IN THE SUPREME COURT OF THE STATE OF DELAWARE

IN THE MATTER OF A MEMBER §

OF THE BAR OF THE SUPR.EME § No. 260, 2017
COURT OF THE STATE OF
DELAWAR.E:

EOIEO'S&Q§@O'J

JOH`N S. MALIK

Submitted: June 30, 2017
Decided: July 7, 2017

Before VALIHURA, VAUGHN, and SEITZ, Justices.
0 R D E R

This '7"1 clay of July 2017, it appears to the Court that:

(I) This is a lawyer disciplinary proceeding. On June 26, 2017, the
Board on Professional Responsibility filed a report with this Court
recommending that the respondent, John S. Malik, Esquire, 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 Oft`ice of Disciplinary Counsel nor Malik has filed any
objections to the Board’s report.

(2) The Court has considered the matter carefully. We find the
Board’s recommendation of a public reprimand with a two-year period of

probation with conditions to be appropriate Thus, we accept the Board’s

findings and recommendation for discipline and incorporate the Board’s
findings and recommendation by reference
NOW, TI-[ER.EFORE, IT IS ORDERED that the Board’s June 26, 2017
report is hereby ACCEPTED. The Office of Disciplinary Counsel shall
disseminate this Order in accordance with Rule 14 of the Delaware Lawyers’
Rules of Disciplinary Procedure.
BYTHECOURP

w
/

Justice

EFiled: Jun 26 201712:45P ._ " z `
Filing lo 60115482
Case Number 260,2017
BoARD oN PRoFEssroNAL REsPoNslBlLrTY
oF THE sUPREME coURT 0F THE sTATls oF DELAWARE

In the Matter of a

 

k
Member of the Bar of the * CONFIDENTML
Supreme Court of Delaware: *
* Board Case No. 113101~B
JOI-l'N S. MALIK, *
*
Respondent. *

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REPORT OF THE BOARD ON THE PETITION FOR DISCIP§\T”;E

<L.
l. Procedural Background :w;;,-` -U iii
Pending before a panel of the Board on Professional Responsibility (“the Boarc§) is a__".

Petition for Discipline filed by the Office of Disciplinary Counsel (“the ODC”) on or about
February 1, 2017 in Board Case No. ll3lOl-B (“the Petition”) against John S. Malik, Esquire
(“the Respondent”). a member of the Bar of the Supreme Court of the State of Delaware. The
Petition alleged violations of Rules l.S(f), l.IS(a), 1.15(d), 5.3, 8.4(c), and 8.4(d). Respondent,
through his counsel, Charles Slanina, Esquire, filed an Answer to the Petition (“the Answer“).
The Board convened a hearing (“the l-learing”) by the panel on April 13, 2017.l The

members of the panel of the Board were Dennis Klima, Karen V. Sullivan, Esquire, and Seth L.

Thompson, Esquire, Chair (“the Panel”). Kathleen Vavala, Esquire represented the ODC.

Charles Slanina. Esquire represented the Respondent.

At the outset of the Hearing, the Respondent moved to file an A.rnended Answer, with the
amendments reflected by underline on pages 10 and 11. ('[`r. at p. 5.) The ODC had no
objection (Tr. at p. 5.) The motion was granted, and the Panel received copies of the A.rnended

Answer. The amendments resulted in the Respondent admitting all six counts of the Petition.

 

' The transcript ofthc April |3, 20|'! hearing is cited herein as “Tr. at p, __."

l

At the I-Iearing, the Panei received into evidence two joint exhibits binders. The
Respondent also submitted a letter dated April 10, 2017 from Dana L. Reynolds, Esquire. The
Panel also received: a case law binderz; Summaries of Representative Delaware Precedents re:
Books and Records Det`lciencies, Delinquent Lawyer Tax Obligations, and False Certiticates of
Compliance; and the Respondent’s counsel’s highlighted copy of ABA Standard 9.32 on
mitigating factors The Panel heard testimony from the Respondent, Alexander Funk, Esquire,
Allen Daie Bowers, Esquire, and Wil|iam Deely, Esquire.

