In re Tenenbaum

• Citation: 918 A.2d 1109
• Decision Date: 06 February 2007
• Docket Number: No. 565, 2006.,565, 2006.
• Parties: In the Matter of a Member of the Bar of the Supreme Court of Delaware Joel D. TENENBAUM, Respondent.
• Court: United States State Supreme Court of Delaware

918 A.2d 1109

In the Matter of a Member of the Bar of the Supreme Court of Delaware Joel D. TENENBAUM, Respondent.

No. 565, 2006.

Supreme Court of Delaware.

Submitted: December 13, 2006.

Decided: February 6, 2007.

Disciplinary Proceeding Upon Final Report of the Board on Professional Responsibility of the Supreme Court. Disbarment Imposed.

Jeffrey M. Weiner, Esquire, Wilmington, Delaware, for respondent, Joel D. Tenenbaum.

Andrea L. Rocanelli, Esquire, Office of Disciplinary Counsel, Wilmington, Delaware.

Before HOLLAND, BERGER and JACOBS, Justices.

PER CURIAM.

This is an attorney disciplinary matter involving charges of professional misconduct filed against Joel D. Tenenbaum, the Respondent. Tenenbaum is currently suspended from the practice of law for three years following this Court's order of August 5, 2005.¹ The Petition for Discipline at issue in this proceeding was filed by the Office of Disciplinary Counsel (the "ODC"). It alleges the following three counts of illegal conduct involving moral turpitude: (1) Indecent Exposure; (2) Sexual Assault; and (3) Unlawful Imprisonment. In a Report dated May 8, 2006 (the "Violation Report"),² the Board on Professional Responsibility (the "Board) found that the foregoing allegations of illegal conduct involving moral turpitude had been established by clear and convincing evidence. In this opinion, we affirm the findings of facts and conclusions of law in the Board's Violation Report.

In a Report dated October 16, 2006 (the "Discipline Report"),³ the Board recommended that Tenenbaum be disbarred. We have made an independent determination that the sanction recommended in the Board's Discipline Report is appropriate. Accordingly, we have decided that Tenenbaum must be disbarred.

Petition for Discipline

The current Petition for Discipline alleges that, in or about 1983, Tenenbaum engaged in illegal conduct involving moral turpitude. The relevant portion of the then applicable code of professional conduct is DR 1-102(A)(3), which prohibited illegal conduct involving moral turpitude.⁴ The allegations in the Petition are based entirely upon the complaints of Carolyn Catts,⁵ a former client of Tenenbaum. She alleges that Tenenbaum sexually assaulted her during an after-hours meeting at his law office in the Independence Mall. At the time of the alleged assault, Ms. Catts was in her early twenties.

Laches Defenses

Tenenbaum admits "upon information and belief" that he represented Carolyn Catts, as her defense attorney, in connection with a charge of "driving while under the influence" in or about 1983. Otherwise, Tenenbaum states he has no specific recollection of Catts or his representation of her. Tenenbaum denies all of the alleged acts of illegal conduct. Tenenbaum also raises the affirmative defenses of laches and violation of due process, i.e., that the delay in prosecution of the disciplinary charges against him for more than twenty-two years constitutes actual prejudice. In support of his laches defense, Tenenbaum asserts that:

1. His file in connection with any representation of Ms. Catts was destroyed by the firm in due course approximately 7-10 years after the conclusion of the representation;

2. His time records in connection with Ms. Catts were destroyed by the firm in due course approximately seven to ten years after the conclusion of representation;

3. Any alleged furniture referenced by Ms. Catts in her complaint has not been in the possession, custody and/or control of Tenenbaum since Tenenbaum's firm moved from the Independence Mall to 3200 Concord Pike approximately 13 years ago

4. Tenenbaum's secretary died in June, 2002 and thus is unavailable as a witness;

5. Tenenbaum has no recollection of Ms. Catts and/or of his representation of her after the passage of 22 years; and

6. Ms. Catts destroyed documents pertaining to this matter several months prior to lodging her complaint with the ODC.

Board's Violation Report

The Board identified the two issues before it at the violation hearing as follows:

Issue 1. Did the ODC establish by clear and convincing evidence that Respondent engaged in illegal conduct involving moral turpitude, in violation of the then applicable DR 1-102(a)(3) of the Code of Professional Responsibility?

Issue 2. If the ODC established by clear and convincing evidence that Respondent engaged in illegal conduct involving moral turpitude, in violation of the then applicable DR 1-102(a)(3) of the Code of Professional Responsibility, should the Board nonetheless dismiss the case because of the delay of more than 22 years in the prosecution of disciplinary charges against him?

