In order to protect the public from unqualified individuals practicing law, and to insure standards of professionalism, only attorneys admitted to the Bar of the State of Delaware or individuals appearing pro hac vice61 may appear in Delaware courts on behalf of other individuals and entities.62 The admission of attorneys to practice and the exclusion of unauthorized persons from practice is within the province of the Supreme Court of the State of Delaware, and the Supreme Court has the power to enforce this exclusive right by injunction and by holding any party violating such injunction in contempt of court.63
To enforce the licensing requirement, the Delaware Supreme Court has established the Board on the Unauthorized Practice of Law.64 Complaints regarding the unauthorized practice of law may be made by any person to any member of the Board, or to Disciplinary Counsel.65 Once a complaint has been initiated, the matter is out of the hands of the complainant. The fact that the complainant is unwilling to pursue the matter or has made a settlement or compromise with the respondent will not govern any decision as to continuation of the processing of the complaint.66 Such decision can be made only by the Board.
If the complaint on its face appears frivolous or demonstrates insufficient grounds for the exercise of jurisdiction by the Board, the Board may dismiss the complaint without first referring it to Disciplinary Counsel for investigation.67 If the complaint is not dismissed, it is referred to Disciplinary Counsel for investigation. After investigation, Disciplinary Counsel makes a recommendation to the Board for disposition of the complaint.68 The Board then reviews the record and decides whether to dismiss the complaint or to begin formal proceedings or take some other action.69
If the Board decides to hold a hearing, it notifies Disciplinary Counsel, who files with the Board and serves upon the respondent a petition stating the acts allegedly constituting the unauthorized practice of law. The respondent must file an answer to the petition within twenty days of service.70
The respondent may offer to the Board a written voluntary assurance that he or she will not continue or engage in the unauthorized practice of law. The Board may choose to place conditions on the acceptance of a written assurance. The written assurance, if approved by the Board, is filed with the Supreme Court and subject to the approval of the Supreme Court. If approved, the written assurance is deemed an order of the Supreme Court that is enforceable by contempt proceedings. The written assurance is not considered an admission of the facts giving rise to the petition. In the event of a subsequent violation of the written assurance, however, the assurance constitutes prima facie evidence that the respondent knows or reasonably should know that he or she in the past engaged in, or is engaging in, the unauthorized practice of law.71
If the matter is not resolved through a voluntary written assurance, the respondent is entitled to a hearing where there is any issue of fact, or upon request of the respondent. At the hearing, the respondent is entitled to be represented by a lawyer, to present evidence and to cross-examine witnesses. Permission to present briefs, argument and other submissions may be granted in the discretion of the Board.72 All witnesses must be sworn or give an affirmation. The Delaware Rules of Evidence are followed as far as practicable, although evidence outside the Rules may be considered if it possesses probative value commonly accepted by reasonably prudent people in the conduct of their affairs.73 All hearings must be transcribed.74 Disciplinary, Counsel has the burden of proving the acts constituting the unauthorized practice of law by clear and convincing evidence.75
The Board must explain its findings and conclusions of law in a written opinion and order with reasonable specificity. The opinion and order must be served upon the parties to the proceeding, and filed with the Board.76 Disciplinary Counsel, must also notify the complainant, if any, of the final disposition of the matter.77 If the Board finds against the respondent, it may issue an order requiring the respondent to cease and desist from engaging in the unauthorized practice of law.78 The respondent may take a direct appeal to the Supreme Court from this order.79 If the respondent violates a cease and desist order entered by the Board, the Board, may institute proceedings in the Supreme Court to enforce the order.80 In this proceeding, the respondent may not collaterally attack the order, which may be reviewed only on direct appeal.81
Any party aggrieved by a final decision of the Board which affects a substantial right of the aggrieved party may petition the Supreme Court for relief, by serving two copies of a petition upon the Chairman or Secretary of the Board and filing six copies of the petition with the Clerk of the Court. Any petition must be served and filed within thirty days of the action of the board.82
