In re Shamers
| Decision Date | 20 May 2005 |
| Docket Number | No. 67, 2005.,67, 2005. |
| Citation | 873 A.2d 1089 |
| Parties | In the Matter of a Member of the Bar of the Supreme Court of the State of Delaware, David S. SHAMERS, Respondent. |
| Court | United States State Supreme Court of Delaware |
David S. Shamers, Esquire, Wilmington, Delaware.
Mary Susan Much, Esquire, Office of Disciplinary Counsel, Wilmington, Delaware.
Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS and RIDGELY, Justices, constituting the Court en Banc.
This matter is before the Court for disciplinary action upon review of the February 2005 Final Report and Recommendation ("Final Report") of the Board on Professional Responsibility ("Board"). The Respondent, David S. Shamers ("Shamers"), has been a member of the Bar of this Court since 1982. The Board has recommended a public reprimand, a two-year suspension with conditions and a three-year public probation following suspension, with additional conditions.
The Office of Disciplinary Counsel ("ODC") agrees with the two-year suspension, but objects to the Board's recommendation that Shamers be allowed to petition for reinstatement one year from the date of the suspension, subject to conditions. The ODC argues that the Board's recommendation is not consistent with prior disciplinary cases. The ODC suggests that Shamers' ability to apply for reinstatement should vest only upon the conclusion of a two-year suspension. The ODC also requests authorization to petition the Chancery Court for a Receiver of Shamers' law practice.
After careful consideration, we have decided that a two-year suspension is an appropriate sanction. We also direct the ODC to petition the Court of Chancery for a Receiver of Shamers' law practice. If Shamers petitions for reinstatement after his two-year suspension, any appropriate conditions will be addressed at that time, in the event that he otherwise demonstrates his rehabilitation.
Shamers has been engaged in private solo practice with a law office in Wilmington. Shamers' wife assisted him with his financial books, records, tax filings and payments. The ODC initially became aware of Shamers' misconduct on July 22, 2003, when one of his client's notified the ODC that a check issued from Shamers' escrow account had been returned for insufficient funds.
The ODC requested an investigative and compliance audit of Shamers' financial books and records. Joseph McCullough, an auditor from the Lawyer's Fund for Client Protection, attempted to perform the audit but was unable to complete that task due to discrepancies in Shamers' escrow account and the nonexistence of a client subsidiary ledger. The follow-up audit revealed the professional misconduct that led to the filing of these proceedings.
The ODC filed a Petition for Discipline on October 7, 2004. The petition alleged Shamers violated the following Delaware Lawyers' Rules of Professional Conduct: 1) Rule 1.15(a),2 for failure to maintain complete records of escrow account funds; 2) Rule 1.15(b), for failure to safeguard client funds; 3) Rule 1.15(d), for failure to maintain books and records; 4) Rule 1.15A, for failure to designate his attorney trust account as a 1.15A account; 5) Rule 5.3, for failure to supervise non-lawyer assistants, i.e., his wife and nephew, which gave his nephew the opportunity to embezzle client funds; 6) Rule 8.4(c), for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation by misrepresenting information on his Certificates of Compliance; 7) Rule 8.4(d), for engaging in conduct prejudicial to the administration of justice by misrepresenting information on his Certificates of Compliance; and 8) Rule 8.4(d), for engaging in conduct prejudicial to the administration of justice by failing to file federal and state tax returns for three years (2000, 2001 and 2002).
No answer to the Petition for Discipline was filed. Pursuant to Rule 9(d)(2) of the Delaware Lawyers' Rules of Disciplinary Procedure ("Rules"), all of the allegations and charges were deemed admitted.
The Board found that the following aggravating factors exist in this disciplinary matter:
1) Shamers has engaged in a pattern of misconduct, including (a) engaging in a pattern of conduct involving false certifications of compliance to the Supreme Court; and (b) failing to satisfy basic financial obligations relating to the proper maintenance of law practice books and records and the filing and payment of federal and state income taxes [ABA Standard for Imposing Lawyer Discipline ("ABA Standard") § 9.22(c)];
2) Shamers' misconduct in the pending matter consists of multiple offenses [ABA Standard § 9.22(d)];
3) Shamers' failure to file and pay federal and state income taxes federal violation of Rule 8.4(b) as construed by the Interpretive Guideline, constitutes illegal conduct [ABA Standard § 9.22(k)]; and
4) Shamers has substantial experience in the practice of law, having been admitted to the Delaware Bar in 1982 [ABA Standard § 9.22(i)].
