In The Matter Of A Member Of The Bar Of The Supreme Court Of Delaware
| Decision Date | 03 August 2010 |
| Docket Number | 2010.,No. 376,376 |
| Citation | 999 A.2d 853 |
| Parties | In the Matter of a Member of the Bar of the Supreme Court of Delaware, Adam R. ELGART, Respondent. |
| Court | Supreme Court of Delaware |
Disciplinary Proceeding Upon Final Report of the Board on Professional Responsibility of the Supreme Court. PUBLIC REPRIMAND and PROBATION WITH CONDITIONS.
Frederick W. Iobst, Esquire, Disciplinary Counsel for the Board on Professional Responsibility, Wilmington, Delaware.
Charles Slanina, Esquire, Finger, Slanina & Liebesman, LLP, Hockessin, Delaware, for Adam R. Elgart.
Before STEELE, Chief Justice, HOLLAND and BERGER, Justices.
This is a Disciplinary Proceeding. A panel of the Board on Professional Responsibility (“Board”) held a hearing involving charges of professional misconduct against the Respondent, Adam R. Elgart (“Elgart”).1 The charges related to Elgart's representation of one client. The Board has issued a final report to this Court (“Report”).
The Board found that Elgart had violated various provisions of the Delaware Lawyers' Rules of Professional Conduct. Elgart has not filed any exceptions to the Board's findings. Therefore, the sole issue to be addressed by this Court is the form of discipline which should be imposed.
This case involves the alleged failures of Elgart to properly represent his client, Lonnie Britford (“Britford”), in connection with a personal injury matter and subsequent failures to make disclosures to the Office of Disciplinary Counsel (“ODC”) in connection with the disciplinary matter. The Board found that Elgart has violated the following Delaware Lawyers Rules of Professional Conduct (the “Rules”):
Rule 1.1 requires that “a lawyer shall provide competent representation to a client.” The Board found that the Respondent violated Rule 1.1 by failing to represent Britford's interest with the legal knowledge, skill, thoroughness, and/or preparation necessary for the representation.
Rule 1.3 requires that a “lawyer shall act with reasonable diligence and promptness in representing a client.” The Board found that the Respondent violated Rule 1.3 by failing to distribute settlement funds, meet with Britford, contact the insurance companies and prosecute Britford's claim or return Britford's calls in a timely manner.
Rule 1.4(a)(3) requires that “a lawyer keep the client reasonably informed about the status of the matter.” The Board found that the Respondent violated Rule 1.4(a)(3) by failing to keep Britford informed with respect to the details of his matter with Progressive Northern Insurance Company (“Progressive”).
Rule 1.4(a)(4) requires that “a lawyer promptly comply with reasonable requests for information.” The Board found that the Respondent violated Rule 1.4(a)(4) by failing to comply with Britford's reasonable requests for information regarding his matter.
Rule 1.15(d) requires that “a lawyer shall promptly deliver to a client or third person any funds or other property that the client or third person is entitled to receive, and upon request by the client or third person, shall promptly render a full accounting regarding such property.” The Board found that the Respondent violated Rule 1.15(d) by failing to distribute the funds due to Britford in a timely manner.
Rule 8.1(b) requires that “a lawyer in connection with ... a disciplinary matter, shall not: ... (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information” from a disciplinary authority. The Board found that the Respondent violated Rule 8.1(b) by failing to disclose (a) information available to him in his office; or (b) information provided to him by Britford; and (c) information in response to ODC's subpoena duces tecum.
The Board's findings of fact with respect to the underlying charges of professional misconduct as set forth in its Report, are in pertinent part, as follows:
The Respondent is a member of the bar of the Supreme Court of Delaware having been admitted in 1995. The Respondent was engaged in the private practice of law at Mattleman, Weinroth & Miller, P.C. (“Mattleman, Weinroth” and/or the “firm”), whose main office is located in Newark, Delaware at all times relevant to the Petition for Discipline. Although, the Respondent admitted that he was the managing partner of Mattleman, Weinroth in one paragraph of his Answer, in another paragraph he indicates that he was managing attorney, and not managing partner, which is consistent with his testimony.
Prior to his employment with Mattleman, Weinroth, the Respondent was employed in private practice with Marks, Feiner & Fridkin from 1995 through 1997 doing personal injury litigation.
On or about May 24, 2002, Britford retained Stephen Nowak, Esquire (“Nowak”) of Mattleman, Weinroth to represent him in a personal injury matter arising out of a motor vehicle accident which occurred on May 11, 2002.