11. Factual F indings

Because the Respondent’s Amended Answer had admitted the violations alleged in the
Petition, the ODC, the Respondent, and the Panel treated the hearing as relating primarily to
sanctions (Tr. at pp. 5-6.) Nevertheless, the Panel received testimony from the Respondcnt and
the exhibits relating to factual circumstances surrounding the violations The first joint exhibits
binder consisted of: l) a Quick Report regarding Joshua Chattin dated October 5, 2016; 2) an
invoice regarding Joshua Chattin dated September 30, 2016; 3) a Fee Agreement for Mark Villei
dated August 15, 2015; 4) a Quick Report regarding Mark Villei dated October 5, 2016; 5) an
invoice regarding Mark Villei dated August 6, 2015; 6) a Fee Agreement for John Vanderhoogt
dated April 22, 2015; 7) a Quick Report regarding John Vanderhoogt dated October 5, 2016; 8)
an invoice regarding John Vanderhoogt dated April 16, 2015; 9) an lndependent Accountant’s
Report from Master Sidlow Associates dated July 27, 2016; and 10) the Respondent’s 2016

Delaware Supreme Court Certificate of Compliance.

 

3 The case law binder included the followingl ln re Ben.ron, 774 A.Zd 258 (Del. 2001); hr re Cor!ro, De|,, No. 5,
2017 Strine, C..l. (Apr. 12, 2017) (Order); fn re Doc.rghry, 832 A.2d 724 (Dc|. 2003); ln re Fr'nesrrorrss, 32 A.3d 978
(Del. 2011); fn re Froelich, 838 A.2d 1 I 17 (De|. 2003); fn re Gray, 152 A.3d 581 (De|. 2016); fn re Macpherson-
Johnson, 782 A.2d 265 (Del. 2001); la re Mar!in, 35 A.3d 419 (Dc|. 201 l); fn re O!Iowskr', 976 A.2d 172, 2009 WL
l796083 (Del. 2009); and hr re S.'rr!l, 985 A.2d 391, 2009 WL 4573243 (Del. 2009}.

7

The second joint exhibits binder consisted of the Respondent`s five prior private
admonitions: ODC File No. 105379-B, dated August 7, 2013; Board Case No. 32, 2005; Board
Case No. 67, 1994; Board Case No. 53, 1993; and Board Case No. 17, 1990.

Based on the factual allegations of the Petition admitted by the Respondent and the
credible, uncontroverted testimony received at the hearing from the Respondenl, and the
submitted exhibits, the Board makes the factual findings which follow.

1. The Respondent is a member of the Bar of the Supreme Court of Delaware. He was
admitted to the Bar in 1984. (Petition and Amended Answer 11 l; Tr. at p. 13.) At all times
relevant to the Petition, the Respondent was engaged in the private practice of law in
Wilmington, Delaware. ('l`r. at pp. 13-14.) The Respondent has been a solo practitioner f`or 31.5
years. (Tr. at p. 14.) From 1984 through the day of the firm’s last audit, the Respondent was in
charge of the firm’s books and records. (Petition and Amended Answer1[ l.)

2. A compliance audit of the Respondent’s financial books and records was conducted of the
Respondent’s law offices for the six months ending April 30, 2016 (the “2016 Master Sidlow
Audit Report”) by the auditor for the Lawyer’s Fund f`or Client Protection (“LFCP”). (Petition 1|
23.)

3. The 2016 Master Sidlow Audit Report reflected that the Respondent failed to pay properly
his tax obligations to the City of Wilmington. Respondentfailed to tile a tax return or pay his
2013 and 2014 City of Wilmington net profits tax until March 15, 2016. (Petition and Arnended
Answer 1[ 24.)

4. The 2016 Master Sidlow Audit Report also included the following findings relating to the

Respondent’s books and records and Fiduciary Account #24074641:

(a) The reconciled end~of-the-month cash balances differed from the total of all client ftmds
held in all six of the months reviewed, with differences ranging from -$3,031.79 to
$3,963.31;

(b) In one transaction, attomey’s fees were withdrawn from the trust account prior to the
deposit of client funds, resulting in a negative balance of -$1,000;

(c) There were 21 client balances that were over six months old for which the attorney will
not be providing additional services, with balances ranging from 318 to $l ,250;

(d) ln one transaction, the firm did not have documentation in the client’s file that supported
the disbursement of t`unds;

(e) The firm could not provide a retainer agreement for one of the five transactions selected
for testing; and

(f) The firm did not provide a statement to the client showing the amount withdrawn and the
remaining balance ot` the unearned retainer for any of the five transactions selected for
testing.

