In re Nadel

82 A.3d 716, 2013 WL 6252499, 2013 Del. LEXIS 606
CourtSupreme Court of Delaware
DecidedDecember 4, 2013
DocketNo. 559, 2013
StatusPublished
Cited by11 cases

This text of 82 A.3d 716 (In re Nadel) 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 Nadel, 82 A.3d 716, 2013 WL 6252499, 2013 Del. LEXIS 606 (Del. 2013).

Opinion

PER CURIAM:

This is a disciplinary proceeding filed by the Office of Disciplinary Counsel (“ODC”) against the Respondent, Raymond S. Na-del (“Nadel”). On June 10, 2013, a Panel of the Board on Professional Responsibility (the “Panel”) filed a Report (the “Panel’s Report”) finding that Nadel engaged in the unauthorized practice of law. The Panel recommended that: Nadel be suspended from practicing law for one year; prohibited from providing advice to any Delaware clients for a period of one year; prohibited from any admission pro hac vice for a period of three years; be publicly sanctioned; and pay the costs of the disciplinary proceedings.

Nadel raises three objections to the Panel’s Report. Nadel first argues that he was prejudiced by the ODC’s decision to prosecute Nadel by the Board on Professional Responsibility instead of the Board on the Unauthorized Practice of Law (“BUPL”). Nadel also contends that the Panel’s recommended sanctions violate Equal Protection and exceed the goals of attorney discipline.

We have concluded that Nadel’s objections are without merit. We have determined that the factual findings set forth in the Panel’s Report are supported by the record. We have independently concluded that the sanctions recommended in the Panel’s Report are appropriate.

Facts and Procedural History 1

Nadel is not a member of the Bar of the Supreme Court of Delaware. He was admitted to the Bars of the State of New Jersey and the Commonwealth of Pennsylvania in 1982. Nadel currently practices in a private firm located in Cherry Hill and Pennsauken, New Jersey.

From April 2009 through September 21, 2012, Nadel engaged in the unauthorized practice of law in Delaware. After he was [719]*719initially asked to help a patient by a Delaware doctor, Dr. Morris Peterzell, Nadel met with more than seventy-five Delaware residents who were involved in auto accidents. These accidents occurred in Delaware and involved Delaware insurance policies governed by Delaware law. Nadel met with roughly half of his Delaware clients at Dr. Peterzell’s medical office in Wilmington. But in each instance, Nadel would attempt to settle the insurance claims on behalf of his Delaware clients. If settlement proved unsuccessful, Nadel would turn the case over to local Delaware counsel to pursue the litigation.

Nadel never filed a lawsuit in Delaware or made any representations to a Delaware court. Further, Nadel never advertised or actively solicited clients. Nor did he ever represent to a Delaware citizen that he was a member of the Delaware bar. But Nadel does admit that by meeting with his Delaware clients in Delaware, he could have unintentionally created the impression that he was licensed to practice law in Delaware. No actual harm resulted from Nadel’s representation. But these Delaware clients accounted for ten to fifteen percent of Nadel’s legal practice.

In 2012, the ODC filed a disciplinary claim with the Board on Professional Responsibility against Nadel alleging two counts of the unlicensed practice of law in violation of Rules 5.5(b)(1) and 5.5(b)(2) of the Delaware Lawyers’ Rules of Professional Conduct.2 Nadel admitted both violations. Although not a defense, Nadel argued that he was not aware of Rule 5.5 and was under the belief that he was not required to be a licensed Delaware lawyer to represent clients in pre-litigation matters.

After a hearing on the matter, the Panel found by clear and convincing evidence that Nadel had knowingly violated the Delaware Lawyers’ Rules. To determine the appropriate sanction, the Board considered four aggravating factors and four mitigating factors. Nadel’s aggravating factors included “(1) dishonest or selfish motive, (2) pattern of misconduct, (3) multiple offenses, and (4) substantial experience in the practice of law.”3 His mitigating factors included “(1) absence of a prior disciplinary record, (2) timely good faith effort to make restitution or to rectify misconduct, (3) full and free disclosure to disciplinary board ..., and (4) remorse.”4

The ODC urged the Panel to recommend a three-year suspension. Nadel argued that a public reprimand would be more appropriate, primarily because the State of New Jersey will likely impose a reciprocal suspension. Despite the parties’ contentions, the Panel recommended a one-year suspension in addition to other limitations.

Standard of Review

We have the “inherent and exclusive authority to discipline members of the Delaware Bar.”5 “We also have the authority to discipline non-Delaware attorneys who provide legal services in this State in violation of our Professional Code [720]*720of Conduct.”6 Although the recommendations of the Panel are helpful, we are not bound by those recommendations.7 Our role is to review the record independently and determine whether there is substantial evidence to support the Panel’s factual findings.8 We review the Board’s conclusions of law de novo.9

Rule 5.5 of the Delaware Lawyers’ Rules of Professional Conduct prohibits a lawyer from practicing in a jurisdiction “in violation of the regulation of the legal profession in that jurisdiction.”10 A lawyer not admitted to practice in Delaware must refrain from establishing a “continuous presence in this jurisdiction for the practice of law.”11 Further, an out-of-state lawyer cannot “hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.” 12

Forum Selection Proper

Nadel first argues that the ODC should not have proceeded against Nadel before the Board on Professional Responsibility, resulting in a harsher penalty than would have been given by the BUPL. As we explained in In re Tonwe, the ODC has the authority to prosecute a disciplinary proceeding against a lawyer who engages in professional misconduct with either the BUPL or the Board on Professional Responsibility.13 That decision to proceed with one entity or another is a discretionary decision to be made by the ODC.14 Further, the Board on Professional Responsibility has the power, without limitation, to make findings of fact and recommendations for sanctions with respect to disciplinary matters.15

Because this is his first disciplinary offense, Nadel argues that if the ODC had pursued his case with the BUPL, he would have received an Order prohibiting him from practicing law in Delaware and other sanctions including limits on pro hac vice admissions. Nadel further contends that the ODC’s choice to present his case to the Board on Professional Responsibility rather than that BUPL should not result in a more severe sanction. Nadel’s arguments, however, lack merit.

The Rules of Professional Conduct and the Rules of Disciplinary Procedure provide that the ODC has full discretion to choose the appropriate forum to enforce the Delaware Lawyers’ Rules of Professional Conduct. Once a claim is before the Board on Professional Responsibility, the Panel is free to determine an appropriate sanction, subject to the independent review and final determination by this Court.

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Cite This Page — Counsel Stack

Bluebook (online)
82 A.3d 716, 2013 WL 6252499, 2013 Del. LEXIS 606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-nadel-del-2013.