Clyne, Matter of

CourtUnited States State Supreme Court of Delaware
Citation581 A.2d 1118
PartiesIn the Matter of John P. CLYNE, Jr., a Member of the Bar of the Supreme Court of Delaware. . Submitted:
Decision Date06 July 1989

Page 1118

581 A.2d 1118
In the Matter of John P. CLYNE, Jr., a Member of the Bar of
the Supreme Court of Delaware.
Supreme Court of Delaware.
Submitted: July 6, 1989.
Decided: Oct. 15, 1990.

L. Susan Faw, Disciplinary Counsel for the Bd. on Professional Responsibility of the Supreme Court, Wilmington.

Kevin P. O'Neill, Heyden, Kania & O'Neill, Wilmington, for John P. Clyne, Jr.



This is a disciplinary proceeding. The Board on Professional Responsibility ("the Board") 1 held a hearing on January 24, 1989 concerning charges of personal and professional misconduct brought against John P. Clyne, Jr. The charges related to Clyne's mishandling of two clients' cases, his misrepresentations to this Court, and his failure to provide financial records to disciplinary counsel in a timely fashion. In its final report dated February 27, 1989, the Board found clear and convincing evidence that Clyne had violated several provisions of the Delaware Lawyer's Rules of Professional Conduct ("the Rules") and recommended the imposition of severe sanctions.

Pursuant to Board Rule 9(d), Clyne sought review in this Court, contending that the Board should have found alcoholism to be a mitigating factor in his case. While we recognize that addiction to alcohol or other drugs is a form of illness or disease, deserving of consideration as a mitigating factor, there is nothing in this record, including Clyne's lack of effort to either recognize his disease or to demonstrate sincere efforts at recovery, to warrant such consideration here. The record fully supports the Board's factual findings that Clyne reportedly engaged in acts of serious deception. Moreover, Clyne has failed to show that alcoholism was the cause of his professional misconduct or that such violations are not likely to recur. Under such circumstances we have no alternative but to order the ultimate sanction of disbarment.

* 1120 I.

The petition to discipline alleged that Clyne neglected two clients' matters, and that in order to conceal his neglect of one of those matters, he made material misrepresentations in open court directly to the Supreme Court. It also alleged that Clyne made additional material misrepresentations to the Court when he sought to secure his transfer back to active status after being released from an alcoholic rehabilitation program. Finally, the petition alleged that Clyne failed to cooperate with disciplinary counsel in attempts to arrange a compliance check of his fiduciary and non-fiduciary accounts. Clyne does not dispute any of these charges and accepts the facts as stated in the petition to discipline.

The first instance of professional misconduct occurred within the first few months of Clyne's legal career and involved his representation of the plaintiff in a civil rights action in federal court, Washington v. Ayala. Clyne was not experienced in civil rights cases, but he located an attorney in Pennsylvania, Beverly Thompson, who agreed to take the case. She prepared the complaint, and Clyne's role initially was limited to that of local counsel. After several months, however, Clyne was unable to contact Ms. Thompson, so he began to attend depositions and took over representation of the client.

Subsequently, Clyne was informed that Ms. Thompson had been sick but was going to resume handling the case. Without verifying that information or attempting to contact Ms. Thompson, Clyne thereafter ceased working on the case although he was counsel of record. For whatever the reasons, Clyne presumed that Ms. Thompson would resume representation of the client. That did not occur, and as a result, an answering brief to the defendant's motion for summary judgment that was due on April 1, 1988 was never filed. Even after the federal court notified Clyne on April 19 that no brief had been filed and threatened to decide the matter without an answering brief, he still neither attempted to contact Ms. Thompson nor filed a brief for his client. The defendant's motion for summary judgment was granted.

The Board determined that Clyne's failure to file an answering brief in Washington v. Ayala violated Rule 1.3 of the Delaware Lawyer's Rules of Professional Conduct which requires an attorney to "act with reasonable diligence and promptness in representing a client." At the hearing before the Board, Clyne admitted that he should have filed the brief or at least verified that Ms. Thompson would do so, but he argued that the client was not harmed by his misconduct because the case was decided on the merits. He acknowledged, however, that he based that conclusion solely on a reading of the decision and his own personal opinion that the claim was meritless. The Board found Clyne's reasoning specious and speculative, noting that "a well-reasoned brief ... might have convinced the Court to deny summary judgment."

