In re Reardon

• Decision Date: 06 September 2000
• Docket Number: No. 1998, No. 384, No. 1997., No. 68 | 95
• Citation: 759 A.2d 568
• Parties: In the Matter of a Member of the Bar of the Supreme Court of the State of Delaware Dennis A. REARDON, Respondent.
• Court: Supreme Court of Delaware

759 A.2d 568

In the Matter of a Member of the Bar of the Supreme Court of the State of Delaware Dennis A. REARDON, Respondent.

Nos. 384, 1998, , 1997.

Supreme Court of Delaware.

Submitted: July 25, 2000.

Decided: September 6, 2000.

Dennis L. Schrader, Wilson, Halbrook & Bayard, Georgetown, Delaware, for respondent.

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

Before VEASEY, Chief Justice, HOLLAND, and BERGER, Justices.

PER CURIAM.

The matter before the Court is a lawyer disciplinary proceeding. This Court has weighed the findings of the Board on Professional Responsibility (Board), the aggravating and mitigating factors, the ABA Standards for Imposing Lawyer Sanctions, and other disciplinary cases. A central determination in this case is whether the specific instances of misconduct found in the current case, when juxtaposed with the lawyer's prior record of ethical violations, constitutes a "pattern" of neglect warranting the imposition of the sanction of suspension. We hold that the record in this case does not establish a "pattern."

A panel of the Board issued its Final Report with regard to two cases of professional misconduct involving the respondent, Dennis A. Reardon. Based upon the stipulation of facts presented jointly by Reardon and the Office of Disciplinary Counsel (ODC), in addition to testimony presented at a hearing, the Board found that Reardon's conduct in both cases violated Rule 1.3 of the Delaware Lawyers' Rules of Professional Conduct (DLRPC). The Board recommended that Reardon be suspended from the practice of law for six months to be followed by a two year period of probation subject to certain conditions including a practice monitor and quarterly reporting. Additionally, the Board recommended permanent limitations on Reardon's practice of law.

Reardon filed in this Court objections to the Board's Final Report, contending that the sanction of suspension recommended by the Board was inappropriate. ODC responded to Reardon's objections. After hearing oral argument, the Court requested the parties to submit supplemental briefing on the issue of sanctions specifically considering the ABA Standards for Imposing Lawyer Sanctions (ABA Standards) and decisions applying the ABA Standards.

Upon careful consideration of all of the parties' submissions, the Court has determined that the Board's findings of violations should be accepted. The Court has further determined that the following sanctions should be imposed: (a) a public reprimand; (b) a two year period of public probation subject to certain strict terms, conditions, and limitations; and (c) the institution of permanent conditions and limitations on Reardon's practice of law in the future.

Facts

ODC filed a petition with the Board alleging eight counts of violations of the DLRPC by Reardon in two separate matters. Reardon filed an answer to the petition and the parties entered into a conditional admission in which Reardon admitted two counts of the eight count petition. The parties also presented to the Board an order of discipline by consent, which proposed limitations on Reardon's practice, a public reprimand, and a one year public probation. The Board accepted the conditional admission and the proposed order of discipline by consent and submitted its recommendation to this Court.

Upon review pursuant to Rule 9(e) of the Rules of the Board on Professional Responsibility,¹ this Court did not accept the conditional admission and proposed order of discipline by consent. Accordingly, the matter was remanded for a new hearing before a new panel. At the second hearing, the ODC and Reardon again presented the Board with a stipulation of facts with respect to both matters.

The following statement of facts is taken from the Board's Final Report:

I. Board Case No. 68, 1997 [Atlantic Roofing Case]

In 1994, John T. Evans (Evans), trading as Atlantic Roofing Company (Atlantic), filed suit against Robert Poinsett (Poinsett) and Scarborough Village (Scarborough) a condominium complex in Sussex County, Delaware. Atlantic had sought to collect $3,755 in damages owed for work done on 48 chimneys at the condominium complex. In defense of the claim, Scarborough raised the quality of Atlantic's workmanship and also asserted a counterclaim relating to additional roofing work done by Atlantic involving certain ridge vents seeking offsetting damages in the amount of $5,760.00. Respondent entered his appearance on behalf of Evans and Atlantic in 1995. He accepted this representation even though civil litigation was not a type of law generally practiced by him. The reason that Respondent accepted the case is that Evans' assistant, Mr. Robert Vignola, had been an acquaintance of Respondent since high school. Evans conceded the faulty nature of the chimney work and informed Respondent that he was willing to fix the problem. However, Evans contended that the ridge vent problem was not his responsibility.

