciplinary Counsel shall disseminate
this Order in accordance With Rule 14 of the Delaware LaWyers’ Rules of
Disciplinary Procedure.
BY THE COURT:
/s/ Garv F. Travnor
Justice
EFiled: May 29 2018 03:47P `
Fi|ing |D 62074347
C'ase Num ber 283,2018'
BOARD ON PROFESSIONAL RESPONSIBILITY OF THE SUPREME
COURT OF DELAWARE
Re: Matter of a Member of the
Bar of the Supreme Court of
co 00 co ne
The State of Delaware
: Board Case No. 113458-B
ERIK C. GR.ANDELL, :
prondent
en an
BOARD REPORT AND RECOMMENDATION
This is the report of The Board on Professional Responsibility of the Supreme Court of
the State of Delaware (the “Board”) setting forth its findings and recommendations in the above-
captioned matter.
The members of the panel of the Board (the “Panel”) are Gary W. Ferguson, Jessica
Zeldin, Esquire and Patricia O. Vella, Esquire (the “Chair”). The Office of Disciplinary Counsel
(the “ODC”) was represented by Jennifer-Kate Aaronson, Esquire. The Respondent, Erik C.
Grandell, Esquire appeared pro se.
A hearing was held on December 14, 2017. After receiving the transcript, the parties
filed post-hearing memoranda Respondent filed his opening brief on February 8, 2018, ODC
filed its answering memorandum on liability and sanctions on February 21, 2018, and
Respondent filed his reply on March 19, 2018.
I. PROCEDURAL BACKGROUND
The ODC filed a Petition for Discipline on November l, 2017 (the “Petition”). In the
Petition, the ODC alleged a violation of Rule 7(c) (“Rule 7(c)”) of the Delaware Lawyers’ Rules
of Disciplinary Procedure (the “Procedural Rules”) and Rule 8.4(d) (“Rule 8.4(d)”) of the
Delaware Lawyers’ Rules of Prcfessional Conduct (the “Rules”). Rule 7(c) provides that it
“shall be grounds for disciplinary action for a lawyer to . . . [v]iolate the terms of any conditional
diversion or private or public disciplinary or disability disposition.” Rule 8.4(d) provides that it
is “professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the
administration of justice.” On November 28, 2017, Respondent filed his answer to the Petition
denying the allegations in the Petition.
Il. FINDINGS OF FACT
Respondent was admitted to the Delaware Bar in 1989. (Tr. at 73). On October 14,
2013, ODC filed a Petition for Interim Suspension in the Delaware Supreme Court seeking
Respondent’s suspension from the practice of law pending resolution of multiple disciplinary
cases. (ODC Ex. 2; Tr. at 75-78).l In response, Respondent filed a Motion to Transfer to
Disability Inactive Status alleging he was incapable of defending the disciplinary proceedings
(Tr. at 75-78). Respondent’s Motion was granted by the Delaware Supreme Court.
Following treatment with a mental health provider, Respondent notified ODC of his
intent to petition the Court for transfer to active status. (Tr. at 84-86). Respondent discussed
with ODC the conditions ODC would recommend if the Court granted Respondent’s transfer
back to active practice, including: Respondent shall meet on a monthly basis with a mutually
agreed upon practice monitor who will closely review Respondent’s legal work and cases and
provide quarterly reports to ODC of the Respondent’s compliance with the conditions of
reinstatement. (Tr. at 87-88). Respondent acknowledged he had the opportunity to ask any
questions to clarify the proposed conditions. (Tr. at 91-92). Thereafter, Respondent filed his
Petition to Transfer to Active Status and Stipulation of Conditions with the Court. (ODC Ex. 3).
' The transcript li'om the joint liability and sanction hearing held on December 14, 2017 is
referred to as “Tr. at m.”
