In re Guy

• Decision Date: 28 June 2000
• Docket Number: No. 45, No. 329, No. 2000., No. 1999
• Citation: 756 A.2d 875
• Parties: In the Matter of a Member of the Bar of the Supreme Court of Delaware: Samuel L. GUY, Respondent.
• Court: Supreme Court of Delaware

756 A.2d 875

In the Matter of a Member of the Bar of the Supreme Court of Delaware: Samuel L. GUY, Respondent.

Nos. 329, 1999, 45, 2000.

Supreme Court of Delaware.

Submitted: May 9, 2000.

Decided: June 28, 2000.

Samuel L. Guy, Wilmington, Delaware, respondent pro se.

Mary M. Johnston, Chief Disciplinary Counsel, Office of Disciplinary Counsel, Wilmington, Delaware.

Before WALSH, HOLLAND, and HARTNETT, JJ.

PER CURIAM:

These consolidated matters are before the Court for review and imposition of sanctions following separate proceedings before the Board of Professional Responsibility (the "Board") directed against Samuel L. Guy ("Respondent"). In No. 329, 1999 (Board Case Nos. 20 and 21, 1998), the Board found that Respondent had violated certain of the Delaware Lawyers Rules of Professional Conduct (the "DLRPC") and recommended a sanction of a public reprimand. In No. 45, 2000 (Board Case Nos. 57, 69, and 90, 1996, 3 and 107, 1997), the Board also determined that Respondent had violated certain provisions of the DLRPC, but found him not in violation of certain others. The Board recommended a sanction of six months suspension.

In written objections to the Board's decision in both cases, Respondent did not directly address the Board's findings but claims the Board's actions are "part of the legal systems [sic] systematic harassment" of him. Respondent repeated those claims in argument before this Court, contending, in effect, that he has been discriminated against because of his race and singled out for disciplinary treatment different from that imposed upon other members of the Delaware Bar.

As to the Board's decision in No. 329, 1999, the Office of Disciplinary Counsel (the "ODC") supports the Board's findings as to violations but contends that its sanction recommendation of a public reprimand was made without taking into consideration Respondent's disciplinary record and should not be approved. The ODC contends that, in No. 45, 2000, the Board should have found Respondent to have violated certain additional disciplinary rules and that the Board's recommendation of six months' suspension is inadequate.

We will examine separately the Board's findings in each of these appeals and then consider the issue of sanctions based on the consolidated record. Because the events that form the basis for the Board's action in No. 45, 2000, occurred earlier chronologically than the matters to be considered in No. 329, 1999, we will consider the matters in reverse order:

I. No. 45, 2000

The Board's statement of facts and conclusions of law with respect to the underlying professional conduct are set forth in its report of January 17, 2000, which is quoted in pertinent part as follows:

Board Case No. 57, 1996

In the spring of 1996, Respondent represented a defendant in a criminal matter in the Superior Court of the State of Delaware in and for Sussex County. After the trial of the matter ended with a verdict, several of the former jurors in the matter were personally contacted by a private investigator allegedly acting on behalf of the defendant. After the presiding judge in the matter was made aware of the post-trial juror contacts, he held an office teleconference with counsel in the matter. During that call, he indicated his concern about the possibility that post-trial juror contacts had been made at the direction of Respondent in possible violation of The Delaware Lawyers' Rules of Professional Conduct.

After this matter was reported to the ODC, Respondent was sent a letter by the ODC dated July 29, 1996 informing him that a file had been opened to investigate his conduct in the matter and requesting his written response as to whether any post-trial juror contacts had occurred at his direction or suggestion. The initial letter from the ODC set a response date of August 16, 1996. After neither receiving a request for an extension of time nor having the letter returned as undeliverable, the ODC sent a second inquiry letter on August 30, 1996 by certified mail. That second letter was returned as unclaimed. On September 26, 1996, the ODC sent another inquiry letter by certified mail; the ODC received the certified mail receipt indicating that Respondent had signed for the letter on September 28, 1996 but the ODC never received a response to the letter. On November 18, 1996, the Respondent delivered a letter to the ODC in response to the requests for information.

The members of the Panel found that, based on the evidence submitted, there was clear and convincing evidence of a violation of Rule 8.1(b) of The Delaware Lawyers' Rules of Professional Conduct, which provides that a lawyer shall not knowingly fail to respond to a lawful request for information from a disciplinary authority.