(Petition and Amended Answer‘|l 25.)

5. The Respondent required Mr. Chattin to pay an advance fee but failed to provide him with
a written statement that the fee is reh.mdable if not earned and the basis upon which the fees shall
be considered eamed. (Petition and Amended Answer 1[ 21 .)

6. The Respondent failed to provide Mssrs. Chattin, Villei, and Vanderhoogt with

statements of the fees earned at the time the funds were withdrawn from the trust account

(Petition and Amended Answer 1]1[ 21-22.)

7. The Respondent failed to have reasonable safeguards in place to ensure accurate
accounting of his law practice books and records and failed to supervise his employee’s conduct
in reconciling the books and records and timely paying taxes.

8. The Respondent filed his 2016 Delaware Supreme Court Certificate of Compliance, and
for Items 2.9, and 2.11, the Respondent answered “Yes” but should have answered “No.”
(Petition and Arnendcd Answer 11 33.)

III. Standard of Proof

Allegations of professional misconduct must be established by the ODC by clear and

convincing evidence.3

IV. F indings on Violations of the Rules

Based on the Respondent’s admissions and the evidence provided at the Hearing, the
Pancl finds that the ODC has met its burden. Speeifically, the Petition alleges, and the Amended
Answer admits, six violations of six separate rules of the Delaware Lawyers' Rules of
Professional Conduct as follows:

COUNT ONE: RESPONDENT FAILED TO PROVIDE CL]ENT WITl-I A FEE AGREEMENT
AND/OR A STATEMENT OF EARNED FEES AT THE TIME FEES WERE WITHDR.AWN
FROM THE TRUST ACCOUN'I` IN VlOLATlON OF RULE 1.5(f)

Rule l.5(f) states an attorney may “require the client to pay some or all of the fee in
advance of... the representation, provided... the lawyer shall provide the client with a written
statement that the fee is refundable if it is not earned...” and “all unearned fees shall be retained
in the lawyer’s trust account, with statement of the fees earned provided to the client at the time
such funds are withdrawn from the trust account.” By failing to provide Mr. Chattin with a

written statement that the fee is refundable if not earned, as well as the basis upon which the fees

would be considered eamed, the Respondent violated Rule l.5(f). (Petition and Arnended

 

3 Delaware Lawyers‘ Rule of Disciplinary Procedure 15(¢:).

5

Answer 11 21.) The Respondent also violated Rule 1.5(f) by failing to provide Mssrs. Chattin,
Villei, and Vanderhoogt with statements of the fees eamed at the time the funds were withdrawn
from the trust account. (Petition and Amended Answer 1|1| 21 -22.)

COUNT TWO: R.ESPONDENT PAILED TO IDENTIFY AND SAFEGUARD CLIENT
FUNDS l'N VIOLATION OF RULE 1.15(a)

Rule l.15(a) requires that a lawyer holding the property of clients or third persons shall
identify and appropriately safeguard such property. By failing to safeguard client funds, which
resulted in negative client balances in the Fiduciary Account, the Respondent violated Rule
l.15(a). (Petition and Amended Answer ‘[| 27.)

COUNT THR.EE: RESPONDENT FAILED TO MA[NTAIN BOOKS AND R.ECORDS l`N
VIOLATION OF RULE 1.15(d)

Rule l.lS(d) sets forth detailed and specific requirements for the maintenance of
attorneys’ books and records and handling of practice-related funds. The Respondent failed to
properly maintain his books and records in violation of Rule l.15(d) by: (I) failing to reconcile
the end-of-the-month cash balances with the total of client funds for each of the six months
reviewed; (2) withdrawing fees from the trust account prior to the deposit of client funds,
resulting in a negative balance; (3) having 21 client balances that were over six months old for
which the attorney will not be providing additional services in the trust account; and (4) failing to
maintain retainer agreements, compensation agreements, or both, and failing to maintain copies
of accountings to clients or third persons showing the disbursement of funds to them or on their
behalf. (Petition and Amended Answer 1111 25, 29.)

