The inherent and exclusive authority for disciplining attorneys rests with the Supreme Court.109 It is the duty of the Supreme Court to protect the public against any lawyer who has demonstrated unfitness or a questionable fitness to continue in the practice of law.110 Given the exclusive power of the Supreme Court to police the conduct of members of the Bar, allegations of violations of the Rules of Professional Conduct may not be raised in extradisciplinary proceedings solely to vindicate the legal profession’s interest in the administration of justice. Rather, such allegations may only be raised and considered where the challenged conduct prejudices the fairness of the underlying proceeding.111
An attorney may be subject to discipline for any act or omission, whether done individually or in concert with others, which constitutes a violation of the Delaware Rules of Professional Conduct, whether or not the conduct occurred in the course of an attorney-client relationship.112 Examples include an attorney receiving a fee based on impermissible considerations113, counseling and assisting a client in conduct known to be illegal, participating in presenting criminal charges solely to obtain an advantage in a civil proceeding114 and failing to keep client funds segregated from the attorney’s funds.115
An attorney may be subject to discipline for acts that result in a criminal conviction,116 such as conversion of client funds,117 criminal sexual misconduct118 and willful failure to file income tax returns.119 In certain circumstances, a criminal conviction is not a prerequisite to imposing discipline provided that the facts proved justify a moral unfitness to practice law.120
Discipline may be imposed for conduct resulting in the attorney being disciplined in another jurisdiction.121 An attorney may also be subject to sanction for violating any disciplinary rule or order, failure to cooperate with a disciplinary investigation or hearing122 or for conduct prejudicial to the administration of justice, such as disregarding court orders.123
Investigation of complaints of attorney misconduct is overseen by the Board on Professional Responsibility.124 Complaints are investigated and evaluated in the first instance by the Office of Disciplinary Counsel.125 At the conclusion of the investigation, Disciplinary Counsel may make a recommendation of dismissal, probation, admonition, the filing of formal charges, petition for transfer to disability, inactive status or a stay. No disposition adverse to the attorney may be recommended or undertaken by Disciplinary Counsel until the attorney has been notified and given an opportunity to respond.126
The recommendation of Disciplinary Counsel is reviewed by three members of the Preliminary Review Committee.127 The panel may approve, disapprove or modify the recommendation.128
If the recommendation is for an admonition or probation, the attorney may either accept the sanction or request a formal hearing.129 If a more severe sanction is recommended, Disciplinary Counsel, after approval by a panel of the Preliminary Review Committee, initiates formal proceedings by filing a petition which is sufficiently clear and specific to inform the respondent of the alleged misconduct. The respondent has twenty days after service of the petition to file an answer, although the time may be extended by the Chairman of the Board on Professional Responsibility. If the respondent fails to answer within the required time, the charges are deemed admitted. If the pleadings raise any material issues of fact, or if the respondent requests the opportunity to be heard in mitigation, the Board must schedule a hearing and give the respondent notice at least twenty days in advance of the hearing.130
Upon a determination by the Board that the attorney has been charged with or convicted of a “serious crime,” i.e., any felony involving moral turpitude or any lesser crime involving interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft or an attempt or conspiracy or solicitation of another to commit a “serious crime,” Disciplinary Counsel may petition the Supreme Court for an immediate interim suspension.131 The Supreme Court may also order interim suspension if presented with evidence that the attorney has committed a violation of the Rules of Professional. Conduct and the, lawyer poses a substantial threat of irreparable harm to existing or prospective clients or to the orderly administration of justice.132
