        IN THE SUPREME COURT OF THE STATE OF DELAWARE



In The Matter of a                      §
Member of the Bar of the                §
of the Supreme Court of Delaware:       §
                                        §
JEFFREY K. MARTIN, ESQUIRE              §     No. 413, 2014
                                        §
      Respondent.                       §

                         Submitted: October 29, 2014
                         Decided: November 18, 2014

Before STRINE, Chief Justice; HOLLAND and RIDGELY, Justices.

Upon Review of the Report of the Board on Professional Responsibility.
SUSPENSION IMPOSED.

Charles Slanina, Esquire, Finger & Slanina, LLC, Hockessin, Delaware, for the
Respondent.

Jennifer-Kate Aaronson, Esquire, Chief Counsel, Wilmington, Delaware, for the
Office of the Disciplinary Counsel.




PER CURIAM:
                              I. INTRODUCTION

      This is a lawyer disciplinary proceeding.        A panel of the Board on

Professional Responsibility found that Jeffrey Martin violated Rule 5.5(a) and Rule

8.4(d) of the Delaware Lawyers’ Rules of Professional Conduct (DLRPC) by

assisting a suspended lawyer, Herb Feuerhake, in the unauthorized practice of law.

The Board did not find other rule violations charged by the Office of Disciplinary

Counsel (ODC). The Board recommended a private admonition.

      Both the ODC and Martin have filed objections to the Board’s findings and

recommendation. The ODC contends that the Board’s findings are not supported

by substantial evidence. The ODC seeks Martin’s disbarment. Martin contends

that there was insufficient proof of any violations and that the matter should be

dismissed without any sanction.      Alternatively, Martin asserts that a private

admonition is the appropriate sanction.

      Based on the evidence presented, the record supports a finding that Martin

acted knowingly in assisting Feuerhake’s unauthorized practice of law and that

there is clear and convincing evidence to support the ODC’s arguments on appeal.

At the time he engaged in this misconduct, Martin was already on probation for

violating his ethical duties in the financial management of his law firm, violations

that were similar to other past violations. Given that reality, Martin had no excuse

for failing to take great care when deciding to engage a suspended lawyer to help


                                          2
him with pending cases.           Although we do not agree with the ODC that this

misconduct warrants disbarment, it does require at least the strong sanction of a

suspension.

                      II. FACTS AND PROCEDURAL HISTORY

                            A. Martin’s Relevant Legal Practice

          Martin was admitted to the Delaware Bar in 1985. He worked for a number

of years at Elzufon, Austin & Drexler before he left to open his own practice in

1995. Feuerhake worked for Martin from 1998 until 2001 when Feuerhake left to

open his own solo practice. From 2004 to 2007, Martin worked for Margolis

Edelstein. He left that firm to form a partnership, Martin & Wilson P.A., with Tim

Wilson. Early in 2009, Wilson left the firm. Around the same time, one of

Martin’s employees contacted the ODC to report that Martin had not been paying

his taxes.1 An audit revealed that Martin’s books and records did not comply with

DLRPC Rule 1.15(b) and that he had failed to file or pay various taxes for certain

time periods. As a result, Martin agreed to a private admonition with conditions in

May 2009.2

          During the same time period in 2009, Herb Feuerhake was also being

investigated by the ODC for disciplinary violations. As a result of the ongoing


1
    In re Martin, 2011 WL 2473325, *1 (Del. June 22, 2011).
2
    Id.

                                                3
ODC investigation against Feuerhake, Martin agreed to act as Feuerhake’s practice

monitor. As practice monitor, Martin discussed Feuerhake’s active matters with

him, including pending deadlines and statutes of limitations. Feuerhake moved his

solo practice into Martin’s office space. Martin and Feuerhake also worked as co-

counsel on cases together, including representing the plaintiffs in two civil rights

cases filed in the United States District Court for the District of Delaware,

captioned as Lamb v. Taylor, C.A. No. 08-CV00324-GMS,3 and Barkes v. First

Correctional Medical Servs. Inc., C.A. No. 06-CV104-LPS.                          The cases were

handled on a contingent fee basis. Martin and Feuerhake had a standing agreement

that Martin would receive 60% of any fee and Feuerhake would receive 40%.

