Matter of McCarthy

IN TI-IE SUPREME COURT OF TI-[E STATE OF DELAWARE
IN THE MATTER OF: §
§ No. 229, 2017
DANIEL J. McCARTHY, §
§ Board Case No. 2011-055-B
Respondent. §
Submitted: October 18, 2017
Decided: October 23, 2017
Before VALIHURA, VAUGHN, and SEITZ, Justices.
PER CURIAM:
This 23"' day of October 2017, it appears to the Court that the Board on
Professional Responsibility has filed its Report and Recommendation in this matter
under Rule 9(d) of the Delaware Lawyers’ Rules of Disciplinary Procedure. The
Board’s Report recommends that the Respondent, a Pennsylvania lawyer who was
admitted pro hac vice by the Delaware Superior Court to represent a doctor in a
medical malpractice action,E be disbarred for his intentional misconduct that
included the failure to disclose altered medical records and the failure to disclose
' This Court has authority to discipline non-Delaware lawyers Who provide legal services in this
State. See In re Nadel, 82 A.3d 716, 719-20 (Del. 2013); In re Kr'ngsley, 950 A.2d 659, 2008
WL 2310289 at *3 (Del. 2008) ('I``ABLE); ln re Tonwe, 929 A.2d 774, 781 (Del. 2007). This
includes lawyers admitted pro hac vice. See. e.g.. Del. Supr. Ct. R. 7l(b)(ii); Del. Super. Ct. R.
90.l(b)(ii). Further, in In Re Tonwe, this Court stated that:
“We assume that the Board did not recommend disbarment, as such, on the
basis that one has to be a member of the bar before one can be disbarred. The
Rules do not specifically address this issue, but in at least one other
jurisdiction, disbarment ‘when applied to an attorney not admitted . . . to
practice law, means the unconditional exclusion from the admission to or the
exercise of any privilege to practice law in this State.’ We adopt that
definition, and conclude that disbarment is the appropriate sanction . . . .”
929 A.Zd at 781 (citations omitted).
his client’s fraudulent conduct and to correct her false testimony. The Board
concluded that the “Respondent’s actions in this matter were at best dishonest and
at worst criminal which resulted in actual and potential harm to the litigants, the
judicial process and the public.”2
The Respondent, through counsel, filed objections to the Board’s findings
and recommendation of disbarment The Offlce of Disciplinary Counsel
responded to the objections, and the Respondent replied. Oral argument was held
on October 18, 2017.
The Court has reviewed the matter under Rule 9(e) of the Delaware
Lawyers’ Rules of Disciplinary Procedure and concludes that the Board’s Report
should be approved The Board’s recommendation of disbarment is appropriate
under these circumstances and, contrary to the Respondent’s assertions, is
consistent with the Court’s precedent.-"
NOW, THEREFORE, IT IS ORDERED that the Board’s June 6, 2017
Report (attached hereto) is ACCEPTED. Daniel J. McCarthy is hereby
2 In re McCarthy, No. 2011-055-B, at 24 (Del. Bd. Prof. Resp. June 6, 2017). Although the
Board found, among other facts, that the “Respondent assisted his client with perpetrating a
fraud” (Report at 9), the Board’s Report is limited to addressing the Respondent‘s conduct and
does not address whether there was a wider-ranging “conspiracy,” as argued in the Office of
Disciplinary Counsel’s responsive memorandum on appeal. We similarly limit our conclusions
to the Respondent’s conduct.
3 See, e.g., ln re Sullivan, 2014 WL 982500 (Del. Mar. 7, 2014); In re Sanclemen!e, 2014 WL
644437 (Del. Feb. 14, 2014); In re Davis, 43 A.3d 856 (Del. 2012); In re Clyne, 581 A.2d 1118(Del. 1990).
DISBARRED. He is unconditionally excluded from the admission to or the
exercise of any privilege to practice law in this State.4 The contents of the Board’s
Report shall be made public. The Office of Disciplinary Counsel shall disseminate
this Order in accordance with Rule 14 of the Delaware Lawyers’ Rules of
Disciplinary Procedure. The Respondent shall pay the costs of these disciplinary
proceedings, pursuant to Rule 27 of the Delaware Lawyer’s Rules of Disciplinary
Procedure, promptly upon presentation of a statement of costs by the Offlce of
Disciplinary Counsel.
4 See In re Tonwe, 929 A.2d at 781.
EFiled: Jun 06 2017 02:03P -S=
Fi|ing |D 60688741
Case Number 229,2017
SERGOVIC CARMEAN WEIDMAN
;I'_ MCCARTNEY & OWENS, P.A. _j:_
Shannon Carmean Bur|on
john A. Sergov'lc,]r.
Deir¢lre A. McCartney
Website: www.sussexattomey.com
oavid 1. wadman
Shannon R. Owens Email: Deirdre@sussexattnmey.cum Seth L. Thompson
Elizabelh L Soucek George B. Smilh, of Counsel
June s, 2017 m _-_"3
Delaware Suprerne Court §- ``,~. jj :.:
The Renaissance Centre, Suite 509 :``I °‘~' :>- __|'_;``
405 Nonh lung seed &``.. § h c:,f.~‘;
wilmington DE 19301 §§T§‘ ’- ?ri
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RE: BOARD ON PROFESSIONAL RESPONSTBILITY §
IN THE MATTER OF A MEMBER OF TH'E BAR OF THE SUPREME COU``RT 0
DELAWAR.E, DAN[EL I. MCCARTHEY.
BOARD CASE NO. 2011-055-B
To whom it may concem:
Enclosed is the fully executed Report and Recommendations of the Hearing Panel
concerning the above-captioned matter.
