In re Davis
| Decision Date | 10 April 2012 |
| Docket Number | No. 76,2012.,76 |
| Citation | 43 A.3d 856 |
| Parties | In the Matter of a Member of the Bar of the Supreme Court of Delaware. Michael R. DAVIS, Respondent. |
| Court | Supreme Court of Delaware |
OPINION TEXT STARTS HERE
Disciplinary Proceeding Upon Final Report of the Board on Professional Responsibility of the Supreme Court. DISBARMENT IMPOSED.
Frederick W. Iobst, Chief Disciplinary Counsel, Joelle E. Polesky, Esquire, Office of Disciplinary Counsel, Wilmington, Delaware.
Charles Slanina, Esquire, Finger & Slanina, LLC, Hockessin, Delaware, for Michael R. Davis.
Before STEELE, Chief Justice, HOLLAND and BERGER, Justices.
This is an attorney disciplinary proceeding involving charges of professional misconduct filed against the Respondent, Michael R. Davis (“Davis”). On October 7, 2011, a panel of the Board on Professional Responsibility (the “Board”) issued a report (“Violation Report”) 1 that concluded Davis violated the Delaware Lawyers' Rules of Professional Conduct (the “Rules”) and the Delaware Lawyers' Rules of Disciplinary Procedure (“Disciplinary Rules”). The Board conducted a sanctions hearing on November 15, 2011. On February 15, 2012, the Board issued its recommendation that Davis be disbarred (“Sanction Report”).2 Neither the Office of Disciplinary Counsel (the “ODC”) nor Davis has filed any objections to the Board's recommended sanction of disbarment.
We have made an independent determination that the sanction recommended in the Board's Sanction Report is appropriate. Accordingly, we have decided that Davis must be disbarred.
On May 27, 2009, this Court entered an order suspending Davis from engaging in the practice of law as a member of the Delaware Bar for a period of one year based on misconduct involving “false notarizations, failure to safeguard fiduciary funds, failure to pay taxes, and misrepresentations” (“Suspension Order”).3 At the end of the suspension, Davis submitted a Reinstatement Questionnaire to the ODC. In the course of investigating the Reinstatement Questionnaire, the ODC determined that some of Davis' answers on the Reinstatement Questionnaire were incomplete and misleading. Further investigation by the ODC led it to conclude that Davis had violated Rules 1.3,43.4(c),55.5(a),68.1(a),78.4(a),88.4(b),98.4(c),108.4(d)11 and Disciplinary Rule 7(c) 12 in the time before and during his suspension, and thereafter, when he sought reinstatement. Therefore, the ODC filed a new Petition for Discipline on January 5, 2011 (“Petition”) that resulted in this proceeding.
The current Petition is based on four alleged acts: First, that Davis violated the terms of the Suspension Order by engaging in the unauthorized practice of law by maintaining that part of his law office that performed title and settlement services, continuing to meet with clients or prospective clients, and continuing to speak at real estate seminars (Counts I–V); second, that prior to the Suspension Order, Davis violated the Rules by conducting a real estate settlement while under the influence of alcohol (Counts VI–VIII); third, that Davis violated the Rules by misleading police in connection with a traffic accident and then failing accurately to report the circumstances of that traffic violation in his Reinstatement Questionnaire (Counts XI–XV); and fourth, that Davis engaged in sanctionable conduct by disrobing in a public place while under the influence of alcohol and assisting his son in changing out of a bathing suit, and then failing to be fully candid about that incident in his Reinstatement Questionnaire (Counts XVI–XVIII).
The Petition charged Davis with eighteen counts of ethical violations. The ODC withdrew two counts. In its Violation Report, the Board found that Davis committed twelve ethical violations.
In the course of reviewing Davis' Reinstatement Questionnaire, the ODC discovered two prior acts of misconduct, both of which involved Davis' consumption of alcohol. The first incident involved a single-vehicle accident that occurred on September 18, 2008. Davis did not accurately report the circumstances surrounding this accident in his Reinstatement Questionnaire. The second incident involved a November 5, 2008 real estate settlement. The Board also found that during the suspension period, Davis knowingly disobeyed the Suspension Order and engaged in conduct that reflected adversely on his fitness as a lawyer.