          In November 2009, the ODC’s investigation of Feuerhake led to the filing of

a disciplinary complaint against him. Ultimately, on July 13, 2010, this Court

suspended Feuerhake from practicing law for a period of two years.4 Among the

conditions of Feuerhake’s suspension was a prohibition against performing,

directly or indirectly, any act that constituted the practice of law, including sharing

or receiving legal fees (except for fees earned before July 13, 2010). The Court

also expressly prohibited Feuerhake from having contact with clients (or




3
    Throughout the record below, this case is referred to as “the Burns litigation.”
4
    In re Feuerhake, 2010 WL 2757030, *4 (Del. July 13, 2010).

                                                   4
prospective clients) and witnesses (or prospective witnesses) when acting as a

paralegal or legal assistant under the supervision of another Delaware lawyer.

         Shortly after Feuerhake’s suspension in July 2010, Martin himself was the

subject of another disciplinary complaint filed in August 2010. In that complaint,

Martin was charged with violating the conditions of his 2009 private admonition

by failing to pre-certify his 2010 certificate of compliance, by failing to promptly

pay certain taxes, by failing to properly maintain his law firm’s books and records,

by failing to adequately supervise his non-legal staff, and by filing false statements

with the Court in his certificate of compliance.5 The Board found that Martin had

committed most of the charged violations and recommended a public admonition

with a public probation.6 This Court adopted the Board’s recommendation. Martin

was publicly reprimanded and placed on probation for one year from June 23, 2011

to June 22, 2012.

         In the summer of 2012, Carol Waldhauser of the Delaware Lawyers

Assistance Program contacted Martin and asked him if he would give another

suspended lawyer, Ron Poliquin,7 a job as a paralegal. Although he initially



5
    See In re Martin, 2011 WL 2473325, *1 (Del. June 22, 2011).
6
  As to his record-keeping obligations and his duty to supervise his staff, the Board noted that
Martin made “no effort to read [ ] Rule 1.15; and . . . apparently blithely went on, thinking his
books and records contained all necessary information. . . . There was apparently no basis for
him to have made that assumption.” See id. at *2.
7
    See In re Poliquin, 49 A.3d 1115 (Del. 2012).

                                                    5
declined, Martin reconsidered after talking to Poliquin’s counsel and reviewing this

Court’s decision suspending Poliquin from the practice of law.

             B. Martin’s Relationship with Feuerhake Post-Suspension

      After this Court suspended Feuerhake in July 2009 and during the period

while Martin himself was on disciplinary probation, Feuerhake continued to work

in Martin’s law office as a paralegal.8 Martin testified that, although he knew

Feuerhake was suspended, he never read the Court’s suspension order. The record

reflects that Feuerhake researched and drafted briefs in several of Martin’s

employment cases. For those cases, Feuerhake would submit an invoice, and

Martin would pay him an hourly rate as a paralegal. Feuerhake also continued to

work as a paralegal on the Burns and the Barkes litigation, which he and Martin

had been co-counsel on prior to his suspension. For those two matters, Feuerhake

did not receive compensation on an hourly basis. According to an email Feuerhake

sent to Martin in September 2011, the two men were continuing, with respect to

those two cases, to operate in accordance with the fee agreement they had reached

when Feuerhake was licensed to practice law, namely that Martin would receive

60% of the fee and Feuerhake would receive 40%. For the Burns litigation, the

email reflected that David Facciolo would receive 20% of the fee because he had



8
  In re Feuerhake, 89 A.2d 1058, 1059 (Del. 2014) (“During his suspension, Feuerhake worked
as a paralegal under the supervision of Jeffrey K. Martin, Esquire.”).

                                            6
referred the Burns matter to Feuerhake. Therefore, Martin’s and Feuerhake’s

percentages were to be reduced to 48% and 32%, respectively.