Should you have any questions, please do not hesitate to contact me.
lSincen‘:ly,
ieirdre A. WMc(;znl:l§/EW
DE Bar No. 4290
406 South Bedford Street. Suile l. P.O. Box ?Sl. Georgelown. Delaware l9947
Phone (302) 855-1260 ¢ Fax (302) BS§-IZTO
Phone (302) 855-0551 * Fax (302) 855-0553
BOARD ¢)N PROI"ESS|ONAL RESPONS l B l LITY
OF THE SUPREME COURT ()F'l``l'lE STATE OF DELA WARE
ln the Maller ol' a j
Mcmbcr o|' lhe Bar ol' ) C``ONFIDENT!AL
the Supremc Court ol`` ) ;_._.: __'
Delawarc: ) Board Case No. 201 l:~,t).§'S-B``-S .``"_.'
1 F-"`` §1;1','
DAN|EL .l. MCCARTI~|Y. ) '_"._-:'_-j ",' _“_"t';'
Respondan ) §§C.j`` "-" i-.-J,“
’ §§ )> ``“~
xii »:-.5 '§,‘
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REPORT AND RECOMMENDA'I'ONS OF TI~[E HEARING PAI§'EL §
l"cnding before a panel ol`` the Board on Prol'essional Responsibility (the “Board``°) is a
Petilion |'or Discipline |``ilcd by thc Oft``tce of Disciplinary Counsel (the °'ODC") in Board Case
No. 200|-055-8 (lhc “Petition") against Daniel .l. McCarthy. Esquire (“Respondent"). a member
of the Bar of the Supreme Court of the Statc of Pennsy|vania. The Pctition alleged violations ol``
Rules 3.3 (b), 3.4 (a), 3.4 (c). 4.1 (b), 8.4 (c) and 8.4 (d). Respondent. through his counsel.
Charles Slanina, Esquire. filed an Answer to the Petition ( the “Answer"). On June l‘l. 20|6.
ODC filed an amended petition for discipline On .luly 6. 2016. Respondent filed an answer to
the amended petition denying the counts alleged in the petition.
On November .‘?.. 20|6, a panel of the Board on Professional Responsibility, Deirdre A.
McCartncy. Esquire. Chair. D. Benjamin Snyder. Esquire and Ms. Louise Roselle (“the Panel")
held a liability hearing on a petition for discipline filed by the Off``lce of Disciplinary Counsel
(ODC) in the above-captioned matter. Jennifer Kate Aaronson. Esquire, presented the petition
for ODC. Charles Slanina. Esquire represented Daniel .l. McCarthy, (“Respondent"). The Panel
found that Respondent violated Rules 3.3 (b), 3.4 (a). 3.4 (c). 4.1 (b), 8.4 (c) and 8.4 (d) of the
Delaware Lawyers' Rules of Professional Conduct ('°Rulcs"). A sanction hearing was held on
Decembcr ll. 2016.
Procedure l!ackgrnund
On October 24. 2016. prior to the hearing, Counscl for ODC. Respondent and panel chair
held a pre-hearing teleeonfcrcnce to discuss the upcoming hearing. At the request ot``thc
Respondent the hearing was bifurcated and the liability portion ol" the hearing and the sanctions
portion ot`` the hearing were scheduled on separate days. At the liability portion of the hearing on
November 2, 20|6, Counsel for Respondent requested leave to amend his answer to the amended
petition l``or discipline. ODC did not object to this request The panel granted Respondent's
request pursuant to Rule 15 (b) of the Rules of Disciplinary Procedure. At the Liability portion of
the Hcaring. the Panel received into evidence ajoint exhibit book. The Panel also heard
testimony t``rom the Respondent and l(enneth Roseman. Esquire. Following the liability portion
of the hearing. the panel concluded that Respondent had violated all of the counts in the amended
petition for discipline. At the sanctions portion ot' the hcaring. the Panel received into evidence
an additional joint exhibit book. The panel also heard evidence from Kenneth Roseman, Esquire.
Frank Murphy. Esquire. Kristy McCabe. Esquire. .lames Zeris, Esquire. .lay E. Mintzer. Esquire.
Stephen Levda. .lr. and Respondent. The sanctions portion of the heating was then conducted on
December 2 l . 20|6.
After the sanctions portion of the hearing. at the request of the hearing panel. the record
was supplemented by post hearing memorandum on sanctions by Ms. Aaronson on February 14,
2017; Mr. Slanina on March 21. 2017; and Ms. Aaronson on April 3, 2017. The record was
closed on April 3. 2017.
For the reasons stated below. the Panel linds that Respondent violated Delaware
Rules 3.3 (b), 3.4(;1). 3.4 (e). 4.| (b), 8.4 (c) and 8.4 (tl) by failing to take reasonable remedial
measures by failing to disclose to the tribunal his client``s criminal and/or fraudulent conduct; by
unlawfully concealing a document having potential evidentiary value by falling to disclose the
existence ol' the notes; by knowingly disobeying an obligation under the rules ot'a tribunal: by
failing to disclose a material fact when disclosure was necessary to avoid assisting a fraudulent
act by a client: by engaging in conduct involving dishonesty. fraud. deceit or misrepresentation
by failing to provide the notes to the plaintiff. plaintiff`` s attorncy. or the tribunal; and by
engaging in conduct that was prejudicial to the administration of justice by failing to disclose the
notes and the panel recommends a sanction of disbarment.