In the late evening on September 18, 2008, Davis was involved in a single-vehicle accident. The Board found clear and convincing evidence that Davis consumed alcohol prior to the accident. Following the accident, Davis went directly home and continued to drink alcohol. When a New Castle County police officer arrived at Davis' home to investigate the accident, Davis answered the door with a glass of wine in his hand. Davis told the officer that “he had a few alcoholic drinks when he got home to calm his nerves.” The lead investigator noted in the police report that he suspected the accident was alcohol-related based on his initial observation of the vehicle. However, the officer did not administer a blood alcohol test because he “would not have been able to determine if [Davis'] blood alcohol level was high because he drank when he was home or was it high because he was intoxicated while he was driving.” The ODC presented the testimony of two witnesses who testified that Davis admitted to consuming alcohol before the accident and to drinking wine at home in order to circumvent the police investigation.13
The Board concluded that Davis' conduct in connection with the motor vehicle accident was a violation of Rules 8.4(b), (c) and (d). The Board found that Davis violated Rule 8.4(b) by reporting false information (i.e. that he did not drink prior to the accident) to a law enforcement officer relating to an actual offense or incident in violation of title 11, section 1245 of the Delaware Code. The Board found that Davis ingested alcohol after the incident with the intent to circumvent the police investigation, and that this conduct involved dishonesty, deceit and misrepresentation in violation of Rule 8.4(c) and was prejudicial to the administration of justice in violation of Rule 8.4(d).
The Board also found that Davis violated Rule 8.1(a) when he knowingly made a false statement of material fact concerning the motor vehicle accident in his Reinstatement Questionnaire. After answering “yes” to the question whether Davis had ever been “cited, charged, warned, arrested or prosecuted for any crime or rules violation, including any motor vehicle accident or moving violation,” Davis was required to provide additional information about the offense. Davis provided a narrative that included the following statements:
• “At the time of the accident I did not have my cell phone with me, so I walked home.”
• “Originally, I was charged with Unsafe Speed and Failure to Report the Accident, however, upon an explanation of the fact that I did not have a means of communication (i.e. cell phone) with me at the time of the accident and a full explanation of the accident, the charge was reduced to inattentive driving.”
• “Upon arriving home, I was greeted by the New Castle County Police.”
• “I provided full cooperation with their [the police] investigation of the crash.”
• “I provided full cooperation to the officers.”
The Board found that the above narrative by Davis on the Reinstatement Questionnaire contained knowingly false statements of material fact in violation of Rule 8.1(a). With respect to the statement, “At the time of the accident I did not have my cell phone with me, so I walked home,” the Board found it was false because the police report indicates that Davis informed the investigating officer that he was distracted by talking on the cell phone. The Board also found that the statements, “Upon arriving home, I was greeted by the New Castle County Police” and “I provided full cooperation with their [the police] investigation of the crash” were false based on the “clear and convincing evidence that Davis improperly frustrated a police investigation by drinking alcohol after the accident and before the police arrived.” 14
The second act of unethical conduct that was discovered during the ODC's investigation of Davis' Reinstatement Questionnaire involved a November 5, 2008 real estate settlement, which Davis admitted conducting while under the influence of alcohol—but denied being impaired. The Board heard testimony from Debra Seramone, one of the owners of the entity Davis represented at the settlement. Ms. Seramone testified that Davis' behavior was She also testified that “[h]is face was flushed,” and his speech “was slurred.” At the conclusion of the settlement, Davis approached one of Ms. Seramone's partners and “said something to the effect of either ‘I love you’ or ‘love you,’ and moved forward to kiss her.” Ms. Seramone testified that the next day, Davis called her to apologize for his inappropriate behavior and admitted to having had a drink at lunch before the afternoon settlement.
