In re Benge

• Decision Date: 13 June 2000
• Docket Number: No. 529, 1999.,529, 1999.
• Citation: 754 A.2d 871
• Parties: In the Matter of a member of the Bar of the Supreme Court of Delaware, John H. BENGE, Jr.
• Court: United States State Supreme Court of Delaware

754 A.2d 871

In the Matter of a member of the Bar of the Supreme Court of Delaware, John H. BENGE, Jr.

No. 529, 1999.

Supreme Court of Delaware.

Submitted: May 23, 2000.

Decided: June 13, 2000.

John H. Benge, Jr., pro se.

Andrea L. Rocanelli (argued), Mary Johnston, Office of Disciplinary Counsel, Wilmington, Delaware.

Before VEASEY, C.J., WALSH, HOLLAND, HARTNETT and BERGER, JJ., constituting the Court en Banc.

PER CURIAM:

This matter is before the Court for final disciplinary action upon review of a Final Report and Recommendations of the Board on Professional Responsibility ("Board"). The Final Report was issued following a two-day hearing and the post-hearing filings of the parties. At issue before the Board was a Petition to Discipline the Respondent, John H. Benge, Jr.

PETITION FOR DISCIPLINE

The Petition for Discipline filed by the Office of Disciplinary Counsel ("ODC") set forth ten counts alleging violations of the Delaware Lawyers' Rules of Professional Conduct. Prior to the Board's hearing, the ODC abandoned Counts Six, Seven, and Eight. Consequently, the Board hearing involved Benge's alleged violations of the seven remaining charges: Counts One through Five, Nine and Ten.

Count One of the Petition for Discipline contends that Benge violated Rule 1.1. This rule provides that "[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."

Count Two of the Petition for Discipline contends that Benge violated Rule 1.2(a). In pertinent part this rule provides that "[a] lawyer shall abide by a client's decisions concerning the objectives of representation... and shall consult with the client as to the means by which they are to be pursued."

Count Three of the Petition for Discipline contends that Benge violated Rule 1.3. This rule provides that "[a] lawyer shall act with reasonable diligence and promptness in representing a client."

Count Four of the Petition for Discipline contends that Benge violated Rule 1.4(a). This rule provides that "[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."

Count Five of the Petition for Discipline contends that Benge violated Rule 1.4(b). This rule provides that "[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."

Count Nine of the Petition for Discipline contends that Benge violated Rule 7(4) of the Rules of the Board on Professional Responsibility of the Supreme Court of Delaware. The ODC contended that Benge violated the terms of the two year probation entered as an order by the Supreme Court of Delaware: In the Matter of Benge, Del.Supr., No. 362, 1996, 687 A.2d 194 (Sept. 18, 1996). It contended that Benge violated that portion of the probation which required that, "the Benge shall communicate with each client in writing regarding their pending matters not less frequently than once every three months, and shall respond promptly to reasonable requests for information."

Count Ten of the Petition for Discipline alleged that Benge violated rule 3.3(a)(1). This rule provides that a lawyer shall not knowingly "make a false statement of material fact or law to a tribunal."

BOARD'S DECISION

It was the unanimous decision of the Board that the ODC established by clear and convincing evidence that Benge violated Count Three, Rule 1.3; Count Four, Rule 1.4(a); and Count Nine, Board Rule 7(4). By a two-to-one decision, the Board also concluded that the ODC established Benge's violation of Count One, Rule 1.1. The Board was not persuaded that the ODC established by clear and convincing evidence Benge's violation of Count Two, Rule 1.2(a); Count Five, Rule 1.4(b); or Count Ten, Rule 3.3(a)(1).

The majority of the Board recommended that Benge be publicly reprimanded, that his period of public probation be extended, that Benge pay the cost of the disciplinary proceedings, and that Benge reimburse his client, ACC, the sum of $3,315.44 plus interest. One member of the Board agreed with the latter two recommendations but concluded that Benge should be suspended from the practice of law for a period of one year.

BENGE DEMURS-ODC'S OBJECTIONS

Benge did not file any objections to the Board's majority decision. The ODC objects to the Final Report on two grounds. First, ODC objects to the recommended sanction of a public reprimand and extended probation, instead of a period of suspension. Second, the ODC submits that the record evidence established by clear and convincing evidence Benge's violation of all seven remaining counts in the Petition to Discipline, although the Board determined that only three counts were established by clear and convincing evidence.

