In re a Member of the Bar of the Supreme Court of Delaware: Vanderslice
In re a Member of the Bar of the Supreme Court of Delaware: Vanderslice
Opinion of the Court
This attorney disciplinary matter involves charges of professional misconduct against Patrick E. Vanderslice, Esquire (“Vanderslice”). The Board of Professional Responsibility (“the Board”) found that Vanderslice had violated the Delaware Lawyers’ Rules of Professional Conduct (“Rules”) 1.5(f), 1.15(a) and (b), and 8.4(b) and (c), but not Rule 8.4(d). The Office of Disciplinary Counsel (“ODC”) contended that Vanderslice had violated Rule 8.4(d) as well as the other above-cited Rules, and that the Board should have so found. Vanderslice disputes that he violated Rule 8.4(b) (as the Board found) and Rule 8.4(d) (as the ODC contends).
Although the Board and the ODC agree that the presumptive sanction is suspension, the Board now joins Vanderslice in advocating a public reprimand with probation, because of mitigating factors. The ODC takes the position that this Court should suspend Vanderslice for at least one year. We independently determine that Vanderslice should be suspended from the practice of law for one year.
Facts
Vanderslice, a member of the Delaware Bar since 1999, was an associate at a Delaware law firm from 2000 to 2005, after which he became a partner until he was dismissed from that firm in October 2011. Vanderslice continues to practice law in Delaware.
In 2008 and 2009, Vanderslice began experiencing personal and emotional problems because of deaths in his family. In December 2009, he began seeking treatment for his ongoing depression. In September 2010, his firm instituted a twenty-five percent pay cut for its partners, to ensure the firm’s survival during the economic recession. To mitigate his financial difficulties resulting from the pay cut, Vanderslice misappropriated clients’ “consultation fees” and “flat fees” from the firm on eight occasions between December 2010 and September 2011. He also caused clients to enter into retainer agreements that failed to provide that any retainer was refundable if unearned, even though in practice his firm refunded any unearned retainers to its clients. There is no evidence that Vanderslice ever diverted any unearned retainers from the firm or its clients.
In September 2011, while Vanderslice was still misappropriating funds, the firm discovered his thefts. In early October 2011, the firm confronted Vanderslice, who confessed and was immediately dismissed. The firm told Vanderslice that he had two weeks to report his misconduct to the ODC, which he did. Altogether, Vander-slice stole $1780 from his firm, for which the firm was later fully reimbursed.
In the ODC’s Petition for Discipline against Yanderslice, it alleged that he violated Rules 1.5(f),
Yanderslice denied, however, that he violated Rule 8.4(b) by committing a “criminal act that reflected] adversely on [his] honesty, trustworthiness or fitness as a lawyer.” The Board noted that Vander-slice had committed theft under 11 Del. C. § 841(a)
The Board found that Vanderslice had not engaged in conduct that was “prejudicial to the administration of justice” under Rule 8.4(d). Specifically, Vanderslice did not violate Rule 8.4(d), because he did not “breachf ] • ■ • any duties owed to the legal system, such as being truthful to the court, expediting litigation, avoiding unmeritorious claims, avoiding injury to a client or party, obeying court rules and orders, or avoiding improper communications with those involved in the judicial process.”
The Board found that three factors aggravated the severity of Vanderslice’s misconduct: (1) a dishonest or selfish motive, (2) a pattern of misconduct, and (3) multiple offenses.
Based on its analysis of these factors, the Board acknowledged that the presumptive sanction is suspension, but concluded that a public reprimand with two years of probation would be more appropriate.
The ODC responded that Vanderslice violated Rule 8.4(d), and also that this Court should impose a suspension of at least one year for his violation of all six Rules. In his Response, Vanderslice contests the Board’s conclusion that he violated Rule 8.4(b),
Discussion
This Court has “the exclusive authority for disciplining members of the Delaware Bar.”
Here, the Board and Vanderslice agree that he violated Rule 1.5(f) with regards to his three deficiently drafted retainer agreements, as well as Rules 1.15(a) and (b), and 8.4(c). The ODC agrees with the Board’s conclusions, and no longer asserts that two other cases (involving clients’ “consultation fees” and “flat fees”) constitute additional violations of Rule 1.5(f). We have carefully reviewed the Board’s Report, and conclude that the record contains substantial evidence to support the Board’s factual findings and conclusions of law regarding Vanderslice’s violations of Rules 1.5(f), 1.15(a) and (b), and 8.4(c). We therefore address only three substantive issues: (1) whether Vanderslice violated Rule 8.4(b), (2) whether he violated Rule 8.4(d), and (3) what the appropriate sanction should be.
