Lassen, Matter of

• Decision Date: 21 November 1995
• Docket Number: 1994,No. 72,72
• Parties: : J. Kai LASSEN, Respondent. Supreme Court of Delaware. Submitted:
• Court: United States State Supreme Court of Delaware

Page 988

672 A.2d 988

In the Matter of A Member of the Bar of the Supreme Court of

the State of Delaware: J. Kai LASSEN, Respondent.

No. 72, 1994.

Supreme Court of Delaware.

Submitted: Nov. 21, 1995.

Decided: Feb. 22, 1996.

Upon review of the report of the Board on Professional Responsibility. Finding of Violations Affirmed. Judgment Entered: Three-Year Suspension with Conditions for Reinstatement.

Board on Professional Responsibility; Case No. 8, 1992.

Charles S. Crompton, Jr. (argued), and Joanne Ceballos, Potter, Anderson & Corroon, Wilmington, for Respondent.

David Curtis Glebe, Chief Disciplinary Counsel, Wilmington, for Office of Disciplinary Counsel.

Before VEASEY, C.J., WALSH, HARTNETT and BERGER, JJ., and RIDGELY, President Judge, ¹ constituting the Court en Banc.

PER CURIAM:

This matter is before the Court pursuant to Rule 9(e) of the Rules of the Board on Professional Responsibility. Respondent, J. Kai Lassen ("Lassen" or "Respondent"), is a member of the Bar of this Court who was admitted to practice in 1971 and is now 53 years of age. Respondent seeks review of the Final Report (the "Final Report") of the Board on Professional Responsibility (the "Board") ² dated August 11, 1995. ³ In the Final Report, the Board unanimously found Respondent to have violated eight rules of the Delaware Lawyers' Rules of Professional Conduct (the "DLRPC"). A majority of the Board rejected a proposed sanction consisting of a private admonition conditioned on voluntary, permanent retirement from the practice of law in Delaware and elsewhere (the "Permanent Retirement Sanction"), and recommended a three-year public suspension. The dissenting Board member, however, recommended that the Court adopt the proposed Permanent Retirement Sanction. A review of the Board's findings and the determination of the appropriate sanction is now before this Court.

Respondent challenges the Board's findings concerning the violations and the Board's conclusion that a private admonition would be inappropriate in view of the Permanent Retirement Sanction. For the reasons set forth below, we sustain the Board's finding that Respondent violated eight rules of the DLRPC. We determine that a public reprimand and suspension from the practice of law for a period of three years is the appropriate sanction in this case. In light of this, we have determined that: (a) under the circumstances, the sanction imposed in this case must be of a public nature; (b) Respondent's voluntary proffer of the Permanent Retirement Sanction conditioned on anonymity must, therefore, be rejected; and (c) only this resolution appropriately advances the policies of effective regulation of the Bar. In consideration of Respondent's voluntary withdrawal from the practice of law commencing on December 31, 1991, however, the Respondent will be credited as having served the durational requirement of this suspension and will be eligible for reinstatement upon his compliance with the conditions enumerated at the end of this Opinion.

I. FACTS

On January 21, 1992, partners of a Delaware law firm (the "Firm"), pursuant to their duty under DLRPC 8.3(a), reported several ethical violations by Respondent, a Firm partner, to the Office of Disciplinary Counsel ("ODC"). The circumstances surrounding these violations resulted in Respondent's voluntary resignation from the Firm. ⁴

On December 30, 1992, the ODC filed with the Board a petition for discipline (the "petition"), which included allegations that Respondent violated the following rules of the DLRPC: 1.5(a), 3.3(a)(1), 3.3(a)(4), 3.4(b), 4.1(a), 5.3(c)(1), 8.4(b), 8.4(c), and 8.4(d). The Board held a hearing on May 25, 1995. ⁵ At the hearing, the ODC relied exclusively on certain stipulated facts (the "stipulated facts") to form its case. ⁶ In addition to Respondent, three witnesses--a Firm partner, a partner from another firm (the "Prior Firm") of which Respondent had previously been a member, and Respondent's treating psychologist--testified on Respondent's behalf. The relevant stipulated facts before the Board and this Court are as follows:

1. The Respondent is a member of the Bar of the Supreme Court of the State of Delaware, having been admitted to practice in 1971.

2. At all times relevant to the Petition, Respondent was engaged in the private practice of law in the State of Delaware as one of the partners of a law firm (the "Firm").