       While suspended, Feuerhake met with plaintiff Lamb regarding the Burns

litigation in Martin’s office and in court.9 Feuerhake also exchanged emails with

opposing counsel in that case. He attended a pretrial conference with Martin

before a United States District Court judge. During the conference and at Martin’s

request, Feuerhake addressed the judge, distinguished case law, explained the

relevance of anticipated trial testimony, lodged objections, and responded to

opposing counsel’s statements. When the litigation settled in April 2012, almost

two years after Feuerhake’s suspension, Martin gave Feuerhake $39,466,

representing his full 32% share of the contingent fee under the agreement they had

reached when Feuerhake was a licensed lawyer.

       While suspended, Feuerhake also met and communicated with plaintiff

Barkes up to twenty different times to discuss the contents of briefs he wrote and

filings by opposing counsel. He attended four depositions in the case at which

Barkes was present, and he communicated with four different witnesses being

deposed.

       As a result of this misconduct, the ODC filed charges against Feuerhake.

After the hearing in Feuerhake’s case, a panel of the Board recommended his
9
  The facts about Feuerhake’s post-suspension work come from the Court’s disbarment decision
in In re Feuerhake, 89 A.2d at 1059-60.

                                             7
disbarment.         This Court adopted the Board’s recommendation and disbarred

Feuerhake on April 4, 2014.10

                               C. ODC’s Petition Against Martin

          The ODC filed a six-count petition for discipline against Martin, alleging

that Martin violated: (i) Rule 3.4(c)11 by knowingly permitting Feuerhake, a

suspended lawyer, to practice law in violation of the Court’s suspension order; (ii)

Rule 5.3(a)12 by failing to supervise a nonlawyer assistant adequately and make

reasonable efforts to ensure that Feuerhake did not engage in the unauthorized

practice of law; (iii) Rule 5.4(a)13 by sharing legal fees with Feuerhake while he

was suspended; (iv) Rule 5.5(a)14 by assisting Feuerhake in the unauthorized

practice of law by allowing him to contact clients, appear in court, and engage in

other acts constituting the practice of law; (v) Rule 8.4(d)15 by engaging in conduct

prejudicial to the administration of justice by assisting Feuerhake’s unauthorized



10
     Id. at 1063.
11
   Rule 3.4(c) states that a lawyer shall not “knowingly disobey an obligation under the rules of a
tribunal.”
12
   Rule 5.3(a) states that a managing lawyer of a firm “shall make reasonable efforts to ensure
that the firm has in effect measures giving reasonable assurance that [an employee or associate’s]
conduct is compatible with the professional obligations of the lawyer.”
13
     Rule 5.4(a) states that a lawyer “shall not share legal fees with a nonlawyer.”
14
   Rule 5.5(a) states that a lawyer “shall not practice law in a jurisdiction in violation of the
regulation of the legal profession in that jurisdiction, or assist another in doing so.”
15
  Rule 8.4(d) states that a lawyer shall not engage “in conduct that is prejudicial to the
administration of justice.”

                                                    8
practice; and (vi) Rule 8.1(a)16 by knowingly making a false statement when he

denied supervising Feuerhake as a paralegal in his response to the ODC’s petition.

The ODC requested that Martin be disbarred.

                      D. Martin’s Response to the ODC’s Allegations

           Martin denied nearly all of the ODC’s allegations. Martin acknowledged

that he knew that Feuerhake was suspended but stated that he never read the

suspension order and thus had no knowledge of the terms of Feuerhake’s

suspension.17       Martin denied ever supervising Feuerhake during his period of

suspension.18 He further asserted that the fee Feuerhake received as a result of the

settlement in the Burns litigation had been approved by the United States

Magistrate and was paid to Feuerhake on a quantum meruit basis for work he had

done on the case before his suspension, which was permitted under the Court’s

suspension order.

                    E. The Board’s Findings on the Charged Violations

           After the violations hearing, which was separated from the hearing on

sanctions, the Board found:

           As to Count 1, alleging that Martin knowingly permitted Feuerhake to
           practice law in violation of this Court’s suspension order, the Board

16
 Rule 8.1(a) states that, in connection with a disciplinary matter, a lawyer shall not “knowingly
make a false statement of material fact.”
17
     See Ans. to ODC’s Petition at 4-5.
18
     Id. at 1.

