In re Berl

560 A.2d 1009, 1989 Del. LEXIS 166
CourtSupreme Court of Delaware
DecidedMay 11, 1989
StatusPublished
Cited by1 cases

This text of 560 A.2d 1009 (In re Berl) 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 Berl, 560 A.2d 1009, 1989 Del. LEXIS 166 (Del. 1989).

Opinion

PER CURIAM:

This disciplinary matter, involving a member of the Bar of this Court, C. Wag-gaman Berl, Jr., is before the Court for a second time. In our first decision, we affirmed a finding of the Board on Professional Responsibility that Berl had violated Rule 1.5(e)(1) of the Delaware Lawyers’ Rules of Professional Conduct by improperly sharing with Stephen A. Sheller, a Philadelphia attorney, in a fee division received from a medical malpractice recovery of Dennis Robinson in settlement of Delaware court litigation. Matter of Berl, Del.Supr., 540 A.2d 410 (1988). However, we found that we could not sustain the Board’s further finding that Berl had also violated Rule 1.4(b)1 in admittedly failing to advise [1010]*1010Robinson of the fee limitations of the Delaware medical malpractice statute, 18 Del. C. § 6865. We found the Board’s report lacking in explicit, and supportive, findings establishing the time when a lawyer-client relationship was found to have arisen between Berl and Robinson from which a Rule 1.4(b) duty evolved. In our view, the timing of an attorney-client relationship arising between Berl and Robinson was significant to our review of the Board’s finding of Berl’s violation of a Rule 1.4(b) duty to disclose section 6865 to Robinson.

On motion for rehearing, Disciplinary Counsel contended that the Board had implicitly found a lawyer-client relationship to have arisen between Berl and Robinson either from their pre-referral contacts or from Berl’s fee sharing violation of Rule 1.5(e). However, Berl argued that the hearing record concerning his pre-referral contacts with Robinson permitted but one conclusion: that no lawyer-client relationship had arisen between them either expressly or by inference from their conduct. Matter of Berl, 540 A.2d at 414. We understood Berks position to be, and the record to confirm, that Berl had refused to represent Robinson and had referred Robinson’s case to Sheller as soon as Berl discovered that Robinson’s claim lay against a Delaware physician with whom Berl had a close relationship.

We also understood that after Berks referral of Robinson’s case to Sheller, Berl had no further contacts with Robinson and no duty to explain Delaware fee limitations on a malpractice recovery. Berl also took the position that the sums he received from Sheller were for services Berl purportedly rendered as a consultant to Sheller and as an expert on Delaware malpractice law. However, Berks characterization of his post-referral role did not square with the Board’s findings from Berks post-referral activities in the case that Berl remained interested in the case and that Berl rendered ongoing services in the case until it was settled. 540 A.2d at 414 and n. 6.

We concluded that it was important that this apparent conflict in the record be resolved and that our review function precluded us from assuming the role of fact finder. In our view, for a Rule 1.4(b) duty to advise Robinson to attach and, in turn, require Berl to inform Robinson of section 6865, the Board should make more explicit findings as to when in Berks dealings with Robinson the Board found a lawyer-client relationship to arise. For that reason we remanded the matter to the Board for “more specific findings of fact regarding the existence of an attorney-client relationship if a Rule 1.4(b) violation is to be sustained.” 540 A.2d at 415.

Following remand, Disciplinary Counsel enlarged the record, without objection, to include several additional letters from Robinson to Berl written between November 29, 1983 and December 19, 1983. The record was also enlarged to include two blank forms of authorization for release of medical information customarily used by Berl. Also added to the record was a copy of a letter dated December 7, 1983 from Berl to Robinson’s attorney in South Carolina who had handled Robinson’s related workmen’s compensation disability claim. Following reargument by the parties on the remanded issue of the Rule 1.4(b) violation, the Board filed with this Court in September its second and final report.

The report recounts that in argument upon remand Berl reiterated his position that the facts of record were insufficient “to show that he ever agreed to represent Robinson; that he simply referred Robinson to Pennsylvania counsel, Sheller; that what Berl did thereafter was as a consultant to Sheller; and that he had no attorney-client relationship to Robinson and owed him no duties except [confidentiality].” Therefore, Berl argued, he could not be found to have violated Rule 1.4(b).

The Board has decisively rejected Berks position and found in his pre-referral and post-referral activities, with supportive findings of fact, that Berl entered into an [1011]*1011ongoing attorney-client relationship with Robinson. Quoting for the first time Berl’s testimony • before the Board, the Board finds that Berl himself characterized his role on Robinson’s behalf before referring Robinson’s case to Sheller as “attorney in charge.” Using Berl’s own testimony, the Board finds “not that Robinson was not a client but rather that Berl was doing work for Robinson throughout the matter in the expectation of a contingent fee.” As for the significance of Berl’s “referral” of Robinson to Sheller, Berl describes his post-referral role as follows:

... it is my invariable practice to say to a client, “Look, this is what I am going to do, and you don’t have to be concerned about it because I am still going to be working on your case. I will be in the background, but I just do not want my name on the official papers.” And in substance I probably said something to him like “It is not going to change the fee arrangement. As it turns out to be, in substance what you get is two for the price of one.” I find myself using that expression quite often.

In defending the amount of the fee he received from the case as not unreasonable, Berl admits his performance of valuable services for Robinson:

“Well, I don’t think it is unreasonable at all, because you have to look at it in terms of the service you render to somebody. What I was called upon to do was to take a case, analyze the case based upon 15 or 20 years experience, do what I had to do to do my thing, get it started, and as it turned out in this case, get it into capable hands to pursue and get a good result. So I did what I was called upon to do. In fact, I think I did somewhat more than I was called upon to do, really, in terms of my active involvement in the case.

This is not a situation where a lawyer just simply makes a referral without doing any work. This is a case that I retained an active interest in right along and spent a considerable amount of time on. So I don’t regard it as being unreasonable at all.”

Berl also testified that Robinson knew or should have known that Berl was “going to be continuing in the case” after he referred the case to Sheller. Berl testified:

... I am confident that I told him that while the case was going up to Mr. Sheller, I would be continuing to be involved in the case, although not in an official way. And I am sure he knew that and I am sure he acquiesced in that and I am sure he realized that there would be a fee paid to me. Because anybody in his right mind knows that lawyers don’t work for nothing.

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Bluebook (online)
560 A.2d 1009, 1989 Del. LEXIS 166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-berl-del-1989.