The second instance involving professional misconduct occurred before this Court in the case of Pierre v. Pierre when Clyne again failed to file a timely answering brief for his client and then made numerous misrepresentations to this Court in an attempt to cover up that failure. The brief was originally due on March 24, 1988. No brief was filed by that date, but on April 7, Clyne filed an untimely application for an extension claiming that he "ha[d] been unable to complete the brief in large part because another brief [the Washington v. Ayala brief] was due in Federal District Court." Subsequently, this Court issued an order on April 8 directing Clyne to show cause why sanctions should not be imposed on him. At the hearing on April 14, Clyne repeated the misrepresentation contained in his untimely application for an extension, maintaining that he had been busy with the Washington v. Ayala brief. He further stated that the answering brief in the Pierre case was finished but not typed and that he would file it the following Monday, April 18. In fact, both of those statements were false, but in reliance upon them, the order to show cause was discharged.

* 1121 Clyne then failed to file the Pierre brief by the new deadline of April 18. When contacted by the Court Administrator on May 4, Clyne claimed that the brief had been filed with the Supreme Court and served upon opposing counsel. In fact, the brief was not filed and served upon opposing counsel until the following day. When asked again about the late filing by the Court Administrator, Clyne invented a new story. He claimed that a messenger in his office had mistakenly filed an earlier copy of the Pierre brief in Superior Court on April 18 and had also served a copy upon the wrong opposing counsel. These statements were knowingly false.

On May 6, this Court issued a second order to show cause, at which Clyne continued his misrepresentations to this Court. He was directed to appear on May 10 and to file a sworn statement explaining what happened with the brief allegedly misfiled on April 18. Clyne's affidavit stated:

(1) Upon questioning the runner from my office regarding the whereabouts of the Answering Brief and Appendix which he was directed to file, I was informed that to the best of his recollection he had mistakenly delivered them to the Prothonotary's Office for Superior Court. He further advised that he believed he may have served Alene Berkowitz's copies upon one of the attorneys on the second floor of her office.

(2) On checking with the Prothonotary's Office, I was told that their personnel could not find any record of the documents filed there.

(3) As of 3:30 p.m. on Monday, May 9, 1988 I have been unable to communicate with the attorney located above Alene Berkowitz's office to confirm or discount the runner's suspicions. I will make every possible attempt to communicate with her prior to the May 10, 1988 Rule to Show Cause hearing.

At the hearing, Clyne reaffirmed the accuracy of the facts contained in his affidavit. He stated that both the messenger and his secretary were willing to provide affidavits supporting his story, but that he had not yet obtained those affidavits. He also claimed to have a copy of the Pierre brief with the original affidavits of service, but he stated that he had not brought the copy to the hearing. Finally, he stated that the reason the brief had been misfiled was that he had to leave town unexpectedly on Saturday, April 16, to visit his father who had to have surgery. At the end of the hearing, the Court instructed Clyne to file by 4:30 p.m. that day the copy of the answering brief showing certificate of service on April 18 and containing affidavits from the messenger and secretary who purportedly effected that service. Clyne was unable to comply with that directive by 4:30 p.m. on May 10.

The following day, however, Clyne submitted false documents to support his false statements to the Court. He presented a forged certificate of service, purportedly signed by the messenger in his office, but in fact signed by Clyne. He also rolled back the Prothonotary's date stamp machine and placed an April 18, 1988 date on a newly drafted answering brief. Finally, he surreptitiously placed a copy of the pre-dated brief in the office of opposing counsel. Based on these actions and his numerous misrepresentations to this Court, the Board found that Clyne acted with intent to conceal his misrepresentations to the Court, and concluded that he had violated Rules 1.3 2, 3.4(a) 3 and 8.4 4 of the Delaware Lawyer's Rules of Professional Conduct. Clyne does not dispute these findings or legal conclusions.

The third incident addressed by the Board involved a violation of ethical rules after Clyne was transferred to disability

Page 1122

inactive status. Clyne had been placed on disability inactive status after he enrolled as a resident patient in an alcohol abuse facility. After his treatment, Clyne returned to Wilmington and appeared before the Supreme Court on September 7, 1988 to seek transfer back to active...

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    • United States
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