                                               9
          found no violation of Rule 3.4(c). The Board held, “Assuming
          arguendo that the conditions of Mr. Feuerhake’s Suspension Order
          constitute an obligation under the rules of a tribunal applicable to
          [Martin], the Panel determined that ODC has not met its burden of
          proof of establishing by clear and convincing evidence that [Martin]
          knowingly disobeyed an obligation of the rules of a tribunal.”19 The
          Board concluded that there was insufficient evidence to establish that
          Martin knew or should have known of the conditions of Feuerhake’s
          suspension because this Court’s suspension order “was not nearly as
          readily publicly available as the Rules for [Martin] to access.”20

          As to Count 2, alleging that Martin failed to adequately supervise a
          non-lawyer assistant, the Board found no violation of Rule 5.3(a).
          The Board stated, “It can hardly be said that Mr. Feuerhake’s
          unauthorized practice of law was a result of [Martin’s] lack of
          supervision when it occurred in [Martin’s] presence.”21

          As to Count 3, alleging that Martin shared legal fees with a
          nonlawyer, the Board found no violation of Rule 5.4. The Board
          concluded that Feuerhake was entitled to his full share of the
          contingent fee for the work he performed on the Burns litigation
          before his suspension under a quantum meruit theory.22 The Board
          found that Martin’s failure to pay Feuerhake for the two years he
          spent working as a paralegal on the case did not “negate the fair value
          of his pre-suspension services.”23

          As to Count 4, alleging that Martin assisted Feuerhake in the
          unauthorized practice of law, the Board concluded that Martin’s
          admission that he requested the Federal District Court’s permission
          for Feuerhake to speak during the pretrial conference in the Burns
          matter established a violation of Rule 5.5(a).24 The Board did not find

19
     Board’s Report at 10.
20
     Id. at 12.
21
     Id. at 13-14.
22
     Id. at 14-15.
23
     Id. at 15.
24
     Id. at 15-16.

                                            10
          any other violations of Rule 5.5(a) arising from Feuerhake’s client
          meetings and correspondence, attendance at court proceedings and
          depositions, or signing pleadings on behalf of Martin.

          As to Count 5, alleging that Martin engaged in conduct prejudicial to
          the administration of justice, the Board concluded that its finding of a
          violation of Rule 5.5(a) under Count 4 also established that Martin
          had violated Rule 8.4(d).25

          As to Count 6, alleging that Martin had made a false statement when
          he denied supervising Feuerhake in his answer to the ODC’s petition,
          the Board found no false statement of material fact and thus no
          violation of Rule 8.1(a).26 The Board concluded that Martin was just
          “drawing a distinction between supervising Mr. Feuerhake as
          compared to Mr. Feuerhake’s work.”27

                          F. The Board’s Sanction Recommendation

          The Board held a separate sanctions hearing in April 2014. At that hearing,

Martin presented the testimony of several witnesses, including Jeffrey Weiner,

Esquire, and Cassandra Hosler, a former client, who offered testimony about

Martin’s good character and reputation.28 Martin also testified. He expressed

remorse and also testified about serious medical issues that he had experienced

beginning in 2010.




25
     Id. at 16.
26
     The ODC does not challenge this finding on appeal.
27
     Board’s Report at 16-17.
28
     Sanctions Hearing Tr. at 5-18.

                                                11
       The Board reviewed the ABA Standards for Imposing Lawyer Sanctions29

and concluded that: (i) Martin had violated Rules 5.5(a) and 8.4(d); (ii) Martin

acted knowingly; and (iii) there was no actual injury caused by Martin’s

misconduct. As aggravating factors, the Board found that Martin has a prior

disciplinary record and has substantial experience in the practice of law. The

Board did not find, as the ODC argued, that Martin had a selfish motive or that

there was a pattern of misconduct. As mitigating factors, the Board found that

Martin had a cooperative attitude during the proceedings and also offered several

witnesses who testified to his good character and reputation. The Board did not

address Martin’s expressions of remorse or evidence of personal medical problems

as mitigating factors.

       The Board concluded that a private admonition was the presumptive

sanction and that no adjustment to the sanction was required based on the

aggravating factors.




