Berl, Matter of
| Decision Date | 15 September 1987 |
| Citation | 540 A.2d 410 |
| Parties | In the Matter of C. Waggaman BERL, Jr., Esquire, A Member of the Bar of the Supreme Court of the State of Delaware. . Submitted: |
| Court | Supreme Court of Delaware |
Sidney Balick (argued), of Sidney Balick & Associates, Wilmington, for C. Waggaman Berl, Jr.
L. Susan Faw (argued), Disciplinary Counsel, Bd. on Professional Responsibility, Wilmington.
Before HORSEY, MOORE and WALSH, JJ.
In this disciplinary proceeding, the Board on Professional Responsibility of the Supreme Court of the State of Delaware (the "Board"), following evidentiary hearing, found that respondent, C. Waggaman Berl, Jr., Esquire, violated Rules 1.4(b) and 1.5(e)(1) of the Delaware Lawyers' Rules of Professional Conduct. The Board found that Berl had violated Rule 1.4(b) by failing to advise Dennis Robinson of the fee limitations of 18 Del.C. § 6865 after Robinson had contacted Berl concerning representation in a claim for medical malpractice. 1 The Board also found Berl to have violated Rule 1.5(e)(1) by participating in a fee division with Robinson's attorney of record under a fee sharing arrangement which the Board found not to be proportionate to the services rendered by Berl as required by the Rule in the absence of a written agreement with Robinson. 2 Pursuant to the Board's authority under Board Rule 1(c)(5) and 8(a)(5), the Board concluded that the appropriate sanction was that Berl be publicly reprimanded by the Board.
Berl appeals both Rule violation findings by the Board as well as the sanction imposed, contending that he has not violated either Rule. Should the Board be upheld Berl asks that his sanction be reduced to a private admonition.
After carefully reviewing the Board's decision, including its findings of fact and conclusions of law, we conclude that we must affirm as to the Rule 1.5(e)(1) violation but reverse and remand for insufficiency of the record to support the Board's finding of Berl's violation of Rule 1.4(b). A Rule 1.4(b) violation cannot be sustained without more particularized findings by the Board establishing that Berl, at a particular time, came under a lawyer-client relationship with Robinson from which a duty arose to inform Robinson of the application and relevance of section 6865, notwithstanding Robinson's relationship with his attorney of record.
We first summarize the Board's Findings of Fact from which it concluded that Berl violated Rule 1.4(b) and Rule 1.5(e). In November 1983, Robinson "contacted" Berl with respect to a medical malpractice claim against a Delaware physician and hospital. Berl reviewed some of Robinson's medical records but shortly concluded that he did not wish to represent Robinson in a claim against the physician because of a close relationship between Berl and the physician. By December 1983, Berl had referred Robinson's claim to a Philadelphia attorney, Stephen A. Sheller.
The subject of attorney fee arrangements never arose between Berl and Robinson, beyond Berl's telling Robinson that he [Robinson] would have to work out an appropriate fee arrangement between himself and Sheller. Neither Robinson nor Berl has any recollection of Berl's having informed Robinson of the existence of Delaware statute law, 18 Del.C. § 6865, placing limitations on attorney's fees chargeable in a medical malpractice claim. 3
Berl was well aware of section 6865 and it was Berl's practice when taking a case to advise his client of section 6865. Berl would then enter into a fee agreement with his client, later confirmed in writing, under which his fee would fully comply with section 6865 whether the case were ultimately settled or tried to judgment.
After Berl referred Robinson to Sheller, Robinson had no further contact with Berl. Robinson considered Sheller his attorney and looked entirely to Sheller for advice concerning his interests. Sheller and Robinson then entered into a written contingent fee agreement of which Berl only later learned. Under its terms, Sheller was to receive 40% of any net recovery by Robinson, that is, net after all Sheller's costs and expenses.
Sheller did not advise Robinson of the specific fee limitations in section 6865, though the record indicates that Sheller was aware of the statute and, according to Sheller, he advised Robinson that Delaware (unlike Pennsylvania) had a fee limitation statute. Sheller did not believe that section 6865 applied to fees fixed by him as a Pennsylvania lawyer even as to a claim that arose in Delaware, as was the case.
In preparing Robinson's suit, Sheller elected to file in the United States District Court for the District of Delaware. In mid-February 1984, Sheller asked Berl to assist him in drafting the complaint and in securing a Delaware attorney to act as "local counsel" in the suit with limited responsibility. Berl recommended a Delaware attorney who agreed to perform this limited role. Berl also drafted a complaint for filing by Sheller in the Delaware District Court. In a letter of transmittal to Sheller dated February 17, 1984, Berl stated, inter alia, "We are still relatively uncertain as to just what negligence is involved...."
In March 1984, Sheller filed suit on Robinson's behalf and the record indicates that Berl advanced the court deposit fee. Local counsel's role was limited to assisting Sheller in court filings and keeping him currently informed of any case activity. 4 In contrast, Berl, in the Board's words, "remained interested" in the case; and Sheller continued to consult with Berl from time-to-time about the case.
In December 1985, Sheller settled Robinson's suit against both the physician and hospital for the sum of $270,000. Sheller conducted the negotiations. When settlement appeared likely, Sheller contacted Berl to discuss fees. Sheller offered to share his fee with Berl and local counsel by giving them one-third of whatever Sheller's fee worked out to be and letting them divide their one-third share as they chose. 5 Berl (and presumably local counsel) agreed to Sheller's fee proposal.
