In re a Member of the Bar of the Supreme Court of Delaware Feuerhake

89 A.3d 1058, 2014 WL 1347099, 2014 Del. LEXIS 159
CourtSupreme Court of Delaware
DecidedApril 4, 2014
DocketNo. 41, 2014
StatusPublished
Cited by3 cases

This text of 89 A.3d 1058 (In re a Member of the Bar of the Supreme Court of Delaware Feuerhake) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware 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 Supreme Court of Delaware Feuerhake, 89 A.3d 1058, 2014 WL 1347099, 2014 Del. LEXIS 159 (Del. 2014).

Opinion

PER CURIAM:

This is an attorney disciplinary matter involving Herbert G. Feuerhake’s practice of law during a disciplinary suspension imposed by this Court. In a report dated January 30, 2014 (the “Report”), a Panel of the Board on Professional Responsibility (the “Panel”) found that Feuerhake had violated Rules 3.4(c) and 8.4(d) of the Dela-ware Lawyers’ Rules of Professional Conduct and Rule 7(c) of the Delaware Lawyers Rules of Disciplinary Procedure. The Panel recommended disbarment. Feuer-hake objects to the Panel’s recommended sanction and argues that we should extend his suspension. We find no merit to his objection and order disbarment.

I. Facts and Procedural History1

Feuerhake was admitted to the bar in 1987 and engaged in private practice until July 2010. On July 13, 2010, this Court entered an order suspending Feuerhake from the practice of law for two years (the “Suspension Order”).2 In relevant part, the Suspension Order provides:

3. During the period of suspension, Respondent shall conduct no act directly or indirectly constituting the practice of law, including the sharing or receipt of any legal fees, except that Respondent shall be entitled to any legal fees earned before the date of this Order.
4. Respondent shall be prohibited from having contact with clients or prospective clients, witnesses, or prospective witnesses when acting as a paralegal, legal assistant, or law clerk under the supervision of a member of the Dela-ware Bar or otherwise.3

During his suspension, Feuerhake worked as a paralegal under the supervision of Jeffrey K. Martin, Esquire. But Feuerhake never provided Martin with a copy of the Suspension Order. Nor did he inform Martin of this Court’s prohibition on his ability to practice law during his suspension. The record also demonstrates that there was sufficient staff available at Martin’s office to return phone calls and contact clients.

Following his suspension, Feuerhake communicated with a client, Ms. Lamb, to [1060]*1060inquire about facts related to her case. They planned for and later discussed the results of a pretrial conference. Feuer-hake also spoke with another client, Ms. Barkes, up to twenty times to discuss the contents of briefs he wrote and filings by opposing counsel. Feuerhake also attended four depositions at which Ms. Barkes was present and communicated with the four different witnesses being deposed.

In conjunction with these specific violations, Feuerhake continued to engage in the practice of law in violation of the Suspension Order. He discussed cases with clients. He exchanged emails with opposing counsel about a draft pre-trial order and commented substantively on its contents. Feuerhake also attended a pre-trial conference before the District Court on behalf of a client. Although Feuerhake noted on the record that he was only attending as a paralegal, he nonetheless addressed the court, made arguments and objections, responded to opposing counsel, and tried to distinguish case law.

Finally, Feuerhake received $39,466.66 as his share of a contingency fee from a settlement agreement. Even though the Suspension Order prohibited Feuerhake from receiving any legal fees following his suspension, the settlement payment was for work he performed both before and after his suspension. Rather than calculate the appropriate division from the settlement, Feuerhake chose instead to take his full share because he claimed that a more precise figure would have been too difficult to calculate and because he was proud of the quality work he provided to his client.

In 2013, the Office of Disciplinary Counsel (“ODC”) filed a Petition for Discipline against Feuerhake. After an investigation and a hearing, the Panel found that Feuer-hake had violated Rules 3.4(c) and 8.4(d) of the Rules of Professional Conduct and Rule 7(c) of the Rules of Disciplinary Procedure. To determine the appropriate sanction, the Panel considered six aggravating factors and one mitigating factor. Feuerhake’s aggravating factors included (1) his prior disciplinary record, (2) his year-and-a-half pattern of misconduct, (3) the multiple offenses of misconduct, (4) a refusal to acknowledge the wrongfulness of his conduct, and (5) his substantial experience in the practice of law since 1987. His mitigating factor included his cooperation with the ODC and the disciplinary proceedings.

The ODC urged the Panel to recommend a sanction of disbarment. Feuer-hake advocated for an extended suspension. The Panel ultimately recommended a sanction of disbarment. Feuerhake’s objection to the Panel’s Report followed.

II. Supreme Court Review

This Court has “inherent and exclusive authority to discipline members of the Delaware Bar.”4 Although the recommendations of the Board of Professional Responsibility are helpful, “we are not bound by those recommendations. Our role is to review the record independently and determine whether there is substantial evidence to support the Board’s factual findings.”5 We review de novo the Board’s conclusions of law.6

Rule 8.4(d) of the Delaware Lawyers’ Rules of Professional Conduct provides: “It is professional misconduct for a lawyer to ... engage in conduct that is prejudicial [1061]*1061to the administration of justice.”7 Rule 8.4(c) provides that a lawyer shall not “knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists.”8 Finally, Rule 7(c) of the Delaware Lawyers’ Rules of Disciplinary Procedure states: “It shall be grounds for disciplinary action for a lawyer to ... [vjiolate the terms of any conditional diversion or private or public disciplinary or disability disposition.”9

In the proceeding below, the Panel found that Feuerhake violated two Rules of Professional Conduct and one Rule of Disciplinary Procedure. Feuerhake violated Rule 3.4(c) when he knowingly disobeyed the terms of his Suspension Order by continuing to practice law, appearing in District Court, attending depositions, contacting clients, and accepting fees for work performed after his suspension. This same conduct supports his violation of Rule 7(c) of the Rules of Disciplinary Procedure by violating the terms of his Suspension Order. Finally, his disregard of a binding order of this Court was prejudicial to the administration of justice. A suspended attorney cannot provide the necessary representation before a court, at a deposition, or by simply answering a client’s questions. By ignoring a clear suspension order to the contrary, Feuerhake violated Rule 8.4(d) by prejudicially affecting the administration of justice.

Feuerhake concedes these violations. Further, there is adequate record evidence to support the Panel’s findings by clear and convincing evidence.

III. Sanctions

Having determined that there is sufficient evidence to support the Panel’s findings, our next step is to make an independent determination of an appropriate sanction.

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Related

In the Matter of a Member of the Bar of the Supreme Court
189 A.3d 1288 (Supreme Court of Delaware, 2018)
In re Woods
143 A.3d 1223 (Supreme Court of Delaware, 2016)
In Re a Member of the Bar of the Supreme Court of Delaware: Martin
105 A.3d 967 (Supreme Court of Delaware, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
89 A.3d 1058, 2014 WL 1347099, 2014 Del. LEXIS 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-a-member-of-the-bar-of-the-supreme-court-of-delaware-feuerhake-del-2014.