In re Abbott

• Court: Supreme Court of Delaware
• Writing for the Court: Per Curiam
• Citation: In re Abbott, 925 A.2d 482 (Del. 2007)
• Decision Date: 02 May 2007
• Docket Number: No. 676, 2006.,676, 2006.
• Parties: In the Matter of a Member of the Bar of the Supreme Court of the State of Delaware: Richard L. ABBOTT, Respondent.

925 A.2d 482

In the Matter of a Member of the Bar of the Supreme Court of the State of Delaware Richard L. ABBOTT, Respondent.

No. 676, 2006.

Supreme Court of Delaware.

Submitted: February 14, 2007.

Decided: May 2, 2007.

Disciplinary Proceeding Upon Final Report of the Board on Professional Responsibility of the Supreme Court.

PUBLIC REPRIMAND IMPOSED.

Richard L. Abbott, Abbott Law Firm, Hockessin, DE.

Andrea L. Rocanelli, Office of Disciplinary Counsel, Wilmington, DE.

Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS and RIDGELY, Justices, constituting the Court en Banc.

PER CURIAM:

This is an attorney discipline matter involving charges of professional misconduct against Richard L. Abbott, Esquire ("Mr. Abbott" or "Respondent") that were filed by the Office of Disciplinary Counsel ("ODC"). This matter originates from the arguments set forth in the opening and reply briefs filed by Mr. Abbott on behalf of his client, 395 Associates, LLC, in an appeal to the Superior Court from a decision of the New Castle County Board of License, Inspection & Review ("LIRB"). The petition filed by ODC alleges that in those briefs, the Respondent's "written advocacy [was] undignified, discourteous, and degrading to the tribunal, as well as prejudicial to the administration of justice." The petition alleges several separate bases for finding a violation of Rules 3.5(d) and 8.4(d) of the Delaware Lawyer Rules of Professional Conduct ("the Rules of Professional Conduct").¹

In a Final Report, the Board on Professional Responsibility ("the Board") determined that there was not sufficient evidence to conclude that Mr. Abbott had violated either Rule 3.5(d) or 8.4(d) of the Rules of Professional Conduct. Accordingly, the Board dismissed all of the above claims. The Board stated that, although Respondent's briefs used "unnecessary invective and rhetoric" and were "obnoxious," it could not find clear and convincing evidence of a violation of either Rule 3.5(d) or Rule 8.4(d). The Board noted, however, "this has been a difficult case . . . . The Respondent has come close to crossing the line with respect to unprofessional litigation conduct because many of the words he chose and the tone of his arguments were unnecessarily sarcastic and strident in tone."

The ODC has filed objections to the Board's Final Report and asked this Court to sanction the Respondent for his actions. We have determined that the Respondent's behavior violates both Rules 3.5(d) and 8.4(d) of the Rules of Professional Conduct and goes beyond being merely unprofessional. We also conclude that the appropriate sanction is a public reprimand.

Standard of Review

This Court has the "inherent and exclusive authority to discipline members of the Delaware Bar."² Although recommendations by the Board of Professional Responsibility are helpful, we are not bound by those recommendations.³ Our role is to review the record independently and determine whether there is substantial evidence to support the Board's factual findings. We review the Board's conclusions of law de novo.⁴

Respondent's Conduct

The ODC argues that certain specific acts by the Respondent constituted a violation of the Rules of Professional Conduct. First, the ODC alleges that the Respondent violated these rules by "accusing opposing counsel of fabricating legal grounds for the administrative decision challenged by 395 Associates." Second, the ODC contends that the Respondent also made other improper "inflammatory characterizations in his briefings to the Superior Court." Specifically, the ODC identifies the following statements contained in the Respondent's opening and reply briefs:

• A fictionalized account of the hearing written by lawyers.

• Miraculously, with the aid of legal counsel's imaginative and creative writing skills, the supposed reasoning for the LIRB's decision became dramatically more extensive and well-reasoned.

• Fictional account of the LIRB hearing prepared weeks later.

• The written decision creates an imaginary, make-believe set of reasons for the LIRB's findings.

• The County cites no legal authority to support its assertion that the LIRB's attorney may fabricate conclusions of the LIRB in the written decision.

• Certainly the County does not believe that the LIRB's attorney truly has the authority to write decisions from whole cloth.

• Laughably, the County found that the violation was not resolved based on an illogical and irrational dissertation.

• Why would the County want to start making decisions on the merits when it could continue to run 395 into the ground for sport based on whatever whimsical speculation the County could conjure up?