I. Whether Vanderslice Violated Rule 8.4(b)
Rule 8.4(b) states that it is professional misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer.” The Board found that Vanderslice violated Rule 8.4(b) by committing theft. Vanderslice argues that he did not violate Rule 8.4(b), because the ODC failed to allege in its Petition that his conduct constituted a specific crime.
Although the ODC’s Petition did not identify any specific criminal provision, we adopt the Board’s conclusions that Vander-slice was not unfairly prejudiced by the omission.
II. Whether Vanderslice Violated Rule 8.4(d)
Rule 8.4(d) mandates that professional misconduct occurs when a lawyer engages in conduct that is “prejudicial to the administration of justice.” The Board argues that Rule 8.4(d) requires a violation of a legal duty under ABA Standard 6.0.
Comment 2 to Rule 8.4 offers guidance on the proper interpretation of Rule 8.4(d): “Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in
We interpret Rule 8.4(d) to mean that although not all crimes are “prejudicial to the administration of justice,” crimes involving “violence, dishonesty, breach of trust, or serious interference with the administration of justice” are categorically Rule 8.4(d) violations. Given our interpretation of Rule 8.4(d), and because Vanderslice committed theft (an offense involving dishonesty and a breach of trust), we conclude that he should be “professionally answerable” for his conduct under Rule 8.4(d).
III. Sanctions
We hereby impose a one-year suspension on Vanderslice. Attorney disciplinary sanctions “are not designed to be either punitive or penal.”
Vanderslice and the Board urge that a public reprimand with probation be an appropriate sanction, for three reasons. First, there was no harm to Vanderslice’s firm because the firm was fully .reimbursed for the small amount of money taken, and there was no evidence that the missing funds adversely affected the firm’s finances. Second, there was no actual or potential injury to any clients, and third, Vanderslice’s mitigating factors outweigh his aggravating factors.
In response, the ODC argués that Vanderslice harmed the firm by misappro
Vanderslice replies that any potential for his misconduct to cause harm (as the ODC claims) is speculative and rhetorical. Moreover, it is not necessary that his depression was an actual cause of his misconduct, because he does not claim that his ongoing treatment for depression is a defense — only a mitigating factor.
Under ABA Standard 5.12, a suspension is “generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.” A public reprimand, under ABA Standard 5.13, is “generally appropriate when a lawyer knowingly engages in any other [presumably non-criminal] conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer’s fitness to practice law.”
We order a one-year suspension, because Vanderslice intentionally committed a criminal act (theft) eight times over a period of ten months, despite possessing a commendable pro bono record and despite other mitigating factors. A public reprimand, usually reserved for inexperienced lawyers (as the cases discussed below indicate), would be unduly lenient.
Our precedent generally supports the imposition of a one-year suspension. In In re Staropoli,
In In re Figliola,
In In re Campbell,
Two cases cited by the Board, In re Gielata
Conclusion
We conclude that by misappropriating firm funds and generating deficiently drafted retainer agreements, Vanderslice violated Rules 1.5(f), 1.15(a) and (b), and 8.4(b), (c), and (d). His five aggravating factors also persuade us that the Board’s recommendation of a public reprimand with probation would be too lenient here.
Accordingly, we order that Patrick E. Vanderslice be prohibited and suspended from engaging in the practice of law for one year. During the suspension, Vander-slice shall not conduct any act directly or indirectly constituting the practice of law,
The ODC shall file a petition in the Court of Chancery for the appointment of a Receiver of Vanderslice’s law practice pursuant to Procedural Rule 24; the Receiver shall provide notice to clients, adverse parties, and others as required by Procedural Rule 28; and the Receiver shall make such arrangements as may be necessary to protect the interests of any of Vanderslice’s clients and the public. Vanderslice shall cooperate in all respects with the Receiver, including providing him/ her with all law office books and records.
In addition, we order that the Board’s Report be made public, that Vanderslice fully cooperate with the ODC in any of its other efforts to monitor his compliance with this Opinion, and that the ODC disseminate this Opinion in accordance with Rule 14 of the Delaware Lawyers’ Rules of Disciplinary Procedure. The ODC is directed to submit within ten days of the date of this Opinion the costs of the disciplinary proceedings. Thereafter, Vander-slice is directed to have all costs paid within thirty days.
. The Board and the ODC disagree on whether Vanderslice voluntarily reimbursed his firm. The Board found that the reimbursement was voluntary, because Vanderslice re
. Rule 1.5(f) provides that "[a] lawyer may require the client to pay some or all of the fee in advance of the ... representation, provided that: (1) The lawyer shall provide the client with a written statement that the fee is refundable if it is not earned, [and] (2) The written statement shall state the basis under which the fees shall be considered to have been earned....”
. Rule 1.15(a) provides that "[a] lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer’s own property.”