3. Respondent withdrew as a member of the Firm effective December 31, 1991.

4. On several occasions between October 13, 1990 and February 14, 1991, Respondent used the Firm's credit card at various restaurants to charge meals totaling $262.18 that were not related to the business of the Firm nor properly chargeable to any of the Firm's clients (the "Personal Restaurant Charges").

5. On several occasions between October 13, 1990, and February 14, 1991, Respondent directed the Firm's accounting and bookkeeping personnel to designate the Personal Restaurant Charges as billable to certain of the Firm's clients.

6. On some occasions between October 13, 1990, and February 14, 1991, Respondent directed the Firm's accounting and bookkeeping personnel to combine the Personal Restaurant Charges with various other legitimate costs typically billed to the firm's clients (e.g. "photocopies"), such that the Personal Restaurant Charges would then be re-designated on the clients' bills as "delivery charges", "photocopies", "telephone charges", or "travel expenses".

7. In December 1990, Respondent approved $1,354.93 of false charges (which includes the $262.18 of Personal Restaurant Charges) to be billed to at least three of the Firm's clients.

8. In April of 1991, Respondent sent bills for a portion of the $1,354.93 of false charges (i.e., the $262.18 of Personal Restaurant Charges) to at least one of the Firm's clients.

9. In April of 1991, after the Firm's partners had discussed with Respondent the impropriety of some of the false charges in three client matters in which the client had not yet been sent a bill, Respondent agreed not to send a bill to those clients for such amounts, but to have the amounts charged instead against his capital account at the firm.

10. In October of 1991, Respondent signed, under oath, a pleading entitled "Joint Application by Attorneys for Equity Security Holders Committee for Interim Compensation and Reimbursement of Expenses" (the "Fee Application"), attached to which was an itemization of the Firm's fee and expense charges containing a false charge of $131.75 for personal restaurant meals.

11. The Fee Application was filed with the United States Bankruptcy Court for the District of Arizona in November of 1991 in the case of In re: Reddington/El Conquistador Limited Partnership, Case No. 87-0917-TUC-RTB, and was approved by the order of the Court on December 23, 1991.

12. In at least four client matters (the "Four Client Matters") in which Respondent was the "billing attorney" at the firm, and which were being billed on an hourly-rate basis, Respondent reported in his time records for the Firm that he had spent substantial amounts of his professional time working on such matters when in fact the Respondent had not performed the work so recorded.

13. With respect to the Four Client Matters, Respondent billed clients in those matters for the following amounts of his professional time purportedly worked on such matters when in fact the Respondent had not performed such work.

A. Case 86330--From December, 1986 to March, 1991, the total amount of allegedly improper time charges was approximately 150 hours billed in the amount of $18,125.

B. Case 90208--From July, 1990 to March, 1991, the total amount of allegedly improper time charges was approximately 60 hours billed in the amount of $9,469.

C. Case 90134--From April, 1990 to February, 1991, the total amount of allegedly improper time charges was approximately 40.6 hours billed in the amount of $6,090.

D. Case 89119--From June, 1989 to November, 1990, the total amount of allegedly improper time charges billed was in the amount of $4,500.

14. The voluminous records of the Firm reflecting the time charges in paragraphs 12 and 13 also contain at least 90 instances where other members of the Firm show conferences with Respondent, while his records show no corresponding time entry. In addition, there are at least 65 instances in those time records where one lawyer or paralegal other than Respondent reported a conference with another Firm employee whose time record does not show a corresponding entry to corroborate these conferences.

15. Except for Respondent, none of the Firm's partners has ever been asked to resign from the Firm because of matters pertaining to the billing of clients or the keeping of time records.

In summary, the facts before this Court show that Respondent: (a) submitted to clients and to the bankruptcy court as disbursements personal charges totaling $1,486.68; (b) attempted to disguise those charges; (c) improperly attempted to charge to clients in "at least" four matters fictitious hourly billings totaling $38,184; and (d) entered other questionable billable hours on firm records. The facts also show that neither the Firm nor any client suffered any financial loss as a result of Respondent's misconduct.

In addition, Respondent resigned in 1982 from the Prior Firm and received a private censure from the Board, due to unethical billing practices. According to the previously confidential record on file in this Court in connection with the 1982 matter, Respondent, while at the Prior Firm, overbilled several clients, and charged other clients with certain expense account items unrelated to their interests. Respondent, however, made full reimbursement to all involved parties. Specifically, the record of the 1982 matter shows that on August 4, 1982, the Board sent Lassen a private censure for violations of certain ethical rules then in effect: DR 1-102(A)(4), DR 1-102(A)(6) and DR 2-1...