In re Sisk
| Citation | 54 A.3d 257 |
| Decision Date | 25 September 2012 |
| Docket Number | No. 346,2012.,346 |
| Parties | In the Matter of a Member of the Bar of the Supreme Court of the State of Delaware: Mark D. SISK, Respondent. |
| Court | United States State Supreme Court of Delaware |
OPINION TEXT STARTS HEREBoard Case Nos.2011–0163–B, 2011–0164–B, 2011–0165–B, 2011–0443–B.
Before STEELE, Chief Justice, HOLLAND and BERGER, Justices.
This 25 day of September 2012, it appears to the Court that the Board on Professional Responsibility has filed a Report on this matter pursuant to Rule 9(d) of The Delaware Lawyers' Rules of Disciplinary Procedure. The Office of Disciplinary Counsel (ODC) filed objections to the Board's Report, and counsel for Respondent has responded to those objections. The Court has reviewed the matter pursuant to Rule 9(e) of The Delaware Lawyers' Rules of Disciplinary Procedure and approves the Board's Report as to the violations by Respondent but disagrees with the sanctions recommended therein.
NOW, THEREFORE, IT IS ORDERED that the Report filed by the Board on Professional Responsibility on June 26, 2012 (copy attached) is hereby APPROVED as to its findings of violations by Respondent, with the Court concluding that Respondent's violations were knowing and, while mitigating factors of personal illness, the death of a parent, and the dissolution of his law firm were considered, the appropriate sanction is suspension.
IT IS FURTHER ORDERED that:
1) The Respondent shall be prohibited and suspended from engaging in the practice of law for a period of six months and one day and receive a public reprimand;
2) During the suspension, the Respondent shall conduct no act directly or indirectly constituting the practice of law, including the sharing or receipt of any legal fees. The Respondent shall also be prohibited from having any contact with clients or prospective clients or witnesses or prospective witnesses when acting as a paralegal, legal assistant, or law clerk under the supervision of a member of the Delaware Bar, or otherwise;
3) The contents of the Board's report shall be made public:
4) The Respondent shall fully cooperate with the ODC in its efforts to monitor his compliance with this Order;
5) This Order shall be disseminated by the ODC in accordance with Rule 14 of the Delaware Lawyers' Rules of Disciplinary Procedure;
6) The ODC is directed to file within ten days of the date of this Order the costs of the disciplinary proceedings. Thereafter, the Respondent is directed to have all costs paid within thirty days.
The matter is hereby CLOSED.
In the Matter of a Member of the Bar of the Supreme Court of Delaware
MARK D. SISK Respondent.
CONFIDENTIAL
This is the report on proceedings instituted by a Petition for Discipline filed on January 5, 2012 (the “Petition”) by the Office of Disciplinary Counsel (“ODC”). The ODC seeks sanctions against Mark D. Sisk (“Sisk” or “Respondent”) in four different matters. A hearing was held on April 19, 2012 in the Supreme Court Hearing Room, 11th Floor, Carvel State Building, 820 North French Street, Wilmington, Delaware (“the Hearing”). The members of the panel for the Board were D. Benjamin Snyder, Esquire, Mr. John Stafford and Wayne J. Carey, Esquire as Chair (the “Panel”). Frederick W. Lobst, Esquire and Joelle E. Polesky, Esquire represented the ODC. Respondent was represented by Charles Slanina, Esquire.
Sisk was admitted to the Bar of the Supreme Court of Delaware in 1979. (AA¶ 1; Tr. 97). During the period covered by the Petition, Sisk was engaged in the private practice of law, and he was affiliated with two firms, most recently Curran & Sisk in Newark, Delaware. (AA¶ 2).
During part of the relevant period, Respondent suffered some personal problems. In March 2010, he underwent surgery for cancer (Tr. 97), taking several months to recover to the point of being able to handle a full workload (Tr. 98), In August 2010, his law firm broke up due to a dispute between his two partners, causing Sisk added and severe stress (Tr. 98). Lastly, in February 2011, his father collapsed and died the following month, leaving Sisk with the grief of that loss and the responsibility of caring for his mother (Tr. 98).
The Petition alleges “18 violations of ten different rules of professional conduct.” (Tr. 7).2
A. Board Case No.2011–1064–B (Deborah A. Brennan)a. Facts
On August 10, 2010, Deborah A. Brennan retained Sisk to file child custody and child support petitions (Tr. 16, 99). Ms. Brennan paid Sisk a retainer of $1500 at the time of his being hired. (AA¶ 3; Tr. 16, 99; JX Tab 5 3). At that time, Sisk informed Ms. Brennan that it would take six to eight weeks for the Family Court to schedule an initial meeting on the petitions after they were filed. (AA¶ 4; Tr. 18, 99).