Facts
The record in this proceeding consists of the testimony of witnesses at the hearing,
exhibits submitted in connection with the hearing and other submissions of the parties. The
transcript of the liability portion of the hearing is cited hereinafter. as "Tr. at At
the liability portion of the hearing, the parties admittedjoint exhibits. The joint exhibits admitted
at the liability portion of the hearing are cited hereinafter, as °‘Ex at___.°’ The transcript of
the sanctions portion of the hearing is cited hereinafter. as “S.H. Tr. at___." The parties
admitted joint exhibits at the sanctions portion of the hearing. The joint exhibits admitted at the
11
sanctions portion of the hearing are cited hereinafter, as “S.H. Ex. At
Respondent was admitted to the Pennsylvania bar in 1984. S.H. Tr. a184. Respondent
was admitted pro hac vice to represent Dr. Phyllis James in connection with a medical
negligence claim in Wilson v. .lames. See Tr. at 93 and Ex. 25. One of the issues in the case was
the extent of the jaundice on the baby at thc time he was examined by Dr. .lames. Tr. 94-96. The
central issue in the case was the care that Dr. fumes rendered to the baby on July 2 l, 2006. Tr. at
97.
Duriug the litigation. plaintist counsel (Kenneth Roseman. Est|uirc) served Respondent
on behalf of Dr. .lames with discovery requests. Tr. at 27. Plaintiff``s interrogatories asked “Have
you signed any written statements which you have made concerning this matter?". Tr. at 28. On
November l2. 2007. Respondent filed responses which indicated that there were no written
statements other titan those in the medical chart. Tr. at 28 and Ex. 5b. Plaintiff"s request for
production asked for “copies of any and all writings in your possession or available to you
identified or referred to in any way in your answers to Plaintiff"s interrogatories." Tr. at 28. On
November 12. 2007. Respondent filed responses and enclosed a copy of the medical chart. Tr. at
29 and Ex. at 5c. Respondent on behalf of Dr. lames never supplemented the discovery
responses. Tr. at 30. Respondent received the altered medical records from Michelle Montague’s
counsel before the deposition of Dr. James on September 4. 2008. Tr. 98-99 and Ex. 9.
Plaintiff"s counsel subsequently represented Dr. James in a bad faith and legal
malpractice claim against the insurance company and Respondent. Tr. at 32. During discovery
in that |itigation, P|aintiff"s counsel learned for the first time about the existence of the altered
medical records that were never produced during the medical negligence litigation Tr. at 33-34.
fn the first altered record. Michelle Montague (Dr. James' physician assistant) changed the
location of tlte yellowing on the baby from the abdomen to the stemum. See. Ex. l. Ex. 2 and Tr.
at 34-35. ln the second altered record, Dr. J ames added a sentence indicating that she had
instructed the mother to monitor and call the office immediately with any changes because an
older sibling had been treated forjaundice and the baby was at increased rislt. See Ex 3, Ex. 4
4
and Tr. at 35_36. The altered medical records were ol`` significant evidentiary value from tlte
perspective ofplainti``ll"s counsel and impacted the amount of the jury verdict. Tr. at 36-39.
Respondent agreed that the care rendered by Dr. Jarnes on July ?.l. 2006 was tlie crux of the
case. Tr. itt 97.
Dr. James testified at her deposition that the ofl'ice records produced in her discovery
responses were her ol'iice records even though she had previously reviewed the altered records
with her counsel. Ex. 9 at |4 (5?.:53). She further testified that she hudn't reviewed anything
other than the medical chan in preparation for the deposition. See Tr. at IZO and Ex 9 at 2 (2:3).
Respondent testified that he did not believe that Dr. James‘ testimony was inaccuratc. Tr. at l?.l.
Dr. james testified at her deposition that she didn``t know whether or not Miche|lc Montague``s
note was her original note even though she had reviewed the altered note with her counsel prior
to her deposition. Ex. 9 at 18 (66:67). Dr. l ames further testified that her office note was written
on July 26, 2006 at 4:00 p.m., even though she added the last sentence at a later date. Tr. at | 16-
I l9. Respondent testified that he did not believe his client's statement was misleading Tr. at
l 18. Respondent was also present at the deposition of Miehelle Montague and did not correct
the deposition transcript or update discovery responses when she testified that the office records
produced were a complete record of her examination. Tr. at 3-4.
Respondent did not correct the pretrial stipulation which stated that the exhibits included
the office records of New Castle Fan'iily Care. Ex. 22. The office records produced during
discovery and admitted during trial did not include the altered medical records. Tr. at 58. At trial.
Dr. .lames testified that the yellowing was not in the face and had not progressed to the sternurn.
See Tr. at til-62 and Ex. 24-B at 95-97. Dr. .lames further testified that she had given the mother
instructions to call her if the condition worsened due to the family history of jaundiee. See Tr. at
5
ftl-64 and Eit. 24-B at fl)l). Plaiiitil' f' s counsel believes that Dr. .lames testimony regarding the
location of the jaundice and the instructions to the mother negatively impacted the jtiry's verdict.
Tr. a165-66. Respondent also highlighted the niother's failure to follow Dr. .laines' instructions
iii his closing argument. Tr. at 67-69. Plaintif``l``s counsel believes that if the altered medical
records were produced it would have impacted the outcome of the trial and the verdict. Tr. at 78-
79.
Respondent testified during the hearing that he did not think that the altered medical
records needed to be produced at the time of the litigation. Tr. at 100. Respondent further
testified that he now would have produced those records. Tr. at 100 and l28. Respondent
testified that he was aware of what Rule 26 says regarding the requirement to supplement
responses. but did not think that duty included the duty to provide the altered medical records.
Tr. at l07~l08. Respondent testified that he also did not believe that it was necessary to produce
them before Dr. .Iames’ deposition. Tr. at l ll-l 12. Respondent conceded that thc office visit (the
subject of the altered records) was the primary issue in the case. Tr. at l l4-l 15. Respondent
testified that one of the reasons why he did not produce the altered records was that it would
have hurt his client's credibility. Tr. at 128. Respondent had over a year between when he
acquired the records and trial on March 22. 20|0 to produce the records. S.l-l. Tr. at 155-156 and
Ex. 24.
