In re a Member of the Bar of the State Shearin

811 A.2d 784, 2001 Del. LEXIS 209
CourtSupreme Court of Pennsylvania
DecidedMay 9, 2001
DocketNo. 178, 2000
StatusPublished

This text of 811 A.2d 784 (In re a Member of the Bar of the State Shearin) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re a Member of the Bar of the State Shearin, 811 A.2d 784, 2001 Del. LEXIS 209 (Pa. 2001).

Opinion

PER CURIAM.

This opinion involves the sanction phase of our appellate review in a disciplinary proceeding regarding the Respondent, K. Kay Shearin. In our initial disposition, we affirmed the Board on Professional Responsibility’s judgment that the alleged ethical violations had been established by clear and convincing [785]*785evidence.1 Before determining the appropriate sanction, however, this Court “concluded that it would be helpful, in deciding upon an appropriate sanction, to have a professional assessment of Shea-rin’s mental state.”2 That offer was respectfully declined by the Respondent.

APPROPRIATE SANCTION

In this opinion, we will begin our analysis by recounting the standards and contentions that are already extant in this proceeding.3 The exclusive authority to impose sanctions for attorney misconduct is vested in this Court.4 The guidelines for the imposition of sanctions are well-established. They are not designed to be either punitive or penal.5 The relevant factors to consider in determining an appropriate sanction are: (1) the nature of the duty violated; (2) the lawyer’s mental state; (3) the actual/potential injury caused by the misconduct; and (4) the existence of aggravating and mitigating circumstances.6

Shearin’s attorney points out that “although the Petition alleged violations of separate provisions of the DLRPC, all of the allegations which the Board found to have established arose from a common nucleus of facts — the substantive content of the Shearin Lawsuit that was filed in U.S. District Court for the District of Columbia, which was ultimately dismissed.” He argues that a public reprimand is the most appropriate sanction because Shearin did not knowingly violate the Delaware Lawyers Rules of Professional Responsibility. The Office of Disciplinary Counsel argues that a three-year suspension is the appropriate sanction because Shearin’s “statements to the Board clearly reflect that she does not recognize the wrongfulness of her conduct.”

The Board on Professional Responsibility recommends that the Respondent be suspended for three years from the date of its report, April 19, 2000.7 The Respondent was previously suspended for one year beginning on January 1,1999.8 Since the Respondent has not petitioned for reinstatement, she remains suspended from the practice of law. Consequently, the Respondent has been suspended for almost two and one-half years.

SUSPENSION IMPOSED

We have concluded that a period of suspension for three years is appropriate. As in Shearin I, the record in Shearin II reflects a pattern of unethical conduct, and demonstrates a complete disregard for her responsibilities as an officer of this Court.9 In our view, however, given the interrelationship between the present and the prior ethical violations, the periods of Shearin’s present and prior suspensions should run concurrently.

Therefore, we hold that for the ethical violations set forth in Shearin II, K. Kay [786]*786Shearin shall be prohibited and suspended from engaging in the practice of law for a period of three years. That period of suspension will commence on January 1, 1999 and end upon her reinstatement, for which application may be made after January 1, 2002. This period of suspension shall be subject to the same terms and conditions originally set forth in Shearin I. This opinion shall be disseminated by the Office of Disciplinary Counsel in accordance with the Rules of the Board on Professional Responsibility.

APPENDIX

BOARD ON PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF DELAWARE

In the Matter of

a Member of the Bar CONFIDENTIAL

of the Supreme Court Board Case No. 1998

of the State of Delaware

K. KAY SHEARING,

Respondent.

BOARD RECOMMENDATION REGARDING SANCTION

Pursuant to the findings and conclusions of the Board in the above referenced matter as set forth in the report of the Board under Rule 9(d), the Board recommends imposition of a suspension by the Supreme Court for three years to commence from the date of this recommendation. The Petition, Exhibits, Report of Board and this Board Recommendation will be delivered to The Delaware Supreme Court as joint Exhibits of the parties. This sanction is based on the following:

RESPONDENT’S PRIOR DISCIPLINARY RECORD

Respondent was suspended on December 10, 1998 from the practice of law for a period of one year for misconduct stemming from violation of Rules the same in nature to the present proceedings: Rule 3.1 (engaging in frivolous litigation). Also, in Respondent’s previous disciplinary matter, her conduct was found to have “placed an undue burden on the court system and opposing litigants,” In the Matter of Shearin, Del.Supr., 721 A.2d at 163 (1998). This Board found her guilty of a substantially similar violation by violating Rule 8.4(d) (professional misconduct for a lawyer to engage in- conduct that is prejudicial to the administration of justice.) Respondent had a long history of actions filed by the ODC resulting in the previous suspension: Board Case No. 39, 1992 contained 5 separate counts; Board Case No. 53, 1994 contained 14 separate counts, and Board Case No. 35', 1995 contained 15 separate counts. All had many of the same parties, the same judges and the same facts as presented to this Board. All involved the conduct of the Respondent in her litigation zeal to vindicate her rights and her clients rights.

AGGRAVATING AND MITIGATING FACTORS

Respondent presented to the Board an excellent oral argument answering all questions from the Board and participated in the hearing, cooperating fully and sincerely. It was clear that there was an absence of a dishonest or selfish motive to her actions.

However, in reaching the foregoing conclusion as to the disciplinary sanction described herein, the Board considered the following as aggravation factors:

(1) The Respondent has substantial experience in the practice of law having been a member of the Bar since 1986.

(2) The Respondent has a pattern of the same or similar misconduct.

[787]*787(3) The Respondent’s continued refusal to acknowledge the wrongful nature of her conduct and has no remorse for her behavior.

(4) The Respondent’s bad faith obstruction of the disciplinary system by intentionally failing to comply with the Board’s procedural rules.

(5) Respondent’s prior disciplinary record consisting of a suspension on December 10,1998 from the practice of law for a period of one year stemming from similar charges.

(6) Respondent’s continuous degrading of judicial officers in personal terms questioning their mental capacity and allegations of conspiracy.

Keeping in mind that the Board’s purpose is to protect the public, to that end the purpose of any sanctions are to foster public confidence in the Bar and the judiciary system, preserve the integrity of the profession, and to deter other lawyers from similar conduct.

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Related

In Re a Member of the Bar of the State Mekler
669 A.2d 655 (Supreme Court of Delaware, 1995)
In Re a Member of the Bar of the Supreme Court of the State Lassen
672 A.2d 988 (Supreme Court of Delaware, 1996)
Vasquez v. Johnson
532 U.S. 997 (Supreme Court, 2001)

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811 A.2d 784, 2001 Del. LEXIS 209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-a-member-of-the-bar-of-the-state-shearin-pa-2001.