About six weeks went by with Ms. Brennan receiving no status report from Respondent. So, on September 21, 2010, she called him, seeking confirmation that the petitions had been filed (Tr. 19, 99). During that phone call, without checking his file, but believing that the filing had occurred, Sisk confirmed that the petitions had indeed been filed (AA¶ 5, Tr. 99). However, despite this unqualified assurance, the truth was that the petitions had not been filed (AA ¶ 6; Tr. 100). When Respondent checked his file in December 2010, he realized the petitions had not been filed (Tr. 123). Nevertheless, he neglected to notify Ms. Brennan that the filing had not been made (AA ¶ 7; Tr. 100).
On or about January 4, 2011, Ms. Brennan called Sisk and faxed him a letter terminating his representation because she had not received any copies of any petitions and because a group legal plan through her employer had become available (Tr. 20, 101; JX Tab 6). Sisk left Ms. Brennan a voicemail message informing her for the first time that he had not filed the petitions, offering his apologies. (AA ¶ 10, Tr. 123). Respondent testified that he gave the retainer check from Brennan to the firm's bookkeeper (Tr. 120). The retainer was deposited in the escrow account of the firm of Conaty Cunran & Sisk, Respondent's firm at that time (“CCSS”) (Tr. 100). One-half of the retainer was later taken erroneously as an earned fee.4 However, when Respondent was terminated, he offered to refund Ms. Brennan's full retainer, paying the $750 taken out of the retainer from his own personal funds so Ms. Brennan would not have to wait for settlement of the receivership that CC & S had been put into. (AA ¶ 8; Tr. 122). Because of that receivership, Sisk still has not been reimbursed (Tr. 122).
Petitions were eventually filed on Ms. Brennan's behalf by new counsel in March 2011 (Tr. 25). Ms. Brennan claims she was damaged because had her petition for child support been filed in September 2010, when she first retained Sisk, she would have been eligible for support from that filing date (Tr. 24–25). Sisk disputes this, arguing that if this was an original petition for child support, she would be entitled to support from the date of separation with her husband (Tr. 144).
At the time she terminated Sisk, Ms. Brennan requested an accounting of any funds from the retainer that he planned to keep (JX Tab 6; Tr. 101). She followed up with an email on February 18, 2011 (JX Tab 7). No such accounting was provided (AA ¶ 9); however, as noted, a full refund of the retainer was eventually tendered back to Ms. Brennan, which Ms. Brennan considered to be an accounting (Tr. 23, 27; JX Tab 9) 5.
Sisk wrote to the ODC on April 6, 2011, in response to its inquiry of March 16, 2011 (JX Tab 8). In his response, Sisk explained that, prior to December 2010, he genuinely believed that he had filed the child support petition. He clarified that the delay in returning her retainer was, at least in part, explained by the fact that his firm was in dissolution and the funds were “in the hands of a third party arbitrator” (Tr. 122). While noting his apology to Ms. Brennan, despite the dissolution of his firm, Sisk took full responsibility for any delay caused Ms. Brennan and his failure to file the petition in Family Court (Tr. 123).
b. Counts of the Petition
The Petition asserts eight counts against Sisk in the Brennan matter. Counts I–IV and VIII relate to Sisk's failure to file the custody and child support petitions and related representations.
Count I asserts that Sisk failed to provide competent representation in violation of Rule 1.1 which states an attorney
Count II alleges violation of Rule 1.2(a) requiring an attorney to abide by decisions of the client by failing to file the custody and support petitions as requested by the client. Count III states that Sisk violated Rule 1.3 by failing to act with reasonable diligence in failing to file the custody and child support petitions. Count IV claims that Respondent violated Rule 1.4(a)(3) by failing to inform the client that he had not filed the custody and child support petitions and by informing her that he had made the requisite filings when he had not done so. Finally, Count VIII accuses Sisk of violating Rule 8.4(c) when he engaged in conduct involving dishonesty, fraud, deceit or misrepresentation when he advised Ms. Brennan that he had filed the custody and child support petitions when he had not.
Counts V–VII relate to the handling of the $1500 retainer. Count V asserts that Sisk violated Rule 1.5(f) by failing to provide Ms. Brennan a written statement of fees earned. Counts VI and VII claim that Sisk violated Rule 1.15(b) and Rule 1.16(d) by failing to deliver a refund of the retainer...
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