COU'NT FOUR: RESPONDENT FAILED TO SUPERVISE NONLAWYER ASSISTANTS IN
VIOLATION OF RULE 5.3

Rule 5.3 provides that, in employing nonlawyer assistants, “a lawyer having direct

supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the

person’s conduct is compatible with the professional obligations of the lawyer... and... a lawyer
shall be responsible for conduct of such a person that would be a violation of the Rules of
Professional Conduct if engaged in by a lawyer if... the lawyer... has direct supervisory
authority over the person, and knows of the conduct at a time when its consequences can be
avoided or mitigated but fails to take reasonable remedial action.” The Respondent violated
Rule 5.3 by failing to have reasonable safeguards in place which would ensure an accurate
accounting of his law practice books and records in compliance with the Rules, by failing to
supervise his employee’s conduct in reconciling the books and records and paying taxes, by
knowing that taxes were not being timely filed and paid, or any combination thereof. (Petition
and Amended Answer1| 31 .)

COUNT FIVE: R.ESPONDENT ENGAGED l'N CONDUCT iNVOLVlNG
MISR.EPRESENTA'I`ION l'N VlOLATION OF RULE 8.4(c)

Rule 8.4(c) provides that it is professional misconduct for a lawyer to “engage in conduct
involving dishonesty, fraud, deceit or misrepresentation." By filing with the Delaware Supreme
Court in 2016 a Certificate of Compliance which included misrepresentations relating to the
Respondent’s maintenance of his law practice books and records, the Respondent violated Rule
8.4(c). (Petition and Amended Answer 1[ 35.)

COUNT SIX: R.ESPONDENT ENGAGED IN CONDUCT PREJUDICIAL TO THE
ADMINISTRATION OF JUSTICE I`N VIOLATION OF RULE 8.4(d)

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.” The Delaware Supreme Court relies upon the
representations made by attorneys in the Certificate of Compliance filed each year in the
administration of justice governing the practice of law in Delaware. By filing his 2016

Certilicates of Compliance, which included misrepresentations relating to the Respondent’s

maintenance of his law practice books and records and the payment of taxes, the Respondent
violated Rule 8.4(d). (Petition and Amended Answer 1| 37.`)
V. Recommended Sanction

At the l-learing, the ODC contended that the appropriate sanction in this matter is a public
reprimand with a two-year probation with certain conditions (Tr. at p. 105.) The Respondent,
through his counsel, conceded that the presumptive sanction is a public reprimand, but contended
that the appropriate end result is a private admonition with conditions that include probation,
during which the Respondent would provide compliance pre-certification (Tr. at pp. 126, 139-
140.) For the reasons which follow, the Panel recommends that the Respondent be subject to a
public reprimand and a two-year probation during which the Respondent must provide: l) a pre-
certification by a licensed certified public accountant who has attended the LFCP training with
his Certificates of Compliance filed in 2017 and 2018, sending a copy of each pre-certification to
the ODC; and 2) notification to the ODC within 15 days of filing the return and paying his City
of Wilmington Net Profits taxes for tax years 2016 and 2017.
Vl. Rarionalefor Recommended Sanction

In making its recommendation, the Pane| has utilized the four-part framework set forth in
the ABA Standards for lmposing Lawyer Sanctions (“ABA Standards”). To promote
consistency and predictability in the imposition of disciplinary sanctions the Delaware Supreme
Court looks to the ABA Standards. in re Doughty, 832 A.2d 724, 735-736 (Del. 2003) (citations
omitted). The ABA Stanclards’ framework considers: (1) the ethical duty violated; (2) the
lawyer's state of mind; (3) the actual or potential injury caused by the lawyer's misconduct;

and (4) aggravating and mitigating factors Id.

l. The Elhical Durr`es Viol'ated.