Standard of Proof
The allegations of professional misconduct set forth in ODC's petition must be
established by clear and convincing evidence. (Disc. Proc. Rule 15 (c))
Violations of the Rules
ODC's petition alleges that Respondent violated six separate rules of the Delaware
Lawyer's Rules of Professional Conduct (the “Rtiles"). The panel finds that Respondent violated
each Ru|e alleged in the petition for the reasons which follow:
Count One: Respondent violated Rule 3.3 (b) by failing to take reasonable remedial
measures by failing to disclose to the tribunal his client's criminal and/or fraudulent
conduct.
Rule 3.3 (b) provides: "(b) A lawyer who represean a client in an adjudicative
proceeding and who knows that a person intends to engage. is engaging or has engaged in
criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures.
including. if necessary, disclosure to the tribunal." Respondent was aware of medical records
altered by his client. yet failed to produce them during discovery. Tr. 98-99. Respondent bad
reviewed them with his client prior to her deposition, yet allowed his client to testify falsely at
her deposition concerning the medical records. See Tr. at 120. Ex 9 at 2 (2:3). Ex. 9 at 14
(52:53). Respondent further allowed his client to testify falsely at trial concerning the medical
rewrite see Tr. 3163-64. Ex. 24-3 at 96-97 ana 100 ana s.i-i. Tr. at ias.'
' Perjury is defined under Delaware law as follows: Peijury in the third degree: “A person
is guilty of perjury in the third degree when the person swears falsely. Peijury in the third
degree is a class A misdemeanor." ll Del. C. § 1221. Perjury in the second degree: “A
person is guilty of perjury in the second degree when the person swears falsely and when
the false statement is:
t l) Made in a written instrument for which an oath is required by law; and
(2) Made with intent to mislead a public servant in the performance of official functions;
and
(3] Material to the action, proceeding or matter involved. Petjury in the second degree is
a class F felony.” ll Def. C. § 1222. Peijury in the first dcgree: " person is guilty of
perjury iri the first degree when the person swears falsely and when the false statement
consists of testimony and is material to the action, proceeding or matter in which it is
made. Peijury in the first degree is a class D felony.” 11 Del. C``. § 1223.
7
Respondent did not disclose his client's false testimony during the deposition. following the
deposition. prior to trial or at tria|. Respondent failed to take reasonable remedial measure to
disclose his client's criminal and/or fraudulent conduct to the tribunal.
Count 'l``wo: Respondent violated Rule 3.4 la) by unlawfully concealing a document having
potential evidentiary value by failing to disclose the existence of the notes.
Ru|e 3.4 (a) providcs: “A lawyer shall not (a) unlawfully obstruct another party‘s access
to evidence or unlawfully altcr. destroy or conceal a document or other material having potential
evidentiary value. A lawyer shall not counsel or assist another person to do any such act.°'
Respondent unlawfully concealed the altered medical records by failing to disclose the existence
of the altered medical records despite being aware of the documean potential evidentiary value.
S. l~l. Tr. at 136-137. Notably. the altered medical records were never produced by Respondent.
Plaintiff's counsel learned for the first time about the altered medical records from discovery
responses received from Preferred Professional lnsurance Company in the bad faith litigation
lawsuit. Tr. at 32-33. lt was clcar, however. that Respondent was aware during the course of tfie
medical malpractice lawsuit that the medical chan had been altered. Ex. at l l.
Count Three: Respondent violated Rule 3.4 (c) by knowingly disobeying an obligation
under the rules of a tribunal.
Rule 3.4 (c) provides “A lawyer shall not (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 was aware of the requirements of Rule 26 to supplement discovery
responses Despite being aware of the requirements Respondent intentionally failed to
supplement his discovery responses when he became aware of the existence of the altered
medical records. S. H. Tr. at 107.
Count Four: Respondent violated Rule 4.1 (h) by failing to disclose a material fact when
disclosure was necessary to avoid assisting a fraudulent act by tt client.
Rulc 4.| (h) provides “ln ilte course of representing a client a lawyer shall not |tiiowingly:
(lt) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or
fraudulent act by a client. unless disclosure is prohibited by Rule l.6." Respondent intentionally
failed to disclose the existence of the altered medical records. S. I~l. Tr. at 107. Respondent also
failed to correct his client's deposition and trial testimony when he knew that her testimony was
l``alse. S. l-l. Tr. at 106-107. 137-138. Respondent was aware that the treatment the baby received
on july ?.6. 2006 was the crux of the case. Tr. at 97. Respondent was also aware as of September
2. 2008 and before his clienl``s deposition that the medical records from .luly 26. 2006 were
altered. yet failed to disclose them at any point during the litigation. Tr. at 99-l00. Respondent
assisted his client with perpetrating a fraud by failing to disclose the existence of altered medical
records. a material fact in the medical malpractice action where the care provided was a central
issue in the case.
Count Five: Respondent violated Rule 8.4 (c) by engaging in conduct involving dishonesty,
fraud, deceit or misrepresentation by failing to provide the notes to the plaintiff, plaintifl"s
attorney, or the tribunal.
Rule 8.4 (c) provides: “It is professional misconduct for a lawyer to: (c) engage in
conduct involving dishonestly, fraud, deceit or misrepresentation." Respondent engaged in
conduct involving dishonesty. fraud. deceit or misrepresentation when he failed to disclose the
existence of the altered medical records throughout the course of the litigation. S. l-l. Tr. at 106-
107. l37-l38. Respondent intentionally failed to disclose the altered medical records and was
aware that the altered medical records would have made his client more culpable and would have
been supportive of Plaintiff’s case. Tr at 102-103. Respondent's conduct was dishonest and
deceitful.