On December 10, 2014, the Court entered an Order transferring Respondent to active
practice subject to the following conditions:
l. Respondent was prohibited from engaging in the solo practice
of law;
2. Respondent was prohibited from acting as managing partner in
charge of books and records of a firm;
Respondent shall notify any employer of these conditions;
Respondent shall remain in active treatment with a licensed
mental health treatment provider;
5. Respondent shall execute a formal monitoring agreement with
DE-LAP and comply with all conditions deemed appropriate
by DE-LAP;
6. Respondent shall meet on a monthly basis with a mutually
agreed upon practice monitor who would closely review
Respondent’s legal work and cases and the practice monitor
would provide quarterly reports to ODC regarding
Respondent’s compliance with the conditions of reinstatement
and
7. Respondent shall report to ODC any violations of the
conditions of his transfer to active status.
:'~`*!-"’
(Jt. Ex. l).
Thereafter, ODC proceeded with its prosecution of the underlying disciplinary cases that
were pending when Respondent transferred to disability inactive status. Respondent proceeded
pro se. (Tr. at 92-93). Prior to ODC’s presentation of Respondent’s five pending cases to the
Preliminary Review Committee (“PRC”), Respondent knew ODC would recommend a private
admonition to the PRC with conditions and probation. (Tr. at 93-94). On June 26, 2015,
Respondent accepted the private admonition with a two-year probation and conditions offered by
the PRC for the misconduct in those cases. (Jt. Ex. 2). Respondent consented to the following
conditions:
l. Respondent was prohibited &om engaging in the solo practice
of law;
2. Respondent was prohibited from acting as managing partner in
charge of books and records of a firm.
3. Respondent shall notify any employer of these conditions;
4. Respondent shall remain in active treatment with a licensed
mental health treatment provider;
5. Respondent shall execute a formal monitoring agreement with
DE-LAP and comply with all conditions deemed appropriate
by DELAP;
6. If Respondent engages in the practice of law, Respondent shall
meet on a monthly basis with a mutually agreed upon practice
monitor who would closely review Respondent’s legal work
and cases and the practice monitor would provide quarterly
reports to ODC regarding Respondent’s compliance with
monitoring;
7. Upon request of ODC, Respondent would provide
authorization for release of information and documentation to
verify compliance with the conditions ofprobation; and
8. Respondent would reimburse the Camarda/Sinith claim paid by
the Lawyers’ Fund for Client Protection (“LFCP”) in the
amount of $l,OO0.00 within sixty (60) days.
(Jt. Ex. 2). Prior to signing the Certificate of Consent accepting the sanction, Respondent
admitted he read the private admonition and two-year probation with conditions offer and
understood the conditions (Tr. at 95-96). With the exception of Condition #8, reimbursement to
the LFCP, the conditions were essentially identical to those imposed by the Court when it
granted his reinstatement in December 2014, (Tr. at 96).
Between February 2016 and October 2016, Respondent was employed at Kent &
McBride, P.C. (“K&M”), supervised by David Malatesta, Jr., Esquire (“Malatesta”). ('1' r. at 34,
39). Respondent testified he never advised Mr. Malatesta of the condition requiring a mutually
agreed upon practice monitor and quarterly reports to ODC. (Tr. at lOl, l$l).2 Mr. Malatesta
confirmed he knew nothing of the practice monitor condition and never submitted reports to
ODC.3 (Jt. Ex. 2, p. 7; Jt. Ex. 8; Tr. at 36-37). Respondent never asked Mr. Malatesta to call
Respondent’s testimony was in direct contradiction to his statement in his submission to
the PRC: “We did discuss each of the terms in great detail though.” (Jt. Ex. ll, p.4).
Mr. Maletesta testified:
Q. What, if anything, did Mr. Grandell explain to you regarding any
conditions or limitations on his ability to practice law?
4
ODC to inquire as to what must be reported to ODC in the quarterly practice monitor report. (Tr.
at 100). Respondent did not even think Mr. Malatesta was his practice mcnitor. (Tr. at 147,
148). Mr. Malatesta terminated Respondent due to performance problems. (Tr. at 39-42).
Respondent admitted it was his obligation to comply with the conditions of the private
admonition (Tr. at 102). Respondent admitted he knew a practice monitor report was due at the
end of his first quarter with K&M. (Id.). Respondent testified that he never notified ODC of his
employment with K&M and that he thought that ODC was “monitoring” his compliance (Tr. at
102-103). He also testified that he “was under the impression” that ODC was going to provide
him with a name of practice monitor. (Id.).