As previously recited, the ODC alleged, the Respondent admitted, and the Panel
determined that the Respondent committed misconduct in violation of Professional Rules of
Conduct l.5(f) (f`ailing to provide the client with a fee agreement and/or written statement of
earned fees at the time fees were withdrawn); 1.15(a) (failing to safeguard client funds); l.15(d)
(failing to properly maintain financial books and records); 5.3 (failing to supervise a nonlawyer
assistant); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation);
and 8.4(d) (engaging in conduct that is prejudicial to the administration of justice goveming the
practice of law in Delaware). Under the ABA Standards, this misconduct constituted violations
of duties owed by the Respondent to clients (Rules 1.5 and l.15(a)), violations of duties owed by
Respondent to the legal system (Rules 8.4(c) and (d)), and violations of duties owed by
Respondent as a professional (Rules l.15(d) and 5.3). See ABA Standards 4.0, 6.0, and 7.0.

2. Stare anind

The ODC contends, the Respondent agrees, and the Panel finds that the Respondent’s
mental state was negligence (Tr. at pp. 109, lll, 132.) “Negligence” is defined in the ABA
Standards as “the failure of a lawyer to heed a substantial risk that circumstances exist or that a
result will follow, which failure is a deviation from the standard of care that a reasonable lawyer
would exercise in the situation.” The Respondent acknowledged his responsibility to maintain
the books and records and testified that he was probably deficient in leaving maintenance
obligations to a bookkeeper who did not have as much experience and appreciation of accounting
principles as his prior bookkeeper. (Tr. at pp. 18-19.) 'l`he Panel accepts the Respondent’s
unrefuted testimony that he personally performed the reconciliations regularly, albeit not always

within a monthly cycle, and that his software was unable to print previous reconciliation reports

(Tr. at pp. 21-23.) The Respondent also testified to being con.li.tsed about clients, resulting in
the $l,OOO discrepancy (Tr. at pp. 24, 40.) Additionally, he admitted that he did not pay enough
attention to whether notices were being sent to clients when funds were withdrawn, and he
should have reviewed the tile missing a fee agreement and noticed its absence. (Tr. at p. 24.)
With regard to the delinquent City of Wilmington Net Profits taxes, the Respondent testified that,
unlike other taxes, there was no automated program that would separate the funds subject to that
tax and so it was a cumbersome process that should have been delegated to someone else,
allowing the Respondent to focus on the practice of law. (Tr. at pp. 49-51.)

In light of the above, the Panel finds that the Respondent was negligent .S`ee, e.g., fn the
Marrer of Gray, 152 A.3d 581, 2016 WL 7188110 (Del. 2016) (approving Board determination
of acting negligently in having deficiencies in accounts filing inaccurate certificate of
compliance, and failing to pay payroll taxes).

3. Actual or Potenrial Injwy.

There was no testimony or evidence presented that the misconduct actually harmed any
of the Respondent’s clients I-lowever, actual injury is not required .S'ee, e`g., In re Benson, 77
A.2d 258, 262 (Del. 2001).

With respect to potential injury, the Respondent’s contention is that the record lacks
evidence to support even the potential for harm because the Respondent was performing the
rcconciliations and was simply unable to reproduce the timely reports later. (Tr. at 133.)
However, the Panel considers that too narrow a view of the record, focusing only on the
accounting issues while ignoring taxes paid nearly two years late, a fee agreement not provided
to a client, and a Certificate of Compliance filed with misrepresentations “Potential injury” is

defined in the ABA Standards as “the harm to a client, the public, the legal system or the

ill

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
misconduct.” The record reflects that potential for injury to a client existed, in that the client
who did not receive a fee agreement might not have understood that the unearned portion of the
fee was refundable. Additionally, with respect to the legal system, potential injury existed, as the
Court likely would have relied on the Certificate of Compliance, but for the compliance audit.
See In re Benson, 774 A.2d 258, 262-263 (Del. 2001) (stating the Delaware Supreme Court’s
“means of monitoring a lawyer's compliance with record keeping obligations is dependent upon
the lawyer's accurate, written representations as part of the annual registration process”).
Finally, the Respondent’s contention regarding the record-keeping runs counter to Delaware
precedent See In re Doughty, 832 A.2d 724 (Del. 2003) (applying ABA Standard 7.3 and
disagreeing with the board’s conclusion that potential for harm was minimal when attorney
failed to maintain proper books and records and pay taxes when his firm’s main office handled
record-keeping duties and many of its major clients performed their own audits).