(.``ount Six: Respondent violated Rule 8.4 (d) by engaging in conduct that was prejudicial to
the administration of justice by failing to disclose the notcs.
Rtt|c l~l.-l td) providcs: “It is professional misconduct for a lawyer to: td) engage ut
conduct that is prejudicial to the administration ol``justice." Respondent engaged in conduct that
was prejudicial to the administration of justice when he failed to disclose the existence ol`` the
altered medical rccords. S. H. at ll)'l. Respondent instead made the determination that the altered
medical records did not have any evidentiary value. despite his knowledge of discovery roles. S.
l-l. 'l'r. at l$tl.
Rationale for Recommended Sanction
At the l-learing. the ODC contended that the presumptive sanction in this matter is
disbarment. The Respondent. through his counsel, contended that the presumptive sanction in
this matter is a public reprimand. For the reasons which follow. the panel recommends that
Respondent be disbarred. ln making iLs recommendation. the Panel has utilized the four-part
framework set forth in the ABA Standards for imposing Lawyer Sanetions (1991 as amended
February 1992) (``°ABA Standards"), as required in la re Steiner, 817 A.2d 793. 796 (Del. 2003).
To promote consistency and predictability in the imposition of disciplinary sanctions, the
Delaware Supreme Court looks to the ABA Standards. See, !n re D¢mghr_v. 832 A.2d 724. 735-
736 (Del. 2003) (citations omitted). A preliminary determination of the appropriate sanction is
made by assessing the first three prongs of the tests (l) the ethical duty violated; (.'Z) the lawyer's
state of mind; and (3) the actual or potential injury caused by the lawyer's misconduct. See. la re
Sreiner. 817 A.Zd 793. 796 (Del. 2003). Once the preliminary determination is made. the fourth
prong addresses whether an increase or decrease in the preliminary sanction is justified because
of the presence of mitigating or aggravating factors. ld.
10
l. ’l``be Ethical Duties Violated
As previously recited. the ODC alleged. and the Panel determined that the Respondent
committed misconduct in violation of Prol``essional Rules of Conduct Rules 3.3 t b) thy failing to
take reasonable remedial measures by failing to disclose to the tribunal the client’s criminal
and/or fraudulent eonduct). 3.4 (a) (by unlawfully concealing a document having potential
evidentiary value by failing to disclose the existence ol`` the iiotes). 3.4 (c) (by knowingly
disobeying an obligation under the rules of a tribunal). 4.1 (b) (by failing to disclose a material
fact when disclosure was necessary to avoid assisting a fraudulent act by a client). 8.4 (c) ( by
engaging in conduct involving dishonesty. fraud. deceit or misrepresentation by failing to
provide the notes to the plaintitf. plaintist attomey, or the tribunal) and 8.4 (d) (by engaging iri
conduct that was prejudicial to the administration of justice by failing to disclose the notes)
Under the ABA Standards. this misconduct constituted violations of duties owed by the
Respondent to the public and legal system. Rules 3.3 (b), 3.4 (a}. 3.4 (e). 4.1 (b), 8.4 (c) and td)).
See ABA Standards 5.0 and 6.0.
2. State of Mlnd
The ODC contends that Respondent's state of mind was knowing and intentional. The
Respondent contends that the Respondent's state of mind was knowing. The Panel finds that the
Respondent‘s mental state was intentional. “Knowledge“ is the conscious awareness of the
nature or attendant circumstances of the conduct but without the conscious objective or purpose
to accomplish a particular result. ABA Standards. Definitions. “lntent" is the conscious
objective or purpose to accomplish a particular result. ABA Standards. Definitions. Respondent
intentionally chose not to disclose the existence of the altered medical records in order to protect
11
his client's credibility among other reasons. Tr. at 127-128. 152»l53. Respondent further
intentionally chose to avoid correcting his client``s false testimony at her deposition and at trial.
3. i\ctual or Potential Injury Caused by Respondent's Misconduct
The Pancl finds Respondent's conduct caused actual and potential harm to the Plaintil``f.
the Court. the legal system and the public. °°lnjiiry" is harm to the client. the public. the legal
system. or the profession which results from a lawyer's misconduct. ABA Standards.
Dct'initions. "Potential lnjury" is the harm to the 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 cvent. would probably have resulted from the lawyer's
misconduct. ABA Standards. Definitions. Respondent caused injury and/or potential injury to the
Plaintiff when he failed to take reasonable remedial measures by failing to disclose to the court
his client°s false deposition and trial testimony. by unlawfully concealing a document having
potential evidentiary value by failing to disclose the existence of the altered medical notes.
Thcrc was testimony from Plaintil``f's counsel that the altered medical records would have had
probable evidentiary value. Plaintili"s counsel further testified that the failure to disclose the
altered medical records likely impacted thc results of the trial and the verdict for the plaintiff.
Respondent caused actual and/or potential injury to the legal system and the public by
knowingly disobeying an obligation under the rules of a tribunal when he failed to supplement
his discovery responses and by failing to disclose a material fact when disclosure was necessary
to avoid assisting a fraudulent act by a client by failing to correct the deposition or trial
testimony of his client that he knew to be false. Respondent caused actual and/or potential injury
to the plaintiff, the legal system and the public engaging in conduct involving dishonesty. fraud.
deceit or misrepresentation by failing to provide the altered medical records to the plaintiff,
12
plaintist attorney. or the tribunal and by engaging in conduct that was prejudicial to the
administration of justice by failing to disclose die altered medical rccords.
Respondent°s actions resulted in actual or potential hami by wastingjudicial resourccs.