The first time Respondent contacted ODC regarding his employment with K&M was
after his termination (ODC Ex. 7). Respondent testified that he discussed the practice monitor
condition with ODC around that time. (Tr. at 170-71).
In March 2017, Respondent began working for Mattleman, Weinroth and Miller, P.C.
(“MWM”). ('l`r. at 105). Respondent testified he never notified ODC of his new employment.
(Tr. at lll). ODC learned of Respondent’s new employment upon receipt of a client complaint
in April 2017. (Tr. at ill-12). Thereaher, Respondent advised ODC of his new employment
(Tr. 112-13.). Dominique Church, Esquire, currently serves as Respondent’s practice monitor
and has submitted quarterly reports to ODC. (Tr. at llO; Respondent Ex. 2 & 3).
(. . . continued)
A. What I was told by Mr. Grandell was that he was not able to engage in
solo practice, that he needed to work within a firm, and that the was not able
to manage the books or oversee the books in terms of accounting
requirements
Q. Were you provided any other information regarding any limitations or
conditions on his practice?
A. No. (Tr. at 36).
Respondent reimbursed the LFCP the $1,000 for the Camarda/Smith claim referenced in
Condition #8 over two years alier his reinstatement. (Jt. Ex. 7). Respondent initially advised
ODC he had reimbursed the LFCP in a response to ODC’s investigation of the April 2017 client
complaint. (Jt. Ex. 3, p. 2; Jt. Ex. 5; Tr. at 111-113). On June 7, 2017, Respondent notified
ODC he had not reimbursed the LFCP, (Jt. Ex. 4). Bunny Christopher, Executive Director for
the LFCP, testified that Respondent called her on June 7, 2017, to inquire about payment. (Tr. at
125-130). Ms. Christopher sent an invoice the same day as Respondent’s inquiry. (Jt. Ex. 7).
The LFCP stamped the invoice as paid on August 17, 2017. (Jt. Ex. 7).
III. RESPONDENT VIOLATED PROCEDURAL RULE 7(c) AND RULE 8.4(d).
A. Procedural Rule 7(c)
The Delaware Supreme Court has held that the failure to comply with the terms of a
private disciplinary sanction violates Procedural Rule 7(c). ln re Woads, 143 A.3d 1223, 1226
(Del. 2016). ODC alleges that Respondent failed to comply with Conditions #3, 6 & 8 of his
private admonition. (Jt. Ex. 2, p. 7). Condition #3 required Respondent to notify any employer
of the conditions. (!d.). Respondent admitted he never notified Mr. Malatesta of Condition #6 -
the requirement of mentiin meetings with a practice monitor who would submit quarterly reports
to ODC. (Id.; Tr. at 101, 151). Respondent also never submitted quarterly practice monitor
reports to ODC while employed by K¢licM.4 Based on the testimony of Mr. Malatesta, the Board
finds that Respondent violated Condition #3 and Condition #6.
Condition #8 required Respondent to reimburse the LFCP within 60 days. (Jt. Ex. 2, p.
7). The LFCP did not receive payment for more than two years and only after ODC inquired as
Respondent admitted that he did not consider Mr. Maletesta as his practice monitor. (Tr.
at 147, 148).
to whether Respondent complied with Condition #8. (Jt. Ex. 4 & 7). Therefore, the Board finds
that Respondent violated Condition #8.5
Respondent seeks to excuse his lack of compliance, claiming (1) that he thought
ODC -who Respondent never notified that he was working-would provide him a practice
monitor; and (2) that the LFCP did not sent him an invoice with instructions as to where to
submit payment, such that the sixty days mentioned in Condition #8 never started to run.
Respondent thereby claims he did not have the required mental state to violate Procedural Rule
7(c). Specifically, Respondent cites a contempt order case admittedly requiring “will]idness or
conscious disregard” of a court order and claims that finding him liable for “mere technical
violations” would be inconsistent with historic practice of Delaware courts when enforcing Court
orders. Respondent Opening Brief at 3-4 (citing Mitchell Lane Publishers, Inc. v. Rasemas, C.A.
No. 9144-VCN, 2014 WL 4804792 (Del. Ch. Sept. 26, 2014)).
