In re a Member of the Bar of the Supreme Court of the State: Sullivan

801 A.2d 933, 2002 Del. LEXIS 410
CourtSupreme Court of Delaware
DecidedJune 27, 2002
DocketNo. 116, 2002
StatusPublished
Cited by1 cases

This text of 801 A.2d 933 (In re a Member of the Bar of the Supreme Court of the State: Sullivan) 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 the State: Sullivan, 801 A.2d 933, 2002 Del. LEXIS 410 (Del. 2002).

Opinion

PER CURIAM.

The petitioner, John J. Sullivan, Jr., has filed an application for reinstatement to active practice as a Delaware lawyer. This Court had suspended Sullivan from the practice of law for a period of eighteen months beginning September 1, 1998 for numerous violations of the Delaware Lawyers’ Rules of Professional Conduct (DLRPC), including making false statements to clients, failing to act with diligence, and failing to provide competent representation.1 Sullivan filed his petition for reinstatement with the Board on Professional Responsibility on September 26, 2001.

After a hearing on December 10, 2001, a Panel of the Board (the Panel) issued a report, dated March 6, 2002, recommending that Sullivan be reinstated to active practice, subject to a three year period of public probation with conditions. The Panel adopted all of the probationary conditions recommended by the Office of Disciplinary Counsel (ODC) except for two. The Panel specifically rejected the ODC’s recommendations that (i) Sullivan make a formal offer for repayment of a $76,000 debt to a client, which previously had been discharged in bankruptcy; and (ii) Sullivan be required to carry malpractice insurance. Sullivan raised no objections to the Panel’s Report. The ODC filed objections to the Panel’s Report with respect to the two probationary conditions that the Panel rejected.

Reinstatement Hearing

Pursuant to DLRPC Rule 22, a lawyer petitioning for reinstatement to active practice after a suspension in excess of six months must be able to demonstrate to the Board, by clear and convincing evidence, the lawyer’s professional rehabilitation and current professional competence.2 In support of his petition, Sullivan presented the testimony of several witnesses.

Dr. Carol Tavani testified before the Panel that she first met Sullivan in 1997 when he was referred to her by Victor Battaglia, Esquire, in his role as a member of the Professional Guidance Committee. Dr. Tavani diagnosed Sullivan as suffering from profound major depression and anxiety disorder with severe phobia. Dr. Ta-vani stated that Sullivan has continued to treat with her and has made excellent progress. She testified that, although Sullivan will need to continue taking medication indefinitely to treat his disorders, he is fully able to return to the practice of law. She opined that Sullivan presents a very low risk for recidivism and that he does not represent a danger to the public.

Dr. Neal Shore, who testified on behalf of the ODC, concurred with Dr. Tavani’s diagnosis. Dr. Shore also stated that, as long as Sullivan continues to remain in active treatment, a recurrence of his pro[935]*935fessional misconduct was unlikely. In sum, Dr. Shore opined that Sullivan “is currently able and fit to return to the practice of law.”

Sullivan testified on his own behalf. He testified about the misconduct that had led to his eighteen month suspension and his subsequent treatment for the depression and anxiety that had precipitated the misconduct. He acknowledged that three of the seven client matters that had resulted in his suspension had also resulted in malpractice claims against him. While two of those matters remain in litigation, one matter, involving a client named Robert Smith, had been settled and had resulted in a judgment against Sullivan for $76,000. One of the conditions of the settlement was that Smith’s judgment would not be dis-chargeable in bankruptcy. Notwithstanding this agreement, Sullivan testified that, upon the advice of counsel, he listed Smith’s obligation as a dischargeable debt in his bankruptcy petition. Ultimately, the $76,000 obligation was compromised to $25,000. Sullivan testified that he feels a moral obligation to Smith to repay the full $76,000, although he cannot afford to do it at this time.

The final witness to testify was Joseph Wahl, Esquire. Wahl testified that his law practice is limited to domestic relations. Sullivan has been working in his office as a paralegal since 1999. Wahl testified that Sullivan’s work product is outstanding, and he intends to expand Sullivan’s duties incrementally if Sullivan is reinstated. Wahl stated that he would be willing to act in the capacity of Sullivan’s practice monitor. Wahl testified that he does not maintain malpractice insurance but that his personal assets are significant enough to cover any successful malpractice claim against his firm.

Panel’s Findings and Recommendation

After considering all of the testimony, the Panel found that Sullivan had proven his rehabilitation and his current professional competence by clear and convincing evidence and concluded that Sullivan should be reinstated, subject to a three year period of probation upon reinstatement. The Panel then considered the conditions for Sullivan’s probation, which were proposed by the ODC. Sullivan consented to all of the conditions but the following two: (i) that he be required to make a formal offer of payment to Mr. Smith for the $76,000 debt; and (ii) that he be required to carry malpractice insurance in limits to be approved by the ODC. After careful consideration, the Panel rejected the two disputed conditions, stating:

The Panel did not agree with two conditions offered by the ODC. The first condition is that Petitioner be required to contact Mr. Smith and to make a formal offer for repayment of $76,000.00. The Panel was concerned that Petitioner was already discharged of this obligation by a court of competent jurisdiction. The Panel was also impressed with Petitioner’s sworn statement during the proceeding that he treats this as a moral obligation and intends to make complete payment to Mr. Smith. Likewise, the Panel did not adopt the requirement that Petitioner be required to carry malpractice insurance. Petitioner, by the terms of his probation, is prohibited from engaging in the solo practice of law. His current employer, Mr. Wahl, has indicated under oath and as an officer of the Court and member of the Delaware Bar that he would intend to make good any client wronged with his personal assets. While the panel recognizes that the Court imposed such an obligation in the matter of In re Solomon, it appears that the Court required Respondent in that action “to continue [936]*936to carry malpractice insurance commensurate with her current coverage.” In re Solomon, Del.Supr., 745 A.2d [874,] 892 (1999).

ODC’s Objections

The ODC filed objections to the Panel’s Report limited to the Panel’s rejection of the two disputed probationary conditions. The ODC argues that the primary purpose of the disciplinary system is to protect the public. Given Sullivan’s history of prior misconduct, which resulted in three malpractice actions and Sullivan’s suspension from the practice of law for eighteen months, the ODC argues that malpractice insurance is necessary because it is the only effective method to protect the public in the event of Sullivan’s future malpractice.

The ODC points out that this Court, albeit in a different context, has required a lawyer to carry malpractice insurance as a condition of disciplinary probation.3 Furthermore, given Sullivan’s own financial situation and his apparent inability to cover any future legal malpractice claims with his own resources,4 the ODC argues that it is necessary for Sullivan’s employer to have sufficient malpractice insurance to cover any successful claims of malpractice by Sullivan.

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Related

In Re Sullivan
801 A.2d 933 (Supreme Court of Delaware, 2002)

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Bluebook (online)
801 A.2d 933, 2002 Del. LEXIS 410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-a-member-of-the-bar-of-the-supreme-court-of-the-state-sullivan-del-2002.