29
       See  ABA      Standards    for   Imposing     Lawyer      Sanctions,   available      at
http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/correcte
d_standards_sanctions_may2012_wfootnotes.authcheckdam.pdf.

                                              12
                                       III. DISCUSSION

                                     A. Standard of Review

          We have the inherent and exclusive authority to discipline members of the

Delaware Bar.30 Although the panel’s recommendations are helpful, we are not

bound by them.31 We have an obligation to review the record independently and

determine whether there is substantial evidence to support the Board’s factual

findings.32 The Board’s conclusions of law are subject to de novo review.33

                              B. Parties’ Contentions on Appeal

          The ODC contends that the Board erred in failing to find that Martin

knowingly violated a Court order when he allowed Feuerhake, while suspended, to

engage in the practice of law, meet with clients, attend depositions, exchange

correspondence with opposing counsel, share legal fees, and present arguments to a

federal judge. The ODC also argues that the Board erred in recommending a

private admonition. The ODC asks the Court to find that Martin violated Rules

3.4(c), 5.3(a), 5.4(a), 5.5(a), and 8.4(d) and to impose the sanction of disbarment.

          Martin asserts that the Board erred in finding that he committed any

violations of the DLRPC. Martin contends that the Board failed to give due weight


30
     In re Nadel, 82 A.3d 716, 719 (Del. 2013).
31
     Id. at 720.
32
     In re Reardon, 759 A.2d 568, 575 (Del. 2000).
33
     In re Feuerhake, 89 A.3d 1058, 1060 (Del. 2014).

                                                  13
to the uncontroverted fact that Feuerhake misled Martin, his friend and former

colleague, about the restrictions of his suspension. Martin also objects to the

Board’s finding that he violated Rule 5.5(a) when he asked for the judge’s

permission for Feuerhake to speak at the pretrial conference. Martin argues that

Feuerhake acknowledged that he was attending the pretrial conference as a

paralegal and that the federal judge permitted and invited Feuerhake’s

participation, which the judge had authority to do. Martin also argues that the

Board erred in failing to address or include his expressions of remorse and his

personal medical problems as mitigating factors. He asks the Court to “mitigate

the presumptive sanction of no more than a private admonition to a lesser sanction

such as a dismissal with warning or a private probation.”34

                 C. Martin’s Knowledge of the Court’s Suspension Order

           We must independently review the record to determine if there is clear and

convincing evidence to support a finding of knowing misconduct.35 Clear and

convincing evidence is evidence that produces an abiding conviction that the truth

of the contention is “highly probable.”36                Under the DLRPC, “knowing”

misconduct denotes “actual knowledge of the fact in question.”37 Because a person


34
     Respondent’s Objections at 7.
35
     In re Bailey, 821 A.2d 851, 863 (Del. 2003).
36
     Id.
37
     Del. Lawyers’ R. Prof. Conduct 1.0(f).

                                                    14
is presumed to intend the natural consequences of his or her actions, “knowing”

misconduct may be inferred from the circumstances.38                    Moreover, in the

disciplinary context, we have equated “wilful ignorance” to “knowledge.”39

           In this case, there is substantial evidence in the record to support a finding of

Martin’s knowing misconduct. First and foremost, Martin knew that Feuerhake

was suspended, yet he willingly allowed Feuerhake to move into his office space

and continue to work on cases for him as a paralegal without reading the Court’s

suspension order and determining the restrictions on Feuerhake’s ability to work

for Martin as a paralegal. A lawyer with Martin’s experience, especially one with

Martin’s own recent disciplinary history, would have known that the Court’s

suspension order was publicly available and should have consulted it, which is

precisely what Martin did when he was asked to hire another suspended lawyer,

Ron Poliquin, to work for him as a paralegal.