ODC, on the other hand, argues that Procedural Rule 7(c), by its terms, does “not require
proof of a lawyer’s mental state and the Supreme Court has never required proof of a
respondent’s mental state to establish a violation of these rules.” ODC Answering Memorandum
on Liability and Sanctions at 7. We need not resolve the dispute as to whether proof of a
lawyer’s mental state is required to establish a violation of the Procedura.l Rule 7(c) (or Rule
8.4(d)), or, if so required, the particular mental state required, because, even if the standard relied
upon by Respondent is applicable, ODC has established by clear and convincing evidence that
The panel notes that the LFCP invoice was dated June 7, 2017, but was not stamped as
paid by the LFCP until August 17, 2017.
Respondent acted with “willfulness” and “consciously disregarded” the terms of his prior
disciplinary sanction giving rise to a violation of Procedural Rule 7(c).6
The Delaware Supreme Court has addressed the concept of “willful ignorance” in the
context of an ethical violation. In re Martin, 105 A.3d at 975 (Del. 2014). In In re Martin, the
Supreme Court found that there was substantial evidence in the record to support a finding of
Martin’s willful ignorance Id. In that case, the Court found that Martin knew that Feuerhake, a
suspended lawyer, was working for him 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. Id. The Court explained that 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. Id. The Court reasoned: “Martin knew or
intentionally remained ignorant of this Court’s order suspending Feuerhake horn practicing law.
His admitted intentional ignorance of the Court’s order should not absolve him of responsibility
for complying with its terms.” Id. Accordingly, the Court held that Martin knowingly violated
the Rules as a result of his “willful ignorance.” Id.
As in Martin, Respondent’s conduct here demonstrates at least willful ignorance.
Respondent no doubt had actual knowledge of the private admonition conditions When
Respondent was seeking transfer to active status and in resolving his five disciplinary cases,
Respondent actively participated in drafting the stipulation of conditions ODC requested the
PRC to authorize a private admonition with the same conditions as those ordered by the Court
Based on relevant precedent as discussed herein, we find the Respondent even acted
“knowingly” because in the disciplinary context, the Supreme Court has equated “willful
ignorance” to “knowledge.” In re Martin, 105 A.3d 967, 975 (Del. 2014).
upon Respondent’s reinstatement to active practice with the exception of reimbursement to the
LFCP. !n re Koyste, 111 A.3d 581, 586 (Del. 2015) (lawyer who actively participated in drafting
terms of protective order and acquiesced to terms had actual knowledge of the terms of the
order). There is no evidence in the record that Respondent raised questions regarding the
implementation or compliance with the conditions, and there is no evidence that Respondent
raised any concerns regarding ambiguity. Respondent again reviewed the conditions prior to
accepting the private sanction (Tr. at 108-09).
Knowing of these conditions, Respondent was not at liberty to remain willfully ignorant
as to whether he was in compliance or consciously disregard any attempt to comply with them.
At a minimum, once a quarter passed without him being assigned a practice monitor at the time
his quarterly report was due, he should have consulted ODC. Instead, he took a “head in the
sand” approach and did not ask for ODC’s consent to a practice monitor. His decision to not
consult ODC is not excused because ODC had taken a more active role in assigning a receiver
when he went to disability status. One would expect ODC to have a more active role in selecting
a receiver for a lawyer moving to disability stems as compared to a lawyer who has returned
from disability status and by his own account was ready to “retum to a productive work
lifestyle.” (ODC Ex. 4 p. 3).