’l'liere was testimony that the case likely would have settled earlier had the altered medical
records been disclosed. As a result of the failure to disclose. a had faith/malpractice claim was
litigated and scttled. As a further result of the failure to disclose. a fraud/civil conspiracy case
was litigated and settled. Prior to both cases settling. the Court. litigants and attorneys involved
spent countless hours and funds litigating the claims.
4. Presumptive Sanction
ln the Panel's view. analysis of the ethical duties violated by the Respondent. the
Respondent's state of mind and the actual and potential for injury caused by Respondent’s
misconduct misc a presumptive sanction of disbarment. The ethical duties violated direct the
Panel to the following factors contained in the ABA Standards: 5.11. 6.1| and 6.21 for violations
of Rule 3.3 (b), 3.4(a). 3.4 (c). 4.1 (b), 8.4 (c) and 8.4 (d). Where. as in this matter, the conduct
involves acts with serious or potentially serious injury to a party, or causes significant or
potentially significant adverse effect on the legal proceeding, these provisions point generally to
a disbarment as an appropriate sanetion. See ABA Standards 5.11. 6.11 and 6.21. Disbarrnent is
generally appropriate when a lawyer engages in any other intentional conduct involving
dishonesty. fraud, deceit. or misrepresentation that seriously adversely reflects on the lawyer's
fitness to practice. ABA Standard 5.| l.
Disbarrnent is generally appropriate when a lawyer. with the intent to deceive the court,
makes a false statement, submits a false document. or improperly withholds material
13
information. and causes serious injury to a party. or causes a significant or potentially significant
adverse effect on the legal proceeding. ABA Standard 6.| l. Disbarrnent is generally appropriate
when a lawyer knowingly violates a court order or rule with the intent to obtain a benefit for the
lawyer or another. and causes serious injury or potentially serious injury to a party or causes
potentially serious interference with a legal proceeding The presumptive sanction must then
factor in the presence or absence of any mitigating or aggravating factors.
5. Aggravatlng and Mitlgatlng Faetors
Aggravating 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:
(l') submission of false evidenee. false statements, or other deceptive practices during the
disciplinary process;
(g) refusal to acknowledge wrongful nature of conduct:
(h) vulnerability of victim;
14
(i) substantial experience in the practice of iaw:
(j) indifference to making restitution;
(lt) illegal conduet, including that involving the use of controlled substances
(ABA Standard § 9.2?.)
A. Prior Di§gipliggg fogn§g§
There is no evidence in the record that this aggravating factor exists.
B. MMLMELMM
There is evidence in the record of a dishonest motive. Respondent withheld a portion of
the medical record which contained altered medical records made by his client. a physician.
whom he was defending in a medical malpractice case. When Respondent learned of the altered
records he did not supplement his client's discovery responses. despite being aware of the
requirements under Rule 26 to supplement. See Tr. at 30 and Tr. at 107.
In addition. after discussing the existence of the records with his client just prior to her
deposition. he did nothing to correct the deposition transcript when his client falsely testified that
she didn't know whether or not Ms. Montague's note produced as part of the medical chart was
the original note. See Tr. at 108-109 and Ex. 9 at 18 (66:67). Respondent also did not correct the
deposition transcript when his client falsely testified that the .luly 21. 2006 office note was
written at 4:00 p.m. See Tr. at 21 (78:79). Respondent did not correct the deposition transcript
when his client falsely testified that the medical records that had been produced were a copy of
the office records. Ex. 9 at 14 (52:53).
15
Respondent was clearly aware of the existence and potential evidentiary value of the
additional/and or altered records as he notified the insurance carrier PP|C of their existence. See
Ex. at l 1 and Ex. at 19. Respondent testified that he believed that the medical records that were
not produced in the underlying medical negligence ease and should have been produced. S. l-l.
Tr. at 89-90. Respondent also did not correct the medical records by the time that the pretrial
stipulation was filed and represented that the incomplete chart without the altered records were
the office records of New Castle Family Care. Ex. at 22.
C-EMMMaaad_uec
There is not sufficient evidence in the record of a pattern of misconduct. Respondent
does not have a prior disciplinary record. The misconduct here relates to a single case.
D. Multigle foggses
There is evidence in the record that this aggravating factor of multiple offenses exists.
The panel found that Respondent violated six different Rules of Professional Conduct.
Respondent failed to supplement discovery responses and failed to disclose the existence of
altered medical records. Respondent also failed to correct false deposition testimony and/or take
sufficient remedial measuresl Respondent further failed to take sufficient remedial measures
when his client testified falsely at trial.
E- MM£MMLMMM;§
There is rio evidence in the record that this aggravating factor exists.
F. mi i of als vi n o F e at ent D `` eD'sci lin
&L'£$§
There is no evidence in the record that this aggravating factor exists.
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G. Rel'tisal to Ackngwlggge Wrongj``ijl Natgre of goodth
There is evidence in the record that this aggravating factor exists. Respondent in his
testimony refused to acknowledge that he would have been required under the Discovery Rules
to disclose or supplement his responses with the altered medical records. l-le further did not
acknowledge that he had a duty to take sufficient remedial measures when his client testified
inaccurately at her deposition and at trial. Respondent did acknowledge that he would have done
things differently today. but his testimony fell short of acknowledging the wrongful nature of his
conducL
I-I. Vulnerability of Victim
There is evidence in the record to support this aggravating factor. 'I``he Plaintiff iri the
underlying medical negligence action was an infant who has suffered permanent brain injuries
and disabilities.
l. Subst@tia| §xjgg``egce ig the Praeticg of L._gw
There is evidence in the record to support this aggravating factor. Respondent testified
that he was admitted to the Pennsylvania bar in 1984. S. H. Tr. at 84. Respondent has been an
attorney for thirty-three years. Respondent’s testimony was unrebutted.