The Board answered those two inquiries, as follows:

Board Findings-Issue 1. The Board finds that the record established at the hearing demonstrates the Respondent engaged in illegal conduct involving moral turpitude, in violation of the then applicable DR 1-102(a)(3) of the Code of Professional Responsibility, and that ODC met its burden of proving the charged misconduct by clear and convincing evidence, as required by the Delaware Lawyers' Rules of Disciplinary Procedure ("Procedural Rules"), Rule 15(c) (standard of proof) and Rule 15(d) (burden of proof).

Board Findings-Issue 2. The Board finds that the public interests at issue and the standards limiting laches defenses set forth in the Kotler and Bash cases are as applicable to lawyer disciplinary proceedings as they are to physician disciplinary proceedings. The Board finds that Respondent did not meet his burden of proving both that the delay in the initiation of disciplinary proceedings was unreasonable, and that prejudice resulted from the delay. The Board finds that Ms. Catts' reporting of the assault nearly 22 years after the fact was not unreasonable under the circumstances, and there was no unreasonable delay in ODC's initiation of disciplinary proceedings thereafter. Because of the nature of the complaint, the Board does not find that the grounds alleged by Respondent constitute prejudice that requires the dismissal of this disciplinary proceeding. The Board's findings under Issue 2 require that the Board's findings under Issue 1 stand as the Board's determination that Respondent has engaged in professional misconduct.

Standard of Review

The standard of proof required for the Board to find a violation of the Rules of Professional Conduct is by clear and convincing evidence.⁶ Our scope of review of the Board's factual findings is limited to a determination of whether the record contains substantial evidence supporting the findings.⁷ Our standard of review of the Board's conclusions of law is de novo.⁸ If substantial evidence supporting the Board's decision exists in the record, and the Board has made no error of law, its decision will be affirmed on appeal.

Violation Report Affirmed

The conduct of a person is always relevant to the question of fitness to practice law. Accordingly, the standards for admission to the Bar of this Court and the provisions for lawyer discipline are equally important to protect both the public and the integrity of the legal profession. Delaware Rule of Disciplinary Procedure 26 provides: "There shall be no statute of limitations with respect to any proceedings under these Rules."⁹ That rule is consistent with this Court's requirement for admission to the practice of law, which mandates the disclosure of all information regarding character and fitness.¹⁰

Although the Delaware Lawyer Rules of Professional Conduct prohibit raising a statute of limitations defense in disciplinary proceedings, they do not preclude all consideration of time lapses, or the applicability of time-bar doctrines independent of the statute of limitations. The commentary on the ABA Model Rule states that the time between the commission of the alleged misconduct and the filing of a complaint predicated thereon may be pertinent to whether and to what extent discipline should be imposed.¹¹ It is well settled in certain civil proceedings that, "[l]aches is an affirmative defense that the plaintiff unreasonably delayed in bringing suit after the plaintiff knew of an infringement of his [or her] rights, thereby resulting in material prejudice to the defendant."¹²

The Board recognized that Tenenbaum's assertion of a laches defense in a Delaware lawyer disciplinary proceeding presents a question of first impression. Although Delaware courts have not decided prior cases involving lawyer discipline that presented a laches defense, that defense has been considered in the context of other professions. In Bash v. Board of Medical Practice,¹³ a matter involving physician discipline, a laches defense was addressed by the Superior Court:

It has been held that there are no statutes of limitation applicable to [professional] disciplinary proceedings and therefore generally no basis for laches. Where [laches] has been successfully asserted as a defense in administrative disciplinary actions involving professional licenses, laches cannot be imputed by the mere passage of time. It must be determined from all of the circumstances of the case, one of which must be the existence of harm occasioned by the delay. The party asserting laches bears the burden of proving both that the delay was unreasonable and that prejudice resulted from the delay.¹⁴

We agree with the ratio decidendi in Bash,¹⁵ and extend it to Delaware lawyer disciplinary proceedings. The Board applied that standard in considering the merits of Tenenbaum's laches defense.

We have carefully and completely reviewed the findings of fact and conclusions of law in the Board's Violation Report. The record reflects clear and convincing evidence to support the Board's findings that Tenenbaum violated his ethical responsibilities. The record also reflects that the Board properly applied the Bash legal standard to the applicable facts in rejecting Tenenbaum's defense of laches and due process. Accordingly, we affirm both the findings of fact and...