Respondent argues that even Ms. Waldhauser understood that ODC would provide the
name of a practice monitor to Respondent: “I believe that it was ODC that would be setting that
up and the reports would go direct|y, as in, generally, other matters, go directly to ODC, and that
was not part of my monitoring.” ('1` r. at 137.). Even if you accept as true Respondent’s
understanding that ODC would select the practice monitor merely because Ms. Waldhauser had a
similar view (never communicated to Respondent), that is no defense. Exercising conscious
disregard, Respondent never notified ODC that he was employed. There was no need for a
practice monitor if Respondent was unemployed This is merely another example of
Respondent’s “head in the sand” approach in failing to comply with his conditions
The Board also rejects Respondent’s argument that that he did not act willfully or
consciously disregard Condition #8 when the conditions clearly provided that payment was due
within 60 days If he had a question regarding what “within 60 days meant” he should have
asked. See HoI_/kld, 74 A.3d 608 (Court rejected “rnistake” as a defense to violation of
Procedural Rule 7(c)). This conduct, like Mr. Martin’s, shows, at a minimum, that Respondent
“remained ignorant” and would even support a finding of a “knowing” violation of Procedural
Rule 7(c). In re Martin, 105 A.3d at 975 (finding a knowing violation of the Rules where
attorney remained ignorant of court’s order suspending another lawyer from practicing law); see
also In re Stull, 2009 WL 4573243 (Del. 2009) (“head in the sand” approach to obligations
without any particular objective was knowing conduct); In re Nadel, 82 A.3d 716, 722 (Del.
2013) (failure to determine any limits on pre-litigation assistance non-Delaware lawyer thought
he could provide when “he had every opportunity to learn this inforrnation” supported a finding
cfa knowing violation).
Regardless, Respondent’s failure to inform Mr. Malatesta of the conditions of his
employment is an independent and knowing violation of Condition #3 that Respondent cannot
blame on ODC or anyone else. Respondent’s testimony, supported by the testimony of Mr.
Malatesta and Ms. Christopher and documentary evidence, is clear and convincing evidence of
Respondent’s violation of Procedural Rule 7(c).
10
B. Rule 8.4(d).
The Supreme Court has consistently held that a lawyer engages in conduct prejudicial to
the administration of justice in violation of Rule 8.4(d) when that lawyer fails to satisfy a
condition of a disciplinary sanction. See Woods, 143 A.3d at 1226 (Court found lawyer’s failure
to comply with a pre-certification condition in a private disciplinary sanction was prejudicial to
the administration of justice in violation of Rule 8.4(d)); see also Holfeld, 74 A.3d at 608 (same);
In re Feuerhake, 89 A.3d 1058 (Del. 2014) (knowingly violating suspension order is prejudicial
to the administration of justice); In re Davis, 43 A.3d 856 (Del. 2012) (same).
As noted above, Respondent argues that the Board should find no violation of Rulc 8.4(d)
because his misconduct was not willful or done with a conscious disregard. As indicated above,
while we need not address the legal issue of whether a violation of Rule 8.4(d) requires
willfulness or conscious disregard, we conclude that there was a violation of Rule 8.4(d)
because, as discussed above, we find that Respondent knowingly violated the condition of his
disciplinary sanction requiring him to inform employers of the conditions of his reinstatement
and acted with a conscious disregard or willful ignorance in respect of his requirement to obtain
a practice monitor and reimburse LFCP, Therefore, we lind that Respondent engaged in conduct
prejudicial to the administration of justice under the teachings of Woads, Halfeld, Feuerhake and
Davis.
We also reject Respondent’s argument that we should not find a violation of Rule 8.4(d)
because his conduct did not involve “violence, dishonesty, breach of trust or serious interference
with the administration of justice." We disagree and find that a violation of a Court order
imposing the sanction of a private admonition with conditions on a lawyer’s practice of law
involves a serious interference with the administration ofjustice. Such a finding is supported by
Wood.r, HoIfeld, Feuerhake and Davis.
l 1
IV. PUBLIC REPRIMAND IS THE APPROPRIATE SANCTION FOR
RESPONDENT’S VIOLATIONS.
Delaware precedent and the ABA Standards support public reprimand with probation and
conditions as the appropriate sanction. “'I'he objectives of the lawyer disciplinary system [in
Delaware] are to protect the public, to protect the administration of justice, to preserve
confidence in the legal profession, and to deter other lawyers &om similar misconduct."
Fountain, 878 A.2d at 1173. The focus of the attorney discipline system in Delaware is not on
the lawyer, but rather on the danger to the public that is ascertainable from the attomey’s record
of professional misconduct See In re Hull, 767 A.2d 197, 201 (Del. 2001) (“In Delaware, the
paramount issue in any attorney discipline matter is the danger to the public that is ascertainable
from an attomey’s record of professional misconduct.”).
