In re Mccann, 385,2005.

• Decision Date: 01 November 2005
• Docket Number: No. 385,2005.,385,2005.
• Citation: 894 A.2d 1087
• Parties: In the Matter of a Member of the Bar of the Supreme Court of Delaware: Richard S. McCANN, Respondent.
• Court: Supreme Court of Delaware

Page 1087

894 A.2d 1087

In the Matter of a Member of the Bar of the Supreme Court of Delaware Richard S. McCANN, Respondent.

No. 385,2005.

Supreme Court of Delaware.

Submitted: October 12, 2005.

Decided: November 1, 2005.

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

Disbarment ordered.

Jeffrey M. Weiner, of Fox Rothschild, Wilmington, DE, for Richard S. McCann, Esquire.

Patricia Bartley Schwartz, of the Office of Disciplinary Counsel, Wilmington, DE.

Before BERGER, JACOBS and RIDGELY, Justices.

PER CURIAM:

This is an attorney disciplinary proceeding. The Board on Professional Responsibility (Board) filed a Report finding numerous instances of professional misconduct by respondent, Richard S. McCann. The Report, which is appended to this opinion and incorporated herein by reference, concludes that McCann should be suspended for three years. McCann advised this Court that, although he disagrees with some of its findings, he would not file any objections to the Report. The Office of Disciplinary Counsel (ODC) did file an objection to the recommended sanction, arguing that McCann should be disbarred. After carefully considering the record, we conclude that the appropriate sanction is disbarment.

Factual and Procedural Background

ODC filed a Petition for Discipline with the Board on December 1, 2004. After a two-day hearing, the Board found, by clear and convincing evidence, that McCann violated the Delaware Rules of Professional Conduct (Rules). McCann's misconduct spanned almost a decade, and resulted in 37 violations of 6 different Rules. In summary, the record establishes that:

1) McCann failed to maintain proper books and records relating to client funds, but falsely certified that he was in compliance for the years 2000-2002;

2) He failed to timely file and pay federal and state payroll taxes, but falsely certified that he was in compliance for the years 1998-2003;

3) He failed to timely pay his personal state and federal income taxes. As of the hearing date, McCann had tax liens totaling more than $140,000, covering the period from 1987-2002;

4) McCann failed to timely file inventories, disburse funds, and close seven estates. In one case, the final distribution was not made until 19 years after the decedent died. In another case, McCann lost needed records, which were left sitting in boxes for years. Several estates required attention during the period from 1996-1998, when McCann was suspended from the practice of law, but McCann never made arrangements for another lawyer to handle those matters. In addition, McCann paid himself excessive attorneys' fees for his administration of some of those estates.

The Board recommended that McCann be suspended for three years and that, if he is reinstated, McCann be required to practice in association with other lawyers, without responsibility for financial matters or bookkeeping.

Supreme Court Review

The Supreme Court's authority and the governing standards in matters of attorney discipline are settled:

This Court has the inherent and exclusive authority to discipline members of the Delaware Bar. Sanctions recommended by the Board often aid in our determination, but are not binding on this Court. The sanctions are not designed to be either punitive or penal. The relevant factors to be considered in determining an appropriate sanction are: a) the nature of the duty violated; b) the lawyer's mental state; c) the actual/potential injury caused by the misconduct; and d) the existence of aggravating and mitigating circumstances. In addition, to assure fairness, the sanction must be consistent with prior disciplinary decisions.¹

McCann's misconduct was serious and persistent. He violated duties to his clients by failing to provide competent representation; failing to act with reasonable diligence and promptness; charging excessive fees for his services; failing to safeguard his clients' property; and failing to promptly distribute funds to estate beneficiaries. He also violated duties to the profession and the administration of justice by, among other things, failing to pay payroll taxes; failing to pay personal income taxes; repeatedly falsely certifying his compliance with record keeping and tax obligations; knowingly disobeying applicable rules of the Court of Chancery; and knowingly disobeying this Court's prior suspension order.

McCann's mental state, at least with respect to his failure to pay taxes and his disregard of court orders and rules, was knowing. In addition, his neglect and delay in handling his clients' estates created the potential for serious harm. Finally, the only mitigating factor is McCann's remorse. The aggravating factors include his extensive pattern of misconduct; McCann's substantial legal experience; his failure to cooperate with ODC; and his prior disciplinary record.