           Martin knew or intentionally remained ignorant of this Court’s order

suspending Feuerhake from practicing law. His admitted intentional ignorance of

the Court’s order should not absolve him of responsibility for complying with its

terms.40 The Board’s reasoning that the Court’s suspension order was “not nearly

as readily publicly-available” as the Court’s rules has no basis in fact and does not

38
     Id.
39
     See, e.g., In re Nadel, 82 A.3d 716, 722 (Del. 2013).
40
     Id.

                                                  15
preclude a finding that Martin knew or should have known of the terms of this

Court’s suspension order.41

                D. Charges Established by Clear and Convincing Evidence

          The record supports a finding by clear and convincing evidence that Martin

knew or should have known of the Court’s order suspending Feuerhake. The

record also establishes by clear and convincing evidence that Martin allowed

Feuerhake to attend depositions, to talk to and meet with clients, and to appear

before the District Court and allow him to argue case law. Accordingly, the record

establishes that Martin knowingly violated: (i) Rule 3.4(c) by assisting Feuerhake

to practice law in violation of the Court’s suspension order;42 (ii) Rule 5.5(a) by

assisting Feuerhake in engaging in the unauthorized practice of law; and (iii) Rule

8.4(d) by engaging in conduct prejudicial to the administration of justice by

assisting Feuerhake’s unauthorized practice.43

          Furthermore, contrary to the Board’s finding, there is clear and convincing

evidence that Martin failed to supervise Feuerhake adequately in his role as a

paralegal. It is undisputed that Feuerhake worked in Martin’s office, even if

Feuerhake did not maintain regular office hours and was paid (when he was paid)

41
     See In re Pelletier, 84 A.3d 960, 963 (Del. 2014) (quoting In re Nadel, 82 A.3d at 722).
42
  See In re Kingsley, 2008 WL 2310289 (Del. June 4, 2008) (finding a knowing violation of
Rule 3.4(c) for assisting a Delaware accountant in violating a prior cease and desist order).
43
   See In re Tos, 576 A.2d 607, 610 (Del. 1990) (holding that knowing violations of court
obligations are prejudicial to the administration of justice and violate Rule 8.4(d)).

                                                  16
as a subcontractor.          Feuerhake shared Martin’s office space and conducted

research, drafted documents and made telephone calls while he was in Martin’s

office.      Feuerhake participated in the pretrial conference at Martin’s request.

Feuerhake’s work was done on Martin’s behalf in Martin’s cases.                 Martin’s

contention that he only supervised Feuerhake’s work but did not supervise

Feuerhake is a distinction without a difference in this context.

          In fact, to the extent Martin disclaims responsibility for supervising

Feuerhake, he is admitting to a violation, because that means he was enabling

Feuerhake to practice law in an unsupervised manner in violation of this Court’s

order. In other words, if Martin was not Feuerhake’s supervisor, no one was.

What is at issue is Feuerhake’s work on cases where Martin was the counsel of

record. Under the circumstances, because Martin knew or should have known of

the terms of the Court’s suspension order, the record supports a finding that Martin

violated Rule 5.3(a) by failing to supervise a nonlawyer assistant adequately.44

          Finally, the Board erred in failing to find that Martin violated Rule 5.4(a) by

giving Feuerhake his full pre-suspension percentage of the contingency fee from

the settlement of the Burns litigation. As this Court noted in In re Feuerhake,

“Even though the Suspension Order prohibited Feuerhake from receiving any legal

fees following his suspension, the settlement payment was for work he performed

44
     See In re Bailey, 821 A.2d 851 (Del. 2003).

                                                   17
both before and after his suspension. Rather than calculate the appropriate division

from the settlement, Feuerhake chose instead to take his full share because he

claimed that a more precise figure would have been too difficult to calculate and

because he was proud of the quality work he provided to his client.”45

           Given this Court’s conclusion that the contingency fee paid to Feuerhake

was for work performed both before and after his suspension, the Board’s contrary

conclusion (which was reached almost four months after the decision in In re

Feuerhake was issued) that Feuerhake’s fee was only for his pre-suspension work

on a quantum meruit basis is unsupported. The record reflects that, after his

suspension, Feuerhake continued to work on the Burns matter for nearly two years.

Martin did not compensate Feuerhake as a paralegal on an hourly basis for any of

that work.       Instead, the two men continued to operate under the same, pre-

suspension fee-sharing agreement that they had entered into when they were both

duly licensed lawyers.          There is clear and convincing evidence that Martin’s

payment to Feuerhake of his full share of the settlement without an “appropriate

division”46 for pre- and post-suspension work was a violation of Rule 5.4(a).