BOARD'S DETERMINATIONS

The following recitation sets forth the findings of fact that the Board made in support of its conclusions of law.

The Petition for Discipline arises from Benge's representation of ACC in a Chapter 13 bankruptcy filing in the United States Bankruptcy Court for the District of Delaware. The Debtors, Vicki and Gary Solario, (the Debtors) filed for bankruptcy in August 23, 1996. The Debtors were represented by Joseph B. Green, Esquire. One of the Debtors' creditors was ACC. At the time of the bankruptcy filling, the Debtors owed ACC the sum of $9,732.09 pursuant to an installment sales agreement for the purchase of a motor vehicle.

ACC filed a proof of claim on September 26, 1996. On October 10, 1996, Benge was retained by ACC. For the period of time from October 16, 1996, when Benge filed an objection to the confirmation of the plan and a memorandum of law, until January 27, 1997, the bankruptcy court entered an order finding that the Debtors had failed to make timely pre-confirmation payments as required by the bankruptcy code. The court ordered the Debtors to cure all preconfirmation arrears on or before February 17, 1997. The order stated that if the Debtors failed to comply the bankruptcy would be dismissed on February 24, 1997.

On January 28, 1997, Benge advised David Dinsmoor of ACC by telephone that the bankruptcy judge had signed an order providing for the dismissal of the petition with prejudice but that the order would not go into effect until February 24, 1997. ACC entered a summary of the conversation in an activity log on that date. A copy of the activity log was entered into evidence as Exhibit 1.

The bankruptcy court held a status hearing on February 24, 1997. At that time, the bankruptcy Judge signed an order extending the Debtors' time to comply with the January 27, 1997 order to March 17, 1997. Benge did not attend the February 24, 1997 hearing.

The ACC activity log contains an entry of February 25, 1997. The entry states "TT Atty Benge, verified case dismissed with prejudice, okay to assign for repo." Benge testified that while at the bankruptcy court on February 24 or 25 for another matter, he attempted to check the Solario file. He testified that the file was out but he confirmed with the court clerk, Kathleen Fitzpatrick, that the Debtors' petition for bankruptcy had been dismissed for the failure to comply with the order requiring the Debtors to make the pre-confirmation payments. This information was passed on to ACC on February 25, 1997.

It appears instead that the Debtors' petition was not dismissed by the bankruptcy court on February 24, 1997. On the bottom of the January 27, 1997 order, there is a handwritten notation which says "extended to 3/17/97" and below that a signature line wherein the word "judge" is written in and to the left of that line is the date of "2/24/97." Kathleen Fitzpatrick testified that she filled in the handwritten notation and that Judge Peter J. Walsh of the bankruptcy court signed it. Although there was a discussion in court on February 24, 1997 about dismissing the petition for the failure of the Debtors to comply with the pre-confirmation order, Attorney Green prevailed upon Judge Walsh not to dismiss the petition and to extend the time by which the Debtors could comply. Ms. Fitzpatrick testified that when the form was returned to the file it was returned as the same docket number because it was simply an extension of the January 27, 1997 order.

The activity log contains an entry of February 26, 1997 wherein Benge called David Dinsmoor of ACC stating that he, Benge, had received a call from the Debtors' counsel stating that the Debtors had complied with the pre-confirmation order and that the dismissal has been vacated. The note then states that "he will check out with judge and call back tomorrow." There is then an entry of February 28, 1997 stating that David Dinsmoor spoke to Benge, that Benge had reviewed the file, and there is nothing indicating that the order was not in effect. The order referenced in the February 28, 1997 activity log note is the order dismissing the petition of the Debtors.

A letter from Joseph B. Green to Benge dated March 3, 1997 states, inter alia, "[a]s you are aware from speaking with my legal assistant last week, your client, in violation of the automatic stay imposed by the Bankruptcy Court, wrongfully repossessed the Debtors' motor vehicle. My understanding was that you and/or your client mistakenly believed the Debtors' case was dismissed, and you were going to advise your client to immediately return Debtors' vehicle." The letter further advises that the Debtors' vehicle had not yet been returned and if it was not returned by the end of business on March 3, 1997, Attorney Green would file an application on March 4, 1997, for an order to compel the return of the vehicle, for damages and for penalties, and a request for appropriate sanctions, costs and fees.

Green testified that there was no response by Benge to the March 3, 1997 letter. The vehicle had been...