In connection with the November 2008 real estate settlement, the Board found that Davis failed to act with reasonable diligence in violation of Rule 1.3, and that he failed to treat “all persons involved in the legal process with courtesy and respect.” 15 The Board also found that Davis' conduct was prejudicial to the administration of justice in violation of Rule 8.4(d).
The Board found that Davis knowingly disobeyed the May 27, 2009 Suspension Order in violation of Rule 3.4(c)...
To continue reading
Request your trial
-
In re Lankenau
... ... 2009).17 Id. ; In re Tonwe, 929 A.2d 774, 777 (Del. 2007) ; In re Steiner, 817 A.2d at 796.18 In re Davis, 43 A.3d 856 (Del. 2012).19 In re Figliola, 652 A.2d 1071, 1076 (Del. 1995).20 In re Rich, 559 A.2d 1251, 1257 (Del. 1989).21 See In re Vanderslice, 55 A.3d 322, 327 (Del. 2012) (suspending a lawyer for one year where lawyer misappropriated firm funds eight times in a ten-month period); see also ... ...
-
Square Ring, Inc. v. Doe
... ... LLO did not respond to Cole's proposal. On March 5, 2012, Cole emailed LLO: "At this point I am assuming your baseball arbitration idea is off the table." (D.I. 75, Ex. 70) 8. "The Delaware Lawyers' Rules of Professional Conduct [are] based on the ABA's Model Rules." In re Davis, 43 A.3d 856, 865 (Del. 2012). 9. Regardless, Delaware and New York apply the same legal standards in resolving attorney discharge disputes. 10. In a contingent fee case, the quantum meruit recovery of attorney's fees is "not to exceed the contingency fee." Murrey v. Shank, 2011 WL ... ...
-
Bd. of Overseers of the Bar v. Umphrey
... ... 4 M.R.S. § 807. Courts have ... disbarred or suspended attorneys for failure to maintain ... personal integrity for practicing law while under suspension ... See ABA Annotated Standards for Imposing Lawyer ... Sanctions (2015), at 211 (citing In re Davis, 43 ... A.3d 856 (Del 2012); In re Jones, 99 So.3d 20, 23 ... (La. 2012); In re Koliha, 9 P.3d 102, 105 (Or ... 2000); In re Devers, 974 P.2d 191 (Or. 1999)) ... ABA ... Standard 7.1 provides that disbarment is generally ... appropriate when a ... ...
-
In re Vanderslice
... ... Applying Standard 5.11 to Respondent's conduct is also consistent with Delaware precedent. 105 In Davis, Davis had been sanctioned with a one-year suspension for false notarizations, failure to safeguard fiduciary funds, and failure to pay taxes. At the end of his suspension, Davis sought reinstatement and submitted a reinstatement questionnaire to ODC. In the course of investigating the accuracy of ... ...
-
So Help Me God
...upon any oath or affirmation legally administered in any cause, matter or proceeding before any ... notary public"). [23] In re Davis, 43 A.3d 856, 863 (Del. 2012), citing Carol Rice Andrews, The Lawyer's Oath: Both Ancient & Modern, 22 Geo. J. Legal Ethics 3, 4 (2009). See also, In re Memb......
-
“so Help Me God” the Lawyer’s Oath of Admission and the Rules of Ethics
...upon any oath or affirmation legally administered in any cause, matter or proceeding before any ... notary public”). [23] In re Davis, 43 A.3d 856, 863 (Del. 2012), citing Carol Rice Andrews, The Lawyer’s Oath: Both Ancient & Modern, 22 Geo. J. Legal Ethics 3, 4 (2009). See also, In re Memb......
-
Human Rights and Lawyer's Oaths
...re Code for Resolving Professionalism Complaints stated that 151. DEL. LAWS.’ RULES OF PROF’L CONDUCT R. 3.3, 8.1, 8.4. 152. In re Davis, 43 A.3d 856, 865–66 (Del. 2012). 153. Id. 154. Id. (“When there can be no reliance upon the word or oath of a party, he is, manifestly, disqualified, an......