• The County's argument . . . constitutes pure sophistry.

• "The County's own answering brief provides the legal authority to quickly dispense with this ridiculous argument."

• Never one to miss an opportunity to deny a party the right to a fair and impartial hearing on the merits.

• Otherwise the County would be permitted to appoint a group of monkeys to the LIRB, and simply allow the attorney to interpret the grunts and groans of the ape members and reach whatever conclusion the attorney wished from the documents of record.

• [T]he ... Code cannot be magically transmuted.

Third, ODC alleges that the Respondent improperly implied that the Superior Court might rule on a basis other than the merits of the case. In support of this allegation, the ODC relies upon the following passage in the Respondent's reply brief:

This is a typical tactic used by the County, in an effort to prejudice the Court against 395 based on the hope that the Court will decide the matter based upon any potential bias or prejudice that it may have against developer Frank Acierno, rather than on merits.

Accusations Against Counsel/Inflammatory Characterizations

The Respondent's personal attacks against counsel for the County is similar to the conduct discussed in Cannon v. Cherry Hill Toyota, Inc.⁵ In that case, the United States District Court for New Jersey found that sanctions were warranted for "unduly inflammatory language in [the attorney's] certifications and briefs,"⁶ and for "his repeated use of inflammatory language in his personal attacks on Plaintiff and her attorneys."⁷ The court held:

Use of such language does nothing to assist the Court in deciding the merits of a motion, wastes judicial resources by requiring the Court to wade through the superfluous verbiage to decipher the substance of the motion, does not serve the client's interests well, and generally debases the judicial system and the profession.

The Court is aware that a lawyer has an obligation and a duty to represent his client zealously and with diligence. See RPC 1.3. However, "[t]he circumstances of this case ... present the unhappy picture of a lawyer who has crossed the boundary of legitimate advocacy into personal recrimination against his adversary."⁸

In this case, we conclude that the Respondent's written statements in his briefs filed with the Superior Court similarly violate Rule 3.5(d).⁹ First, the Respondent directly accused a fellow member of the Bar of fabricating the basis of the LIRB's decision. Second, the Respondent engaged in "discourteous conduct that is degrading to a tribunal."

Judicial Bias Allegation

The Respondent's briefs also suggested that the Superior Court might rule on a basis other than the merits of the case. We hold that those "unfounded accusations impugning the integrity" of the tribunal violated Rule 3.5(d). In Peters v. Pine Meadow Ranch Home Ass'n¹⁰ Court of Utah struck the attorney's briefs from the record and awarded fees to opposing counsel because the briefs were "replete with attacks on the integrity of the court of appeals panel that decided the cases below [and were] unfounded, scandalous, irrelevant to the questions upon which we have granted certiorari, and disrespectful of the judiciary."¹¹

In In re Simon,¹² the Louisiana Supreme Court sanctioned a lawyer with a six month suspension for the following language:

Judge Simon (Judge Ad Hoc) has committed reversible error in the performance of her duties as Judge Ad Hoc. Specifically, Judge Simon utilized the wrong standard (subjective) in deciding this issue. In denying plaintiff's Motion to Disqualify/Recuse Defense Counsel, Judge Simon has violated not only controlling legal authority but the very principals [sic] (honesty and fundamental fairness) upon which our judicial system is based. Judge Simon's denial undermines the efficacy of our jurisprudence, attorney ethics and judicial canons and serves no other purpose but to promote public disrepute and distrust of our legal system. Indeed, Judge Simon's denial of plaintiff's motion is baseless and legally, logically and ethically unsound.¹³

In In re Wilkins,¹⁴ the Indiana Supreme Court found the following statement, contained in a brief to the court clearly impugned the integrity of a judge in violation of the Rules of Professional Conduct and were worthy of sanction. The lawyer wrote that, "[t]he [Court of Appeals] Opinion is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for Appellee Sports, Inc., and then said whatever was necessary to reach that conclusion (regardless of whether the facts or the law supported its decision)."¹⁵ In that case, the Indiana Supreme Court decided that public reprimand was considered the appropriate sanction in light of several mitigating factors, including the immediate contact and written apology of the attorney, an outstanding and exemplary record, and the fact that the offending language was actually written by out of state co-counsel.

Judicial Resources Wasted

The Respondent's conduct also violated Rule 8.4(d) because it was prejudicial to the administration of justice. The Superior Court, in response to the Respondent's use of offensive and sarcastic language, was required to strike sua sponte portions of ...