From the net proceeds of the settlement of Robinson's case, Sheller collected $104,660.30 as his 40% fee, pursuant to his contingent fee contract with Robinson. In accordance with his previous understanding with Berl, Sheller gave Berl one-third of Sheller's fee, to be divided between Berl and local counsel as they saw fit. At Berl's suggestion, local counsel took one-third ($11,628.92) and Berl took two-thirds ($23,257.84).
On essentially these findings, the Board found that Berl violated Rule 1.4(b) and Rule 1.5(e) by proof that was clear and convincing, as required by Board Rule 15. The Board concluded that the appropriate sanction for Berl's misconduct "in the course of a lawyer-client relationship" was a public reprimand by the Board. Berl then exercised his right, as provided under Board Rule 8(a)(5), to request review by this Court of the Board's findings and sanction.
This Court's scope of review of the Board's findings of fact is limited to a determination of whether the record before the Board contains substantial evidence to support those findings. Matter of Lewis, Del.Supr., 528 A.2d 1192, 1193 (1987). Our standard of review of the Board's conclusions of law is de novo. Cf. Olney v. Cooch, Del.Supr., 425 A.2d 610, 613 (1981). In contrast, the standard of proof required of the Board to find a violation of the Rules of Professional Conduct is by clear and convincing evidence. See Rule 15 of the Board on Professional Responsibility.
Berl asserts alternate grounds for reversal of the Board's finding that he breached his duty under Rule 1.4(b) "by failing to advise Robinson of the fee limitations" of 18 Del.C. § 6865. Assuming that Rule 1.4(b) encompasses fee arrangements (which Berl disputes), Berl reasons that a lawyer's duty to communicate under Rule 1.4(b) runs only to a client and hence presupposes, for the duty to arise, the existence of a lawyer-client relationship.
Berl argues that the Board's finding of his Rule 1.4(b) violation cannot be sustained absent a finding of a lawyer-client relationship between him and Robinson. Berl says the evidence of their pre-referral contacts permits only one conclusion, that no such relationship arose because he expressly declined to take Robinson's case once he discovered from Robinson's hospital records the identity of the doctor against whom the medical malpractice claim would be asserted. With respect to his legal relationship with Robinson after the referral to Sheller, Berl contends that the record is clear that Berl had absolutely no contacts with Robinson, only with Sheller. Hence, Berl argues that no implied lawyer-client relationship can be found to have arisen between Berl and Robinson through Berl's subsequent work on the case for Sheller. Since the Board has failed to establish by clear and convincing evidence that a lawyer-client relationship did in fact exist between Berl and Robinson, Berl seeks dismissal of the Rule 1.4(b) charge.
Disciplinary Counsel disagrees that the Board's findings are inadequate or that the record is insufficient to sustain the Board's finding of Berl's Rule 1.4(b) violation. Disciplinary Counsel argues that a lawyer-client relationship can be found to have arisen between Berl and Robinson before as well as after Berl's referral of Robinson to Sheller. Counsel suggests that the Board impliedly found a lawyer-client relationship to have arisen between Berl and Robinson from their pre-referral contacts, notwithstanding Berl's refusal to represent Robinson. Disciplinary Counsel also contends that Berl's post-referral work on Robinson's case was sufficient to impose a Rule 1.4(b) duty of disclosure of section 6865 upon Berl, notwithstanding the lack of contact between Berl and Robinson and Robinson's belief that Sheller was his attorney and that Berl was no longer involved in the case. 6
Our Rules of...
To continue reading
Request your trial
-
State ex rel. Okla. Bar Ass'n v. Bailey
... ... disciplinary case. The $700.00 check had a "pinched ... indentation" and a smear of foreign matter. An ... investigator for the Bar took possession of this check and ... preserved it in an envelope. The Bar Association notified ... respondent ... [ 162 ] Hearing Tr., vol. 5, 1101, April 5, ... [ 163 ] Hearing Tr., vol. 9, 2134, April 12, ... [ 164 ] See , e.g. , In re ... Berl , 540 ... ...
-
Brewster, Matter of
...1326 (1984); Matter of Reed, Del.Supr., 429 A.2d 987, 991 (1981). We review the Board's conclusions of law de novo. Matter of Berl, Del.Supr., 540 A.2d 410, 413 (1988). We are satisfied that the record before us clearly supports the findings of fact and the conclusions of law made by the Bo......
-
Christie, Matter of
...1326 (1984); Matter of Reed, Del.Supr., 429 A.2d 987, 991 (1981). We review the Board's conclusions of law de novo. Matter of Berl, Del.Supr., 540 A.2d 410, 413 (1988). We are satisfied that the record before us supports both the findings of fact and the conclusions of law made by the Board......
-
Dragelevich v. Kohn, Milstein, Cohen & Hausfeld
...similar rules of practice6, preclude any fee-splitting which is not proportionate to the lawyers' actual work on a case. Matter of Berl, 540 A.2d 410, 416 (Del.1988) (decided under Delaware Lawyers' Rule of Professional Conduct 1.5(e)(1), based on ABA Model Rule of Professional Conduct 1.5(......
-
Practice Pointer: Fee Splitting and Referral Fees Under the Rules of Professional Conduct
...client to decide. See id. at 682 (no authority permits client to alter terms of referral contract to suit own desires); In re Waggaman, 540 A.2d 410, 415-416 (Del. 1988) (fee that was not based solely on proportional weighing of each lawyer's services but was also based on referral and on r......