No personal injury lawsuit was filed on Britford's behalf arising from the May 11, 2002 motor vehicle accident, but there were settlement negotiations between Nowak and the insurance company, Progressive. A check in the amount of $15,000, the amount of Progressive's policy limits, and releases were sent to the firm on September 19, 2002. Britford was copied on the letter from Progressive transmitting the check to Mattleman, Weinroth.
Whether Britford received notice from Nowak that the Progressive check was received by the firm is unclear. The Respondent admitted that Britford did not receive notice from Nowak, but the joint exhibits contain a September 25, 2002 letter from Nowak to Britford advising him of the receipt of the check. Britford testified on direct examination that he recalled receiving the September 25, 2002 letter, but on re-direct, Britford indicated that he could not remember receiving the letter.
Nowak left Mattleman, Weinroth on or about December 14, 2002. The Respondent was a managing attorney of the firm at that time. The Respondent reviewed Britford's file following Nowak's departure.
Britford received a telephone call from the Respondent in early 2003 advising him that the Respondent had taken over the case from Nowak, a check for $15,000 had arrived, and a meeting with the Respondent to discuss the status of his case should be scheduled.
During a meeting between Respondent and Britford in 2003, the Respondent told Britford (a) $15,000 was inadequate compensation given Britford's surgery and medical bills; (b) after legal fees and expenses Britford would net about $9,000; (c) the Respondent would bring a claim against State Farm Insurance Company on his behalf for underinsurance coverage; and (d) the Respondent would also work on the worker's compensation case. Britford's portion of the settlement funds was not distributed to him before the check became void six months after the date of issue.
Having not heard from the Respondent for seven to eight months following the 2003 meeting, Britford called the Respondent in late 2003 to obtain information about his case. When he did not reach the Respondent, he left a message requesting a return call. Britford did not receive a return call from the Respondent.
Between late 2003 and 2007, Britford repeatedly and unsuccessfully attempted to reach the Respondent by telephone and drove to Mattleman, Weinroth on a number of occasions to see the Respondent in person. During each telephone call to the Respondent and in person visit to Mattleman, Weinroth, Britford requested a return telephone call and communication from the Respondent regarding his matter. Britford received no communication from the Respondent as a result of these calls and visits to the firm.
Sometime in 2007 or 2008, Britford heard from the Respondent for the first time since their 2003 meeting. Throughout 2008, the Respondent spoke to Britford a “couple of times” indicating he “was trying to work something out with an adjuster”.
In the Spring of 2009, Britford called the Respondent again regarding the status of his matter, but the Respondent failed to return his call.
On April 27, 2009, Britford's counsel in a different matter sent a letter to the Respondent on Britford's behalf requesting information about the status of his matter. The Respondent did not respond to the letter.
Britford filed a complaint with the ODC on or about June 10, 2009 alleging he had been unable to contact the Respondent for six months.
Thereafter, payment in the amount of $15,000 was made to Britford in September, 2009 by Mattleman, Weinroth & Miller, P.C.
The Respondent sent a letter to the ODC on July 3, 2009 with what he characterized as “a preliminary response” to the complaint by Britford. The Respondent indicated that Britford contacted him in January 2008, and they had spoken periodically since then. The Respondent did not disclose his telephone call and meeting with Britford in 2003. In a subsequent letter on July 27, 2009, the Respondent did not reference the 2003 telephone call and meeting stating,
The ODC issued a subpoena duces tecum to the Respondent on July 28, 2009, and the Respondent produced documents by letter dated August 11, 2009. The Respondent failed to include in his response any “telephone logs or notes, meeting notes, calendar records” related to the matter handled by the firm or the Respondent on Britford's behalf. Additional discovery responses, including telephone notes and calendar logs were provided to ODC on January 29, 2010, February 3, 2010, and March 1, 2010.
The Board's conclusions of law with respect to...
To continue reading
Request your trial
-
In re Sisk
...disposition). 43. 998 A.2d 860 (Del.2010) (unpublished disposition). 44.767 A.2d 197 (Del.2001). 45.565 A.2d 901 (Del.1989). 46.999 A.2d 853 (Del.2010). 47.In re Katz, 981 A.2d at 1149;In re Garrett, 835 A.2d at 515. 48.Compare ABA Standard 4.62, which provides, “Suspension is generally app......
-
In re Sisk, 346, 2012
...43. 998 A 2d 860 (Del. 2010) (unpublished disposition). 44. 767 A. 2d 197 (Del. 2001). 45. 565 A. 2d 901 (Del. 1989). 46. 999 A. 2d 853 (Del 2010). 47. In re Kate. 981 A 2d at 1149; In re Garrett, 835 A. 2d at 515. 48. Compare ABA Standard 4.62 , which provides, "Suspension is generally app......