To further the objectives of the disciplinary system and to promote consistency and
predictability in the imposition of disciplinary sanctions, the Court looks for guidance to the
four-factor test established by the ABA Standards: (l) the ethical duties violated by the lawyer;
(2) the lawyer’s mental state; (3) the extent of the actual or potential injury caused by the lawyers
misconduct; and (4) the existence of aggravating and mitigating factors. Fountain, 878 A.2d at
1173. The first three factors lead to a preliminary determination of the appropriate sanction. The
Board then reviews the particular aggravating and mitigating circumstances in the case to
determine if an increase or decrease in the sanction is justified In re Steiner, 817 A.2d 793, 796
(Del. 2003). An analysis of the ABA factors and Delaware precedent lead the Board to conclude
that a public reprimand with probation and conditions is the appropriate sanction.
A. Respondent violated ethical duties owed to the legal system in the legal
profession
Violations of Procedural Rule 7(c) and Rule 8.4(d) breach duties owed to the legal
system and the legal profession ABA Standards, Theoretical Framework, p. 5. The ABA
12
Standards state: “Lawyers are officers of the court, and the public expects lawyers to abide by
the legal niles of substance and procedure which affect the administration of justice." ABA
Standard 6.0. Lawyers are expected to refrain from conduct interfering with the administration of
justice. !d.
ABA Standards addressing conduct prejudicial to the administration of justice provide:
“6.23: Reprimand 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.”
ABA Standard 7.0 addresses violations of duties owed to the profession and provides, in
relevant part: “7.3: Reprimand 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.”
B. Respondent Acted Knowingly
The Panel finds that Respondent acted knowingly when violating Procedural Rule 7(c)
and Rule 8.4(d). The Delaware Supreme Court has stated:
Under the [Delaware Lawyers’ Rules of Professional Conduct],
“knowing” misconduct denotes “actual knowledge of the fact in
question.” Because a person is presumed to intend the natural
consequences of his or her actions, “knowing” misconduct may be
inferred from the circumstances Moreover, in the disciplinary
context, we have equated “willful ignorance” to “knowledge.”
ln re Martin, 105 A.3d at 975. The Court in In re Martin held that a lawyer acts “knowingly”
when acting with “willful ignorance.” As discussed in detail above, Respondent acted, at a
minimum, with “willful ignorance” and, thereby, acted knowingly.
13
C. Respondent’s Misconduct Caused Potential Harm
“‘Injury’ is harm to a client, the public, the legal system, or the profession which results
nom a lawyer’s misconduc " ABA Standards, Def`initions. ‘“Potential injury’ is the 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 which, but for some intervening factor or event, would probably
have resulted from the lawyer’s misconduc ” ABA Standards, Definitions.
Respondent’s failure to obtain a mutually agreed upon practice monitor who submitted
quarterly reports to ODC had the potential for injury. Respondent’s disciplinary sanction and
practice monitor condition specifically stemmed from Respondent’s failure to competently and
diligently represent clients and failure to communicate with clients. The practice monitor
condition was imposed to address the risk of reoccurrence of client harm.
D. The Aggravating and Mitigating Factors
The applicable ABA aggravating factors? are (1) Respondent’s prior disciplinary history
(2015 private admonition); (2) a pattern of misconduct; (3) refusal to acknowledge the wrongful
nature of his conduct; and (4) substantial experience in the practice of law.s
Aggravating factors include the following: (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 niles or
orders of the disciplinary agency; (f) submission of false evidence, false statements, or
other deceptive practices during the disciplinary process; (g) refusal to acknowledge
wrongful nature of conduct; (h) vulnerability of victim; (i) substantial experience iii the
practice of law; (j) indifference to making restitution; (k) illegal conduct.” ABA
Standard 9.22.
The Panel is mindful of Respondent’s factual assertions in his Reply Brief that are not
supported by the record. For example, Respondent several times states that ODC
informed Respondent that it would provide Respondent with the name and contact
information of a practice monitor. See Respondent’s Reply Brief at 2-4. Respondent
provides no citation to the record for any of these statements and his contentions are not
supported by the record. The panel is also mindful of Respondent’s statement in his
submission to the PRC that he did discuss each of the terms in great detail with Mr.