.l. lgdiffggncg 19 MgLigg R§titg_tj_on
There is no evidence in the record that this aggravating factor exists.
K. llle al n lncl `` t vo|vi se a ed s c
There is evidence that this aggravating factor exists. By failing to disclose the existence
of the altered medical records. Respondent assisted his client in concealing evidence and
1?
perpetrating a fraud on the legal systcin. Respondent further assisted his client in committing
fraudulent conduct when he did not take remedial measures in conjunction with his client's
deposition testimony and trial testimony when he knew such testimony to be l``alse.
Mitigating Factors
ABA Standard 9.32 sets forth the following non~exhaustive list of factors to he
considered in mitigation:
(a) absence ofa prior disciplinary record:
(b) absence of a dishonest or selfish motive;
tel personal or emotional problems;
(d) timely good faith effort to make restitution otto rectify consequences of misconduct;
(c) full and free disclosure to disciplinary board or cooperative attitude toward proceedings:
(f) inexperience in the practice of law;
(g) character or reputation;
(h) physical disability;
t i) mental disability or chemical dependency including alcoholism or drug abuse when:
( l) there is medical evidence that the Respondent is affected by a chemical dependency
orinenl ldisa ilit ;
(2) the chemical dependency or m_e_ntal disability caused the misconduct;
(3) the respondents recovery from the chemical dependency or mental disability is
demonstrated by a meaningful and sustained period of successful rehabilitation; and
t-'l) the recovery arrested the misconduct and recurrence of that misconduct is unlikely;
tj) delay in disciplinary proceedings;
(k) imposition of other penalties or sanctions;
(|) remorse;
(m) remoteness of prior offenses.
(ABA Standard § 9.3?.)
15
A. Absence of a Erior Disciglinai;y B_c_cord
There is evidence in the record that this mitigating factor exists. Respondent does not
have a prior disciplinary record.
B. Ahscnce of a Dishonest or Sglfish Motive
As discussed under aggravating |``actors, there is evidence of a dishonest or selfish motive.
This mitigating factor does not apply.
C. Personal or Emotigngl Problems
There is no evidence in the record tltat this mitigating factor exist.s.
D. Timgly Qggd Faith Effoig tg Ma_lte Restitutjog or to Regtify Consegu§nces of
Miscgnglt_igt
There is no evidence in the record that this mitigating factor exists.
E. Full gd Free Qisclgsgrg ig Disgip_ling;y §gar_d gn_d ngj:_iegtivc Attitudg toward
P in
There is evidence in the record that this mitigating factor exists. Respondent offered
unrebutted testimony that Respondent was cooperative with the disciplinary process.
F. lnexmrigng§ ig mg practice gf lgw
There is no evidence in the record that this mitigating factor exists. As discussed in the
aggravating factors, Respondent has substantial experience in the practice of law.
G. §hg;agter or Rgp_utatign
19
There is evidence in the record to support this mitigating factor. Respondent offered
testimony front Kristy McCabe. .lames Zeri.s. lay E. Mintzer and Stephen Levda in support of his
good character and reputation. Ms. McCabe testified that she worked with Respondent at the
same law lirm from 2007 to 2016 and that Respondent was her supervisor for the last six years of
her time tit the firm. S.H. Tr. at 45. Ms. McCabe testified that she believes Respondent to be an
honest, loyal and ethical person. S.H. Ti'. at 46.
Mr. Zeris testified that he first met Respondent in law school and had worked with him a
number of years at Mintzer Sarowitz Zeris Ledva and Meyers. S.H. Tr. 52 and 53. Mr. Zeris
testified that Respondent's character and reputation was impeccable and that he was admired by
the associates that he worked with over the years. S.l-l. Tr. 54. Mr. Mintzer testified that he has
known Respondent since the late 1990’s. S. H. Tr. 65. Mr. Mintzer testified that he believed that
Respondent had the highest character. morals and ethics. S. l-l. Tr. 66-67. Mr. Ledva testified that
he has known Respondent since the mid 1980'5. S. H. Tr. 73. Mr. Ledva testified that he has a
high opinion of Respondent's character and reputation. S. H. Tr. 74. The panel finds the
testimony of Ms. McCabe, Mr. Zeris. Mr. Mintzer and Mr. Levda to be credible and accepts their
testimony as evidence of Respondent's good character and reputation.
H-P_hYS_iQalMi£tiLit
There is no evidence in the record that this mitigating factor exists.
l.Mtl"i``rh'l en
There is no evidence in the record that this mitigating factor exists.
.l. Dglgy in Disgjglingy Prgt_:ceding§
20
There is no evidence in the record that this mitigating factor exists.
l<. of oth r cna|ties or sanctions
lin osi titin
There is insufficient evidence in the record that this mitigating factor exists. i\lthough.
Respondent contends that there have been other penalties or sanctions because Respondent's
malpractice carrier settled a claim on his behall``. there is no evidence in the record that
Respondent personally contributed to that settlement. S. l-l. Tr. at 61 -62.
L. Mse
There is insufficient evidence in the record that this mitigating factor exists. Although.
Respondent contends that he is rcmorseful. as discussed in the aggravating factors. Respondent
still refuses to acknowledge the wrongful nature ot'his conduct. Respondent did testify that he
regrettcd not disclosing the records and that he has thought about his decision since then. his
testimony fell short of acknowledging that the altered medical records should have been
disclosed. Respondent never disclosed the altered medical records in the underlying litigation
and it was not until the records were disclosed by a third party in discovery during subsequent
litigation that he acknowledged their existence Respondent further never self reported to the
ODC.