4. Presumptive Sanction.

The ODC contends, the Respondent agrees, and the Panel finds that the Respondent’s
mental state was negligence (Tr. at pp. 111, 112, 113-114, 126.) Where, as in this matter, the
conduct involves negligent acts with injury or potential injury, these provisions point generally to
a public reprimand as an appropriate sa.nction. See ABA Standards 4.13, 4.63, 6.13 and 7.3. The
presumptive sanction must then factor in the presence or absence of any mitigating or
aggravating factors
5. Aggravating and Mirigating F actors

ABA Standard 9.22 sets forth the following non-exhaustive list of aggravating factors:

ll

(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple oifenses;
(e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with
rules 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 in the practice of law;
(j) indifference to making restitution;
(k) illegal conduct, including that involving the use of controlled substances
(ABA Standard § 9.22)
The ODC contended the applicability of (a), (c), (d), and (i). (Tr. at pp. 114-115.) The
Panel agrees that the aggravating factors are: (a), based on the Respondent’s five private
admonitions for prior disciplinary offenses‘; (c), based on the pattern of misconduct involving
three different clients and multiple years of untimely taxes; (d), based on the multiple offenses

involving five different Rules; and (i), based on his law practice exceeding thirty years

 

" The ODC and the Respondent’s counsel reached differing conclusions on whether the present violations fell within
the scope of “practice management” along with the Respondent’s prior disciplinary record fell. (Tr. at pp. |04, 124-
125, 138.) The Delaware Supreme Court has found misconduct made during probation for similar acts “signiticant
and disturbing." In re Spi!ler, 788 Al2d l 14, l 18 (Del. 2001 ). The Court has also approved a Board
recommendation for a public reprimand in light of an attomey’s prior disciplinary proceeding relating to delinquent
tax payments lrr the Matrer of F inesrrauss, 32 A.3d 978, 979 (Del. 201 l). Here, the Respondent’s prior discipline
involved different Rules and dissimilar acts While that may reduce the significance and avoid “disturbing," there
must still be weight given to a disciplinary record involving five admonitions

12

ABA Standard 9.32 sets forth the following non-exhaustive list of factors to be
considered in mitigation:
(a) absence of a prior disciplinary record;
(b) absence of a dishonest or selfish motive;
(c) personal or emotional problems;
(d) timely good faith effort to make restitution or to rectify consequences of misconduct;
(e) 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;
(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
or mental disability;
(2) the chemical dependency or mental disability caused the misconduct;
(3) the respondent’s recovery from the chemical dependency or mental disability is
demonstrated by a meaningful and sustained period of successtiil rehabilitation; and
(4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely;
(i) delay in disciplinary proceedings;
(lt) imposition of other penalties or sanctions;
(l) remorse;
(m) remoteness of prior offenses

(ABA standard § 9.32)

13

At the Hearing, the Respondent’s counsel asserted to the Panel that factors (b), (d), (e),
(g), (l), and (m) should be considered (Tr. at pp. 136-138.) The ODC acknowledged the
existence of all of the aforementioned factors, except for remoteness of prior offenses. (Tr. at pp.
141-142.)

With respect to factor (m), the most recent admonition occurred in 2013, less than a year
before the Respondent failed to timely file and pay his 2013 City of Wilmington Net Profits tax.
That admonition cannot be deemed remote in time.5 The admonitions in 1990, 1993, and 1994
are certainly remote in time. The admonition issued in January 2006, over a decade ago, is less
so, but still remote in time. See fn re Thompson, 911 A.?.d 373, 376 n. 9 (Del. 2006) (tinding, in
the context of prior disciplinary record, an admonition from nine years earlier to be remote in
time and only worthy of “some limited weight”).