. Rule 1.15(b) provides that ”[u]pon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person ... [and] shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive. ...”
. Rule 8.4(b) provides that it is professional misconduct for a lawyer to "commit a criminal act that reflects adversely on the lawyer's ¡honesty, trustworthiness or fitness as a lawyer in other respects.”
. Rule 8.4(c) provides that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation. ’ ’
. Rule 8.4(d) provides that it is professional misconduct for a lawyer to "engage in conduct that is prejudicial to the administration of justice.”
. Vanderslice admitted that three cases of de-ficiently drafted retainer agreements constituted three violations of Rule 1.5(f). He claimed, however, that two other cases— where he did not provide retainer agreements to clients who paid consultation fees and flat fees to the firm — did not constitute Rule 1.5(f) violations, because the fees were earned when paid and not retainers subject to Rule 1.5(f). The Board agreed with Vanderslice, and the ODC has not objected to that part of the Board's findings.
. 11 Del. C. § 841(a) provides that "[a] person is guilty of theft when the person takes, exercises control over or obtains property of another person intending to deprive that person of it or appropriate it.”
. In generating that list of legal duties, the Board cited Standard 6.0 of the ABA Standards for Imposing Lawyer Sanctions ("ABA Standards”). See ABA Standards (1992), available at http://www.americanbar.org/ content/dam/aba/migrated/cpr/regulation/ standards_sanctions.authcheckdam.pdf.
. See ABA Standard 9.22.
. See id. at 9.32.
. The Board also recommended that as a condition of his probation, Vanderslice must continue treatment with his therapist, have regular meetings with a practice monitor, and reimburse the ODC for its costs.
. Vanderslice's objection to the Board's conclusion that he violated Rule 8.4(b) was contained in his September 12, 2012 Response to the ODC’s Objections. Any objections to the Board's Report, however, had to be filed by August 23, 2012. The ODC has therefore moved to strike that portion of Vanderslice's Response that objected to the Board's Rule 8.4(b) finding, arguing that Vanderslice waived his objection by failing to file by August 23, 2012. We need not rule on the ODC's Motion to Strike. As we hold today, Vanderslice violated Rule 8.4(b), even if we consider his Rule 8.4(b) objections, which we do not find compelling.
. In re Katz, 981 A.2d 1133, 1149 (Del. 2009).
. Id. (quoting In re Bailey, 821 A.2d 851, 866 (Del. 2003)).
. In re Bailey, 821 A.2d at 862.
. In re Abbott, 925 A.2d 482, 484 (Del. 2007).
. Bd.'s Rep. at 9.
. See id.
. See ABA Standard 6.0.
. See id. at 6.0-6.3.
. Rule 8.4 cmt. 2 (emphasis added).
. Although a majority of our cases involving Rule 8.4(d) violations have revolved around violations of a legal duty (such as a failure to pay taxes), we have also found Rule 8.4(d) violations for attorneys who have committed crimes involving violence, dishonesty, or a breach of trust. See, e.g., In re Mixon, 2012 WL 3030517 (Del. July 25, 2012) (holding attorney who had been convicted of possessing drugs violated Rule 8.4(d)); In re Melvin, 807 A.2d 550, 554 (Del. 2002) (noting that "even if a lawyer’s criminal conduct does not result in an articulable injury to another person, public confidence in the integrity of the legal profession is undermined when any lawyer engages in criminal conduct”).
. See Rule 8.4 cmt. 2.
. In re Fountain, 878 A.2d 1167, 1173 (Del. 2005) (quoting In re Garrett, 835 A.2d 514, 515 (Del. 2003)).
. Id. (quoting In re Bailey, 821 A.2d 851, 866 (Del. 2003)).
. Id.; see ABA Standard 3.0.
. See ABA Standard 9.22; In re Lassen, 672 A.2d 988, 999 (Del. 1996); In re Figliola, 652 A.2d 1071, 1077-78 (Del. 1995).
. 865 A.2d 522 (Del. 2005); In re Staropoli, No. 316, 2004 (Del. Aug. 4, 2004) (interim order).
. In re Staropoli, No. 316, 2004 (Del. Aug. 4, 2004) (interim order).
. 652 A.2d 1071 (Del. 1995).
. Id. at 1077.
. 760 A.2d 162 (Del. 2000).
. Id.; In re Campbell, No. 247, 2000 (Del. May 25, 2000) (Bd. order and op.).
. In re Campbell, 760 A.2d at 162.
. See In re Lassen, 672 A.2d 988, 999 (Del. 1996); In re Figliola, 652 A.2d at 1077-78.
. 933 A.2d 1249 (Del. 2007).
. 45 A.3d 149 (Del. 2012).
. 933 A.2d at 1249.
. Id.
. 45 A.3d at 149.
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