Board Case No. 61, 1996

In July 1996, Respondent represented a criminal defendant in a matter in the Superior Court of the State of Delaware in and for Kent County. On July 9, 1996, the Honorable Henry duPont Ridgely, the presiding judge in the matter, sent a letter to Respondent informing him that although trial had been scheduled to begin in the matter at 9:30 a.m. that day, Respondent had not appeared. The letter directed that Respondent show cause in writing within ten days why sanctions should not be imposed. On July 19, 1996, Respondent sent a responsive letter to Judge Ridgely.1 Included within the July 19 letter were the following two paragraphs:

1 In the response, Respondent asserted that on June 5, 1996, he had a telephone conference with a Court case scheduling employee during which he was told that trial would be held on July 16, 1996.

It has been my experience that given your public statements against me, the case scheduling employee may not be allowed to tell the truth. You have backed yourself into a corner and have no choice but to determine that I missed [court] on July 9, 1996 even though it was not scheduled for that date with me. If you do not do this, you would have to apologize to me for the wrong and harmful statements you made in the newspaper. During my 36 years on earth, I have never observed a white person in a position of power such as yourself apologize to a black person even when they know they are wrong. It is my belief that you made the statement that you made with the intent to do harm. Your position gives you the right to do so. I believe that the statements I read in the newspapers that are alleged to be quotes from you are evidence of the differential treatment afforded black lawyers and show open contempt for me as a black lawyer. You intentionally attempted to drive a wedge between lawyer and client and maybe you were successful. You intentionally tried to discourage other people from having me represent them. Again, you have been given the right to do so.

It would have been pretty interesting if on July 10, 1996 it was determined that I was dead. You ought to re-read your statements with that thought in mind. Once you do this it should be apparent to you that your statements show no regard for me as a human being. That again is your right. If you treat white lawyers this way, it is not racism.

On July 22, 1996, Judge Ridgely issued an order in the case holding that those two paragraphs of the letter "wrongfully and improperly impugn the integrity, fairness and impartiality of this Court" and ordering that "Respondent's undignified and discourteous statements shall be stricken from the record."

The ODC was made aware of the foregoing incident. By letters dated August 1, 1996, August 30, 1996 and September 26, 1996, the ODC advised Respondent that a matter had been opened with respect to his letter to Judge Ridgely and requesting Respondent's written position as to the underlying facts. No response was received to any of the letters within the specified time periods and it was not until November 18, 1996 that Respondent delivered a response letter.

The Panel found that there was clear and convincing evidence of violations of Rule 8.1(b) and Rule 8.2, which provides that a lawyer "shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge." In considering whether Respondent's conduct had violated Rule 3.5(c), which prohibits a lawyer from engaging in "undignified or discourteous conduct which is degrading to a tribunal," the Panel noted that the Delaware Supreme Court has not had occasion to address directly the question of whether a letter written by a lawyer can be said to violate that specific Rule. And See Geoffrey C. Hazard, Jr., The Law of Lawyering § 3.5:401 at 660 (1999). The Court did, however, approve a report by the Board in another matter which found a violation of Rule 3.5(c) relating to a letter sent to a judge. In re Guy, Del .Supr., 670 A.2d 1338 (1995). In any event, the Panel did not have to decide the issue, because there was clear and convincing evidence that the letter violated the requirements of Rule 8.2. In reaching this conclusion, the Panel specifically considered Respondent's argument that his rights of free speech entitled him to make those remarks. The Panel concluded that Respondent's status as a member of the Bar of the Supreme Court of the State of Delaware imposes upon him ethical obligations which limit his constitutional free speech rights when he is making statements in his capacity as a lawyer. See e.g., Gentile v. State Bar of Nevada, 501 U.S. 1030, 1081-82, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991) (O'Connor, J., concurring)

("[l]awyers are officers of the court and, as such, may legitimately be subject to ethical precepts that keep them from engaging in what otherwise might be constitutionally protected speech"); In re Snyder, 472 U.S. 634, 644-45, 105 S.Ct. 2874, 86 L.Ed.2d 504 (1985) ("[t]he license granted by the court requires members of the bar to conduct themselves in a matter compatible with the role of courts in the administration of justice")...