A lawyer against whom a petition to discipline has been filed may tender a conditional admission of the facts set forth in the petition or a particular count in exchange for a public admonition, a private reprimand, or probation not in excess of two years, provided that Disciplinary Counsel agrees in writing to the conditional admission and proposed discipline. Any conditional admission must be accompanied by an affidavit by the defendant conditionally admitting the factual allegations and particular counts of the petition and stating that the lawyer desires to consent to the imposition of-the proposed sanction, that the lawyer freely and voluntarily consents to the sanction, that the admission and consent are not the result of coercion or duress and that the lawyer is fully aware of the implications of submitting the consent. If the conditional admission is accepted by the Board, an order of discipline by consent is entered. If the conditional admission is rejected by the Board, it is withdrawn and may not be used against the lawyer in any pending or subsequently filed disciplinary proceeding.133
At a disciplinary hearing before the Board, the respondent is entitled to be represented by a lawyer, to cross-examine witnesses and to present evidence in his or her own behalf. Post-hearing briefs and oral argument may be presented in the discretion of the Board.134 The burden is on Disciplinary Counsel to establish by clear and convincing evidence misconduct warranting sanctions.135
All witness at a hearing must be sworn or give an affirmation. The Delaware Rules of Evidence are followed as far as practicable, but evidence outside those rules may be admitted and considered if it possesses probative value commonly accepted by reasonably prudent people in the conduct of their affairs. When the respondent has been a party to a criminal, civil, administrative or other hearing, the records of that hearing may be admitted into evidence. Proof of conviction of a crime is conclusive evidence of the commission of that crime.136
When the Board orders a sanction, it must submit a report containing its findings and recommendations, together with a record of the proceedings, to the Supreme Court. A copy of the report must be served upon Disciplinary Counsel and the respondent.137 The respondent may file objections to the report within twenty days of the date of service. The Board’s dismissal of a complaint, or imposition of probation or reprimand to which no objections have been filed, is final unless otherwise ordered by the Supreme Court. All other matters are determined by the Supreme Court. Review is pursuant to the rules governing civil appeals in the Supreme Court, with the respondent deemed the appellant.138
109. In re Katz, 981 A.2d 1133, 1149 (Del. 2009); In re Enna, 971 A.2d 110, 113 (2009); In re Abbott, 925 A.2d 482, 484 (Del.), cert. denied, 552 U.S. 950 (2007); In re Thompson, 911 A.2d 373, 376 (Del. 2006); In re McCann, 894 A.2d 1087, 1088 (Del. 2005); In re Appeal of Infotechnology, Inc., 582 A.2d 215, 220 (Del. 1990).
110. In re Draper, 317 A.2d 106, 108 (Del. 1974); In re Bennethum, 161 A.2d 229, 236 (Del. 1960), reh’g denied, 52 Del. 518, 162 A.2d 429 (Del. 1960).
111. In re Appeal of Infotechnology, Inc., 582 A.2d 215, 216-17 (Del. 1990).
112. Bd. on Prof. Resp. R. 7(1).
113. In re Berl, 540 A.2d 410 (Del. 1988).
114. In re Mekler, 406 A.2d 20 (Del. 1979).
115. In re Clark, 250 A.2d 505 (Del. 1969).
116. Bd. on Prof. Resp. R. 7(2).
117. In re Agostini, 632 A.2d 80, 81-82 (Del. 1993); In re Rich, 559 A.2d 1251 (Del. 1989).
118. In re Christie, 574 A.2d 845, 847-48 (De1 1990).
119. In re Sandbach, 546 A.2d 345 (Del. 1988); In re Sanders, 498 A.2d 148 (Del. 1985), reinstated, 556 A.2d 1071 (Del. 1989).
120. In re Bennethum, 52 Del. 504, 161 A.2d 229, 233-34 (Del. 1960), reh’g denied, 162 A.2d 429 (Del. 1960).
121. Bd. on Prof. Resp. R. 7(3).
122. Bd. on Prof. Resp. R. 7(4,5). See also In re Rich, 559 A.2d 1251, 1254 (Del. 1989).
123. In re Tos, 576 A.2d 607 (Del. 1990).
124. Bd. on Prof. Resp. R. 1(c).
125. Bd. on Prof. Resp. R. 9(a, b).
126. Bd. on Prof. Resp. R. 9(b).
127. Bd. on Prof. Resp. R. 9(b).
128. Bd. on Prof. Resp. R. 9(b).
129. Bd. on Prof. Resp. R. 9(c).
130. Bd. on Prof. Resp. R. 9(d).
131. Bd. on Prof. Resp. R. 16.
132. Bd. on Prof. Resp. R. 17.
133. Bd. on Prof. Resp. R. 18.
134. Bd. on Prof. Resp. R. 9(d).
135. Bd. on Prof. Resp. R. 15(c),(d). See § 9:4 for a discussion of “clear and convincing evidence.”
136. Bd. on Prof. Resp. R. 9(f).
137. Bd. on Prof. Resp. R. 9(d).
138. Bd. on Prof. Resp. R. 9(e).
© 2010 David L. Finger