14
Respondent’s prior disciplinary history, coupled with his refusal to acknowledge he
violated the Rule, and instead arguing that ODC was to blame based on factual assertions in his
Reply Brief that are not supported by the record, warrant a public reprimand with probation and
conditions
E. Delaware Precedent and the ABA Standards Support Public Reprimaod
with Probation and Conditions as the Appropriate Sanction
Public reprimand with probation and conditions is consistent with the Supreme Court’s
disciplinary precedent and ABA Standards See Woods, 143 A.3d at 1226; Holjéld, 74 A.3d at
607; In re Wilson, 886 A.3d 1279 (Del. 2005); In re Mar!in, 35 A.3d 419 (Del. 2011).
Respondent knowingly violated multiple conditions of his private sanction while on disciplinary
probation. A second private reprimand is unlikely to have any real effect and certainly would
not further the objectives of the disciplinary system “to protect the public, to protect the
administration of justice, to preserve confidence in the legal profession, and to deter other
lawyers from similar misconduct.” Fountain, 878 A.2d at 1173. See also ABA Standard 8.4
Conimentary (“An admonition is a sanction which should only be imposed in cases of minor
misconduct, where the lawyer’s acts cause little or no injury to a client, the public, the legal
system, or the profession, and where the lawyer is unlikely to engage in further misconduct
Lawyers who do engage in additional similar acts of misconduct, or who violate the terms cfa
prior disciplinary order, have obviously not been deterred, and a more severe sanction should be
imposed.").
(. . . continued)
Maletesta which contradicts his testimony that he did not discuss with Mr. Maletesta the
practice monitor and quarterly report condition. (Jt. Ex. ll, p. 4; Tr. at 101, 151). While
the Panel has not taken this into account as an aggravating factor under (f), the Panel is
troubled by such events
15
All of the private sanctions in ODC File Nos. 111901-B and 108318-B, Board Case Nos.
1 and 2, 2004 and ODC File No. 112169-B on which Respondent relies are distinguishable in
that none of those cases involve a violation of Procedural Rule 7(c) while the lawyer was on
disciplinary probation as noted in the ODC Answering Memorandum on Liability and Sanctions
Respondent had an obligation to “strictly comply with the conditions imposed on him
with his earlier private admonition.” Holfeld, 74 A.3d at 607. The Board finds that a public
reprimand with a two-year probation and conditions is the appropriate sanction. The appropriate
conditions are:
. Respondent is prohibited from engaging in the solo practice of law;
. Respondent is prohibited from acting as managing partner in charge of
books and records of a firm;
. Respondent shall notify any employer of these conditions;
. Respondent shall seek treatment with Alice R. O’Brien, LPCMH or
alternate licensed mental health treatment provider until such time as Ms.
O'Brien or an alternate licensed mental health treatment monitor
determines such treatment to no longer be recommended, such
determination to be communicated to ODC;
. Respondent shall execute a formal monitoring agreement with DE-LAP
and comply with all conditions deemed appropriate by DE-LAP;
. Respondent shall meet on a montiin basis with a mutually agreed upon
practice monitor who will closely review Respondent’s legal work and
cases This practice monitor shall provide quarterly reports to ODC of the
Respondent’s compliance with monitoring;
. Respondent shall report any violations of the conditions of his probation to
ODC directly;
. Respondent shall cooperate promptly and fully with ODC in its efforts to
monitor compliance with his conditions of probation Respondent shall
cooperate with ODC’s investigation of any allegations of unprofessional
conduct which may come to the attention of ODC. Upon request of ODC,
Respondent shall provide authorization for release of information and
documentation, to the extent not granted above, to verify compliance with
the conditions of probation;
16
9. Respondent shall pay cost of the disciplinary proceedings; and
10. Respondent shall notify ODC of any changes in his employment status
within 10 days after such change in employment status
l 1932508.2
17
Datcd: May 25, 2018
Respeetfully submittcd,
gains
tricia 0. Vella (Bar No. 3529)
Gary W. Fcrguson
Respectfully submitted,
Mlla (Bar No. 3529)
Jcssica Zeldin (Bar No. 3558)
Datcd: May 25, 2018