45
     In re Feuerhake, 89 A.3d 1058, 1060 (Del. 2014).
46
     Id.

                                                18
                                    E. Appropriate Sanction

          In determining the appropriate sanction in a lawyer disciplinary matter, the

Court traditionally follows the framework set forth in the American Bar

Association (ABA) Standards for Imposing Lawyer Sanctions (the “ABA

Standards”). 47 The ABA framework consists of four key factors to be considered

by the Court: (a) the ethical duty or duties violated; (b) the lawyer’s mental state;

(c) the extent of the actual or potential injury caused by the lawyer’s misconduct;

and (d) aggravating and mitigating factors.48

          Martin’s knowing violations of Rules 3.4(c), 5.3(a), 5.4(a), 5.5(a), and 8.4(d)

in this case violated duties to his clients, to the legal system, and to the profession.

Although there was no resulting harm, Martin’s failure to abide by this Court’s

suspension order and his failure to adequately supervise Feuerhake, his non-lawyer

assistant, reflects a knowing disregard for his duties as a member of the Delaware

bar and as the supervising lawyer of his law practice, and created the potential for

injury.

          The ODC argues that Martin’s knowing misconduct warrants disbarment. In

support of this argument, the ODC cites ABA Standard 6.21, which provides,

“Disbarment is generally appropriate when a lawyer knowingly violates a court


47
     See In re Reardon, 759 A.2d 568, 575-76 (Del. 2000).
48
     In re Lassen, 672 A.2d 988, 998 (Del. 1996).

                                                    19
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 serious or

potentially serious interference with a legal proceeding.” The ODC also cites ABA

Standard 7.1, which provides, “Disbarment is generally appropriate when a lawyer

knowingly engages in conduct that is a violation of a duty owed to the profession

with the intent to obtain a benefit for the lawyer or another, and causes serious or

potentially serious injury to a client, the public, or the legal system.” The ODC

argues that Martin allowed Feuerhake to engage in the practice of law to benefit

himself. Martin relied on Feuerhake’s legal expertise without compensating him

for it, and both men benefitted from the fee they shared following settlement of the

Burns litigation.

      But, in our view, the record does not support a finding that Martin’s

violations, although serious, were egregious enough to warrant disbarment. Nor do

we believe there is clear and convincing evidence that Martin violated the rules

with the intent to benefit himself. From all of the testimony at the hearing, it

appears that Martin’s misconduct resulted from his intent to help a long-time friend

and former colleague who had fallen on hard times.             Although Martin did

ultimately benefit from Feuerhake’s unauthorized practice of law, there is

insufficient evidence that Martin violated the rules with that intent.




                                          20
         Accordingly, ABA Standards 6.22 and 7.2 are more relevant to Martin’s

case. Standard 6.22 states, “Suspension is appropriate when a lawyer knowingly

violates a court order or rule, and there is injury or potential injury to a client or a

party, or interference or potential interference with a legal proceeding.” Standard

7.2 states, “Suspension is generally appropriate when a lawyer knowingly engages

in conduct that is a violation of a duty owed as a professional and causes injury or

potential injury to a client, the public, or the legal system.”

         The ODC argues that several aggravating factors exist in this case: (i) prior

disciplinary history; (ii) selfish motive; (iii) pattern of misconduct; (iv) multiple

offenses; and (v) substantial experience in the practice of law.49 The Board found

evidence of only two aggravating factors: prior disciplinary history and substantial

experience. Although we do not think the record supports a finding of a selfish

motive or a pattern of misconduct, Martin was publicly reprimanded in 2011 and

placed on probation for one year for, among other reasons, failing to adequately

supervise his non-legal staff.50 He was serving that probation when he engaged in

the conduct leading to his current charges. Thus, the factors of prior disciplinary

history and substantial experience are properly considered aggravating.             But

because this prior disciplinary matter involved a failure to supervise staff regarding


49
     See ABA Standards 9.22.
50
     See In re Martin, 2011 WL 2473325 (Del. June 22, 2011).

                                               21
Martin’s books and records obligations, rather than the type of misconduct he

engaged in with Feuerhake, we do not believe it reflects a “pattern” of misconduct,

as the ODC argues.