M. Rgmoteng§. s of Erio[ Offggses
There is no evidence in the record that this mitigating factor exists.
The panel finds that on balance the aggravating factors outweigh the mitigating factors.
As discussed above the panel found that the following aggravating factors existed: (b) dishonest
or selfish motive. (d) multiple offenses. (g) refusal to acknowledge wrongful nature of conduct.
21
h) vulnerability of victim. i) substantial experience in the practice of law. and t k) illegal conduct.
including that involving the use of controlled substances. As discussed above the panel found
that the following mitigating factors existed: (a) the absence of a prior disciplinary record. (c)
full and free disclosure to disciplinary board or cooperative attitude toward pmceeding.s, and (g)
character or reputation.
The intentional concealment of the altered medical records and the failure to take
remedial measures to correct false deposition and trial testimony is dishonest. lo addition.
Respondent had multiple opportunities to disclose the existence of the altered medical records or
correct or counsel his client regarding the inaccurate testimony. yet failed to do so. lnstead. lie
assisted his client with concealing the altered medical records and did not take any steps to
correct the record when he knew that his client testified falsely. Funher, Respondent in his
testimony continued to try to justify his actions in his failure to disclose the altered medical
records or to take remedial measures. instead of acknowledging the wrongfulness of that
conduct. The victim in this matter was particularly vulnerable and Respondent had substantial
experience not only in the practice of law, but in litigating these type of cases and should have
recognized the potential evidentiary value of the altered medical records to Plaintiff‘s eounsel. In
fact. Ms. McCabe who had previously worked for Respondent recognized it without hesitation.
S.l-I. Tr. at 5 l.
Conclusion
The Pane| believes that recommending disbarment 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 justiee, to preserve confidence in the legal
22
pml’ession. and to deter other lawyers from similar mtsconduct." fn re Drmghr_v. 832 A.'_’d 724.
735-736 (Del. 2003) ( citations omitted). The facts in this case are similar to the facts in fn re
Melvin. 807 A.Zd 550 (Del. 2002). where Melvin destroyed documents with potential evidentiary
value and attempted to downplay the severity of his misconduct in his testimony before the
Board. Similarly, Respondent concealed the altered medical records when he knew that they had
potential evidentiary value and would have ata minimum adversel y impacted his clicnt's
credibility. Respondent in his testimony before the Pancl also failed to admit the wrongfulness of
his conduct and instead attempted to make technical arguments about why disclosure was not
required under discovery rules and why the evidence likely would not have impacted the amount
recovered by Plaintiff at trial. lt is disingenuous to suggest that a medical record altered by a
physician and her staff concerning her treatment of the patient would not be relevant in a medical
negligence action alleging that the physician's treatment of the patient was negligent and
violated the stande of care. “'I'he preservation of evidence. regardless of its subjective value. is
fundamental to the orderly administration of justice.“ !d. Like Melvin, Respondent also had
substantial experience in the practice of law as an aggravating factor. l-lowever, unlike Melvin
where the attorney's deceitful conduct was in connection with his personal domestic dispute
matter without harm to a client. here Respondent's conduct involved actual and potential injury
to the litigants, the public and the judicial process. Respondent intentionally concealed evidence
in a case and took no remedial measures in spite of his client's false testimony.
Otherjurisdictions have found that disbarment was appropriate when lawyers have
intentionally concealed evidence and assisted their clients with testifying falsely. See fn re Daw``d
M. Dmten. 301 P. 3d 319 (Kan. 2013) (disbarment where attorney intentionally concealed
evidence. assisted his client with providing false testimony at deposition. failed to comply with
23
multiple discovery requirements and failed to appear at the disciplinary hcaring). This Court has
emphasized the important role of attorneys as officers of the Court “|t|his Court does not treat
lightly its officers who violate their fundamental duties to the Court. the legal eommunity. and
society." hi the Mu!rer nf.lvlm P. Ch'ne. .lr.. 58| A.2d l l 18. l 127 (Del. 1990) (disharnicnt
where attorney neglected client cases. failed to cooperate with disciplinary cotntsel. made
misrepresentations to the Supreme Court and attempted to cover up the misrepresentations).
Respondent's actions in this matter were at best dishonest and at worst criminal which resulted in
actual and potential harm to the litigants, the judicial process and the public. This Court has
emphasized the importance of honesty in the legal profession “|w|lien there can be no reliance
upon the word or oath of a party, he is. manifestly. disqualified. and when such a fact
satisfactorily appears the courtls| not only have the power, but it is their duty to strike the party
from the roll ll of attomeys." ln the M¢mer r)fMi'r:hael R. Davis. 43 A.3d 856. 867 (Del. 2012)
(attorney disbarred for engaging in the unauthorized practice of law during suspension and
24
making misrepresentations in his reinstatement questionnaire concerning his conduct in a single-
vcliic|c accident).
Based on the foregoing considerations. the Panel recommends as action of the Board that
the sanction of disbarment he imposed upon the Respondent. including the imposition of costs of
these disciplinary proceedings
Respectfully submitted.
Fg_jLI/li,\t,\u."iii\h&t’i_:ti IU{
Deirdrel A. McCanney. Esquire. Chairl
Date: h i-.
D. Benjamin Snyder. Esquire
Date:
l..ouise Roselle
Date:
15
making misrepresentations in his reinstatement questionnaire concerning his conduct in a single-
vehicle accident).
Based on the foregoing considerations, the Panel recommends as action of the Board that
the sanction of disbarment be imposed upon the Respondent, including the imposition of costs of
these disciplinary proceedings
Respectfully submitted.
Deirdre A. McCaruiey, Esquire, Chair
Date:
Lauise osbll
Date: l ii "!
25