Regardless, the evidence plainly reflects a number of mitigating factors, specifically: (b)
an absence of a dishonest or selfish motive; (d) timely good faith effort to make restitution or to
rectify consequences of misconduct; (e) hall and free disclosure to the ODC and a very
cooperative attitude toward these proceedings; (g) excellent character or reputation; and (l)
sincere remorse.

The Panel finds that the overall balance between the aforementioned aggravating and
mitigating factors does not warrant a reduction of the presumptive sanction of public reprimand
6. Precedent.

Lastly, the Panel believes that recommending a public reprimand in this matter is
consistent with Delaware Supreme Court precedent “['l`]he objectives of any lawyer sanction

should be to protect the public, to advance the administration ofjustice, to preserve confidence in

 

5 For discussion of remoteness in nature of offense, see n. 4.

14

the legal profession, and to deter other lawyers from similar misconduct.” In re Doughty, 832
A.2d 724, 735-736 (Del. 2003) (citations omitted).

With regard to an appropriate sanction, counsel for the Respondent directed the Panel’s
attention to In re Wooa's, --- A.3d ----, 2016 WL 3886148 (Del. 2016), and ln re Martr'n, 35 A.3d
419, 2011 WL 2473325 (Del. 2011), which both involved attomeys who agreed to a private
admonition and probation with conditions (Tr. at p. 127.) The private admonitions became
public when the attomey in each matter then violated a condition of the probation, specifically
the need to provide a pre~certiiication for a Certificate of Compliance While the these two cases
involve violations of Rules l.l$ and 8.4 and, in the case of In re Mar!in, Rule 5.3, unlike the
present matter, neither In re Wooa's nor fn re Martin reflects the additional violation of Rule 1.5.

The Respondent’s counsel also points to the Surnrnan'es of Representative Delaware
Precedents rec Bool-ts and Records Deficiencies, Delinquent Lawyer 'I`ax Obligations, and Faise
Certificates of Compliance (“the Summaries”), beginning on page 46, following an
acknowledged number of cases with public reprimands The Summaries identify five matters
with Court-imposed private admonition and probation, two from 2002 and one each from 1999,
1996, and 1989. The most recent matters, which are from over fourteen years ago, only involved
violations of Rules 1.15, 5.3 (in Del. Supr. No. 261, 2002 only), and 8.4(d). The matter sub
judice includes an additional violation of Rules 1.5.

More importantly, much more recent Delaware Supreme Court precedent calls for a
public reprimand From 2016, the Board, in fn re Gray, 2016 WL 7188110 (Del. 2016), noted
the primary basis for declining to recommend a private admonition as the violations including

failure to file and pay taxes, in addition to the books and records violations The same is true of

ii

the matter at hand There is also the additional violation of Rule 1.5 due to the lack of a fee
agreement and written statements at the time of fee withdrawal

On the day before the Hearing, the Delaware Supreme Court issued its decision in fn re
Casrro, 2017 WL 1376411 (Del. Apr. 12, 2017). The Respondent’s counsel attempts to
distinguish that precedent from the present matter based on this matter's purported lack of
findings regarding absent fee agreements negative client balances, commingling_. and, most
importantly, the record-keeping issues spanning multiple reporting periods. (Tr. at pp. 129~132.)
However, the case at bar does involve an absent fee agreement, a negative client balance, and
record-keeping issues spanning multiple periods, specifically, two tax years. Unlike fn re
Castro, the Respondent has also been found to have violated Rule 5.3. Additionally, while In re
Casrro and this matter have comparable mitigating factors, there was only one “lukewarm"
aggravating factor in fn re Castro, compared with several aggravating factors here, including a
prior disciplinary record of five admonitions
VII. Conclusion.

Based on the foregoing considerations, the Panel recommends as action of the Board that
the sanctions set forth in Section V of this Report be imposed upon the Respondent, including
the imposition of costs of these disciplinary proceedings, including the LFCP audit in 2016,

pursuant to Delaware Lawyers’ Rule of Disciplinary Procedure 27.

Respectfully submitted

S_eth L. Th_ pson, Esquir§ Chair

Date: 16 311

  

15

Karen V. S lli Esquire
Date: Qgi:i§: E,{ 7

Dennis Kli`rii.{
Date: ég.zég 12

iii

    