Standard 8.1 of the ABA Standards for Imposing Lawyer Sanctions provides that disbarment is generally appropriate when a lawyer "intentionally or knowingly violates the terms of a prior disciplinary order and such violation causes injury or potential injury to a client, the public, the legal system, or the profession ...." McCann knowingly violated the terms of his prior suspension by failing to turn all of his files over to an active member of the bar; by failing to notify all parties of his suspension; and by paying himself attorney's fees from estates during his suspension. That misconduct caused potential injury to the estate beneficiaries. Thus, disbarment is the appropriate sanction.

Consideration of our precedents confirms this conclusion. In In re Benge,² the respondent had a significant prior disciplinary record; engaged in misconduct in his handling of several estate matters; charged unreasonable fees; and knowingly disobeyed a court order. McCann has a similar disciplinary record and engaged in more serious misconduct than Benge. In addition to mishandling estate matters, overcharging, and violating court orders, McCann failed to pay personal and payroll taxes for many years. This Court disbarred other attorneys for comparable misconduct.³

Conclusion

Based on the foregoing, it is hereby ORDERED that:

1) Richard S. McCann be, and hereby is, disbarred from membership in the Delaware Bar. His name shall be stricken immediately from the roll of attorneys entitled to practice before the courts of this State.

2) ODC shall petition the Court of Chancery for the appointment of a Receiver for McCann's law practice, and McCann shall cooperate with the receiver.

3) McCann is required to pay all costs of this disciplinary proceeding upon receipt of ODC's statement of costs.

4) ODC shall disseminate this opinion and order in accordance with Rule 14 of the Delaware Lawyers' Rules of Disciplinary Procedure.

APPENDIX

BOARD ON PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF DELAWARE

IN THE MATTER OF A MEMBER OF THE BAR OF THE SUPREME COURT

OF DELAWARE: RICHARD S. MCCANN, RESPONDENT.

CONFIDENTIAL

Board Case Nos. 2, 35, 49,2003

No. 385,2005

REPORT OF THE BOARD OF PROFESSIONAL RESPONSIBILITY

This is the report of the findings and recommendations of the Board of Professional Responsibility of the Supreme Court in the above captioned matter. A Hearing was commenced on January 12, 2005 in the Supreme Court Hearing Room, 11th Floor, Carvel State Building, 820 North French Street, Wilmington, Delaware. A second day of the Hearing was held on January 28, 2005 in the same location. By agreement of counsel and the Board, the record remained open following the January 28, 2005 hearing for a written submission from the Respondent regarding mitigating factors in the imposition of disciplinary sanctions. The Respondent's supplemental submission was received on March 2, 2005. The Hearing record was closed on March 14, 2005.

The Panel of the Board of Professional Responsibility consisted of Clay T. Jester, Esquire, Donald A. Blakey, Ph.D., and Mark L. Reardon, Esquire (Chair). The Office of Disciplinary Counsel ("ODC") was represented by Patricia B. Schwartz, Esquire. Respondent Richard S. McCann, Esquire appeared pro se.

I. Procedural History

The Office of Disciplinary Council ("ODC") filed a Petition for Discipline with the Board on Professional Responsibility of the Supreme Court of the State of Delaware ("the Board") on December 1, 2004. As set forth in more detail below, the ODC asserted that Richard S. McCann, Esquire ("Respondent") violated the Delaware Rules of Professional Conduct ("the Rules"). The Respondent filed a response to the ODC's petition for discipline on December 22, 2004. At the Hearing, seven (7) witnesses provided testimony, including Respondent who testified on his own behalf. Also, the ODC presented an array of documents in support of the Petition for Discipline.

II. The Alleged Violations of Professional Conduct

The ODC alleges Respondent violated six (6) specific Delaware Rules of Professional Conduct in a variety of ways. As an overview, the ODC alleges Respondent violated Rule 1.1 by failing to provide competent representation in several estate matters; Rule 1.3 by failing to act with reasonable diligence and promptness in several estate matters; Rule 1.5(a) by charging unreasonable fees in several estate matters; Rule 1.15(a) by failing to safeguard client funds by having more than $500.00 of his own funds in a client escrow account and by failing to safeguard the property of his clients by not keeping the records of several estate matters in an orderly fashion; Rule 1.15(b) by failing to pay his payroll taxes in a timely manner and by failing to timely deliver funds to beneficiaries of several estates; Rule 1.15(d) by failing to maintain the books and records of his client escrow accounts and estate accounts in an orderly fashion; Rule 3.4(c) by knowingly disobeying an obligation under the Court of Chancery Rules and disobeying a 1995 decision of the Delaware Supreme...