Trial was scheduled in Superior Court for October 18, 1995 and following the pre-trial conference held on October 4, 1995, Respondent approached Scarborough's counsel, Mr. Robert Wolhar (Wolhar), regarding settlement of the case. One day prior to the hearing, Respondent signed a Stipulation of Settlement. Respondent's understanding of the Stipulation was that if Atlantic fixed the chimneys, Scarborough would not pursue its cross-claim for damages on the ridge vents. Respondent signed the Stipulation in reliance upon his understanding that Wolhar would not pursue litigation if Atlantic followed through and fixed the chimneys.

The Stipulation, however, provided that Atlantic would not only fix the chimneys and relinquish its claim for $3,755, but that Atlantic would also repair the ridge vents at Atlantic's own cost and that Scarborough could seek a money judgment if Atlantic failed to make the repairs. When Respondent signed this Stipulation, he indicated that he had discussed it with Evans and Vignola. While Evans had agreed to fix the chimneys, he adamantly denied any responsibility for the ridge vents. Respondent called Wolhar and informed him that Evans would fix the chimneys but not the roofing vents. Evans and Vignola were present in the room when Respondent placed the call to Wolhar, but only heard Respondent's half of the conversation. According to Respondent, Wolhar agreed that if Evans fixed the chimneys, Scarborough would not pursue judgment on the ridge vents. This agreement was not reduced to writing and Wolhar subsequently disputed that such an agreement had been reached.²

Atlantic ultimately repaired the chimneys and by letter dated December 4th, Wolhar informed Scarborough that the chimney work had been completed and asked permission to dismiss the case. Instead, Scarborough insisted that Atlantic comply with the terms of the Stipulation and fix the roof vents as well. By letter dated December 29, 1995, Wolhar informed Respondent that Scarborough would move to have judgment entered pursuant to the Stipulation if Evans failed to pay the amounts due to fix the ridge vents. In January of 1996, Scarborough filed a motion for default judgment. The hearing was scheduled for February 16, 1996. Respondent did not appear at this hearing and did not advise Evans of the consequences of a default judgment. On February 16, 1996, the Superior Court entered a default judgment awarding Scarborough $7,944 plus costs based upon Atlantic's failure to comply with the Stipulation and Order. In June, 1996, Scarborough levied on certain property of Evans and eventually sold it at a Sheriff's sale. There was a subsequent proceeding in Superior Court under Civil Rule 60(b) for relief from the judgment. During that proceeding, Wolhar failed to acknowledge that he and Respondent had had an understanding contrary to the terms set forth in the Stipulation. Respondent has admitted that his actions in this matter constitute a violation of the Delaware Lawyers' Rules of Professional Conduct (DLRPC) Rule 1.3. This rule provides that a lawyer shall act with reasonable diligence and promptness in representing a client.

II. Board Case No. 95, 1997 [Pierce and Miller Case]

In 1993, Respondent represented Harry N. Miller, III (Miller) on several traffic charges relating to an accident that he had caused in September of 1993. All charges were nolle prossed except for the charge of reckless driving of which Miller was found guilty.

In September, 1995, Ms. Deborah Pierce (Pierce), the owner of the car Miller was driving when he had the accident, informed the Respondent that she had had a civil complaint that had been filed against Miller and her arising out of the accident. She brought the complaint to Respondent who reviewed it and retained it. The complaint sought to recover compensation for personal injury. The complaint was filed in the Court of Common Pleas on September 1, 1995 and served on Miller and Pierce on September 26, 1995. Pierce provided the Respondent with various documents. Although Respondent did not handle this type of matter as a part of his practice, and in spite of the fact that he had concluded that Pierce had neither a defense to the suit nor insurance coverage, he informed Pierce that he would look into the matter. Subsequent to that time, Pierce called Respondent's office on several occasions. Respondent had failed to make clear to her that he did not represent her or Miller in the matter. Pierce reasonably believed that, based upon documents that Respondent had retained and his statement that he would look into the matter, Respondent would represent her and Miller in the civil suit. On October 20, 1995, a default judgment in the amount of $47,000 was entered against Miller and Pierce. Neither Respondent nor defendants received notice of the default judgment. The default judgment was not made known to Miller until he became eligible for reinstatement of his driver's license in May of 1

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