         As to mitigating factors, the Board found that Martin had a cooperative

attitude during the proceedings and presented unrebutted testimony of his good

character and reputation.          Although not addressed by the Board, Martin also

presented unrebutted evidence of his remorse and of personal medical problems

that he was experiencing during the time period in question.

         Even accepting all of these factors in mitigation, however, they do not

outweigh the aggravating factors in order to justify a lesser sanction than

suspension, given the seriousness of Martin’s misconduct.            “Suspension is

generally appropriate when a lawyer knowingly engages in conduct that is a

violation of a duty owed as a professional and causes injury or potential injury to a

client, the public, or the legal system.”51 Importantly, the sanction of suspension is

also more consistent with our relevant prior precedent. In In re Barakat,52 we

suspended a licensed Delaware lawyer for two years after finding that he had

violated Rules 3.4(c) and 8.4(d), among other rules, by knowingly disobeying this

Court’s rule requiring him to maintain a bona fide office for the practice of law in


51
     See In re Howard, 765 A.2d 39, 44 (Del. 2000).
52
     2013 WL 6503320 (Del. Dec. 11, 2013).

                                                22
Delaware. In In re Nadel53 and In re Pelletier,54 we suspended two non-Delaware

lawyers for one year in each case after finding that each had violated Rules

5.5(b)(1) and (b)(2) by knowingly engaging in the unauthorized practice of law.55

          Considering all of the facts in this case, the Rules violated, the ABA

Standards, and our relevant prior cases, a sanction of a one year suspension is

warranted in Martin’s case. This one-year suspension will have an “appropriate,

but not unduly chilling, deterrent effect, given the range of authorized sanctions”56

under the Rules.

                                      IV. CONCLUSION

          For the reasons stated above, it is hereby ordered that Martin be disciplined

as follows:

          1.     Martin hereby is immediately suspended from the practice of law in

this State for a period of one year.

          2.     During the period of suspension, Martin must fully cooperate with the

ODC in its efforts to monitor his compliance with the terms of his suspension and

shall not: (a) have any contact directly or indirectly constituting the practice of law,

including the sharing or receipt of legal fees, except that Martin is entitled to any

53
     82 A.3d 716 (Del. 2013).
54
     84 A.3d 960 (Del. 2014).
55
  See also In re Melvin, 807 A.2d 550 (Del. 2002) (knowing violation of a court order, among
other things, warranted an eighteen-month suspension).
56
     Id. (quoting In re Howard, 765 A.2d 39, 46 (Del. 2000)).

                                                 23
legal fees earned prior to the date of this order; (b) share in any legal fees earned

for services by others during such period of suspension. Martin also shall be

prohibited from having any contact with clients or prospective clients or witnesses

or prospective witnesses when acting as a paralegal, legal assistant, or law clerk

under the supervision of a member of the Delaware Bar.

      3.     The ODC shall file a petition in the Court of Chancery for the

appointment of a Receiver for Martin's law practice pursuant to Rule 24 of the

Delaware Lawyers' Rules of Disciplinary Procedure; the Receiver shall provide

notice to clients, adverse parties, and others as required by Rule 23 of the Delaware

Lawyers' Rules of Disciplinary Procedure; and the Receiver shall make such

arrangements as may be necessary to protect the interests of any of Martin's clients

and the public.

      4.     Martin shall cooperate in all respects with the Receiver, including

providing him/her with all law office books and records.

      5.     Martin shall promptly pay the costs of the disciplinary proceedings in

accordance with the Delaware Lawyers' Rules of Disciplinary Procedure when

presented with a statement of costs by the ODC.

      6.     As reinstatement is not automatic, should Martin apply for

reinstatement, any such application must be made pursuant to Rule 22 of the




                                           24
Delaware Lawyers' Rules of Disciplinary Procedure following the suspension

period.

      7.    This Opinion shall be disseminated by the ODC as provided in Rule

14 of the Delaware Lawyers' Rules of Disciplinary Procedure.




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