61. See § 1:8.
62. In re Estep, 933 A.2d 763, 765-66 (Del. 2007); In re Arons, 756 A.2d 867, 874 (Del. 2000), cert. denied, 532 U.S. 1065 (2001); Snyder v. Martin, 820 A.2d 390, 393 (Del. Fam. Ct. 2001). People who are not lawyers may appear “pro se” (“on one’s own behalf”) without being represented by a lawyer. Corporations and other artificial entities may not appear in a court pro se and must be represented by counsel. Transpolymer Indus., Inc. v. Chapel Main Corp., No. 284, 1990, slip op. at 1-2, Horsey, J. (Del. Sept. 18, 1990) (ORDER), disposition reported at 582 A.2d 936 (Del. 1990) (TABLE); Parfi HoldingAB v. Mirror Image Internet, Inc., C.A. No. 18507, slip op. at 4 n.4, Strine, V.C. (Del. Ch. Apr. 3, 2006); Weber v. Kirchner, C.A. No. 199560NC, slip op. at 3, Parsons, V.C. (Del. Ch. Dec. 31, 2003); Shelly’s of Delaware, Inc. v. Hale, C.A. No. 88C-AP-178-CV, slip op. at 5, Del Pesco, J. (Del. Super. Sept. 16, 1988); Johnson v. Coastal Homes, Inc., C.A. No. 88C-MY-15, slip op. at 2, Chandler, J. (Del. Super. Aug. 1, 1988); Re v. Horstmann, C.A. No. 83C-FE-82, slip op. at 6, Poppiti, J. (Del. Super. Aug. 11, 1987); Re v. State, C.A. No. 83C-MR-68, slip op. at 1, Martin, J. (Del. Super. May 29, 1984); Poore v. Fox Hollow Enterprises, C.A. No. 93A-09-005, slip op. at 3, Steele, J. (Del. Super. Mar. 29, 1994) (limited liability company). One exception established by court rule permits corporations and other artificial entities to prosecute and defend civil actions in the Justice of the Peace Court through an officer or employee who has been authorized by the entity to represent it. Supr. Ct. R. 57. See also 10 Del. C. § 9525(b) (permitting corporations to prosecute debt actions in Justice of the Peace Court through officer or employee).
63. In re Estep, 933 A.2d 763, 765-66 (Del. 2007); Delaware State Bar Asso. v. Alexander, 386 A.2d 652, 654 (Del. 1978), cert. denied and appeal dismissed, 439 U.S. 808 (1978), reh’g denied, 439 U.S. 973 (1978); Delaware Optometric Corp. v. Sherwood, 128 A.2d 812, 816 (Del. 1957). An individual has no constitutional right to act as a lawyer absent a license. Delaware State Bar Asso. v. Alexander, 386 A.2d 652, 660 (Del. 1978), cert. denied and appeal dismissed, 439 U.S. 808 (1978), reh’g denied, 439 U.S. 973 (1978).
64. Supr. Ct. R. 86.
65. Rule on Unauthorized Practice of Law (“RUPL”) 4(a). Disciplinary Counsel is a lawyer admitted to practice law in Delaware appointed by the Board on Professional Responsibility, see Board on Professional Responsibility Rule 3, which in turn is established by Supreme Court Rule 62.
66. RUPL 4(a).
67. RUPL 4(b).
68. RUPL 5(a).
69. RUPL 6(a).
70. RUPL 6(b).
71. RUPL 14.
72. RUPL 9(a).
73. RUPL 10.
74. RUPL 9(c).
75. RUPL 11. See § 9:4 for a discussion of “clear and convincing evidence.”
76. RUPL 9(d).
77. RUPL 15.
78. Supr. Ct. R. 86(c)(4); RUPL 13.
79. RUPL 18.
80. Supr. Ct. R. 86(c)(6).
81. RUPL 17(b).
82. Supr. Ct. R. 86(e).
© 2010 David L. Finger