The Board found that the following mitigating factors exist in this disciplinary matter:
1) Shamers has no prior disciplinary record [ABA Standard § 9.32(a)];
2) Shamers has now filed Federal and State income tax returns. The ODC questions Shamers' efforts in addressing the books and records issues presented. The Board believes Shamers is sincere and has exhibited remorse, but questions his judgment and notes his apparent inability, even in the face of these proceedings, to take appropriate steps to bring his books and records into compliance. This may be explained by his continued, but misplaced, reliance on his wife, who despite obvious affection and devotion to her husband, appears unable to bring the books and records into compliance. It has been well over a year since the first audit, and almost one and one-half years since the incident in July 2003 that brought these matters to the attention of the ODC 3) Shamers has fully cooperated with the ODC, and in the proceedings before the Board [ABA Standard § 9.32(e)];
4) Shamers has recognized the wrongfulness of his conduct, as evidenced by (a) his admissions to all of the allegations made and the violations charged in the Petition for Discipline (he testified that he did not file an answer because the allegations are true); and (b) his testimony. Shamers has also expressed remorse for the misconduct although the ODC questions his remorse [ABA Standard § 9.32(1)]; and
5) Shamers volunteers his time to serve as a guardian ad litem for children (Family Court) and to serve as a special master in Family Court. He apparently has a history of serving clients in need, even where it may not be in his economic best interests to do so.
After considering the aggravating and mitigating factors, the Board determined that Shamers should be suspended from the practice of law. The Board recommended a public reprimand, a two-year suspension, with conditions, and the ability to petition for reinstatement after one year from the date of the suspension. As grounds for this recommendation, the Board relied upon its finding that, (1) an "extended suspension is likely to have a significant negative financial impact on Shamers," based on his testimony that it would be his "economic downfall," and Shamers' belief that 2005 could generate the needed income to pay his current tax liabilities; and (2) its analysis of this Court's recent decision in In re Landis.3 The Board also recommended a three-year public probation upon Shamers' reinstatement to the practice of law.
The ODC objected to the Board's recommendation. The ODC argues that Shamers should be allowed to petition for reinstatement only at the termination of his two-year suspension. The ODC contends that the Board's sanction is inconsistent with prior disciplinary decisions. The ODC also argues that the Board's concern for the financial impact the suspension would have on Shamers is inappropriate, given the importance of protecting the public from the egregious conduct that is admitted in this case. Finally, the ODC requests that this Court allow it to petition the Chancery Court for a Receiver of Shamers' law practice, due to Shamers' continued inability to remedy his escrow accounting deficiencies.
Shamers also objects to the Board's recommendations. He argues that it is virtually impossible for a private attorney to comply with the Delaware Rules of Professional Conduct without repercussions. Shamers submits that his sanction should consist of a public reprimand and a prohibition from all real estate settlements and refinance work.
This Court "has an obligation to review the record" in a disciplinary proceeding "independently and determine whether there is substantial evidence to support the Board's factual findings."4 This Court reviews the Board's conclusions of law de novo.5 As to the Board's recommendation of an appropriate sanction, this Court has the exclusive authority for disciplining members of the Delaware Bar. Therefore, we have stated that "while the Board's recommendations on the appropriate sanction to be imposed are helpful, they are not binding on this Court."6 This Court "has wide latitude in determining the form of discipline, and [that it] will review the recommended sanction to ensure that it is appropriate, fair and consistent with ... prior disciplinary decisions."7
The Board found that Shamers failed to comply with various books and recordkeeping rules, failed to adequately supervise his bookkeeper, and engaged in misconduct involving fraud, deceit, and misrepresentation and misconduct that is prejudicial to the administration of justice. Specifically, the Board found that Shamers: 1) failed to maintain records of cash receipts/disbursements, bank reconciliations, client listings, and a client subsidiary...
To continue reading
Request your trial
-
In re PRB Docket No. 2016-042
...525, 654 S.E.2d 533 (2007) (failure to supervise embezzling employee violated Rules 5.3(a), (b), and (c), and Rule 1.15(a)); In re Shamers, 873 A.2d 1089 (Del. 2005) (failure to supervise embezzling employee violated Rule 5.3 and Rule 1.15).3. Rule 1.15 Rule 1.15 of the Vermont Rules of Pro......
-
In re Number
...654 S.E.2d 533 (S.C. 2007) (failure to supervise embezzling employee violated Rules 5.3(a), (b), and (c), and Rule 1.15(a)); In re Shamers, 873 A.2d 1089 (Del. 2005) (failure to supervise embezzling employee violated Rule 5.3 and Rule 1.15).3. Rule 1.15 Rule 1.15 of the Vermont Rules of Pro......
-
In re Fountain
...and involved a "systemic failure" and caused injury to clients. ODC's Objections The ODC submits that this Court's recent decision in In re Shamers is the most analogous Delaware disciplinary precedent.8 The ODC argues that a three-year suspension is appropriate in this matter, based upon: ......
-
In re Enna
...David N. Rutt, Esq. Board Chairman Board on Professional Responsibility 1. In re Shamers, 873 A.2d 1089, 1096 (Del. 2005). 2. In re Agostini, 632 A.2d 80, 81 (Del. 3. In re Tenenbaum, 918 A.2d 1109, 1114 (Del. 2007). 4. In re Thompson, 911 A.2d 373, 376 (D......