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In re Bria

Supreme Court of Delaware

February 27, 2014

In the Matter of a Member of the Bar of the Supreme Court of the State of Delaware: ROBERT S. BRIA, Respondent

Submitted February 26, 2014.

Case Closed March 18, 2014.

Editorial Note:

This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.

Board Case No. 108200-B.

Before BERGER, JACOBS and RIDGELY, Justices.

OPINION

Carolyn Berger Justice

ORDER

This 27th day of February 2014, it appears to the Court that the Board on Professional Responsibility (the " Board" ) has filed a Report on this matter pursuant to Rule 9(d) of the Delaware Lawyers' Rules of Disciplinary Procedure. The Office of Disciplinary Counsel (" ODC" ) approved the December 16, 2013 Report of the Board. Petitioner, through counsel, filed objections to the Board's Report, and ODC has responded to those objections. The Court has reviewed the matter pursuant to Rule 9(e) of the Delaware Lawyers' Rules of Disciplinary Procedure and approves the Board's Report.

NOW, THEREFORE, IT IS ORDERED that the Report filed by the Board on Professional Responsibility on December 16, 2013 (copy attached) is hereby APPROVED.

IT IS FURTHER ORDERED that:

1) The Respondent shall be prohibited and suspended from engaging in the practice of law for a period of six months and one day, beginning March 4, 2014 and ending September 5, 2014;

2) During the suspension, the Respondent shall conduct no act directly or indirectly constituting the practice of law, including the sharing or receipt of any legal fees. The Respondent shall also be prohibited from having any contact with clients or prospective clients or witnesses or prospective witnesses when acting as a paralegal, legal assistant, or law clerk under the supervision of a member of the Delaware Bar, or otherwise;

3) The contents of the Board's report shall be made public;

4) The Office of Disciplinary Counsel shall apply to the Court of Chancery for the appointment of a receiver of the practice of the Petitioner pursuant to Procedural Rule 24;

5) The Respondent shall fully cooperate with the ODC in its efforts to monitor his compliance with this Order;

6) As reinstatement is not automatic, should Respondent apply for reinstatement, any such application must be made pursuant to Rule 22 of the Delaware Lawyers' Rules of Disciplinary Procedure following the suspension period;

7) This Order shall be disseminated by the ODC in accordance with Rule 14 of the Delaware Lawyers' Rules of Disciplinary Procedure;

8) The ODC is directed to file within ten days of the date of this Order the costs of the disciplinary proceedings. Thereafter, the Respondent is directed to have all costs paid within thirty days.

The matter is hereby CLOSED.

BOARD ON PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF DELAWARE REPORT AND RECOMMENDATION ON MISCONDUCT AND SANCTIONS

DECEMBER 16, 2013

Report and Recommendation on Misconduct and Sanctions

On July 25, 2013, a panel of the Board on Professional Responsibility, consisting of Richmond L. Williams, Esquire, Chair, Theresa V. Brown-Edwards, Esquire and Nancy J. Shevock, conducted a hearing on the allegations of misconduct brought by the Office of Disciplinary Counsel against Respondent, Robert S. Bria. Jennifer-Kate Aaronson, Esquire appeared for ODC and Charles Slanina, Esquire appeared for the Respondent. The hearing was continued until September 24, 2013, to permit the submission of additional argument regarding the possible impact of the Supreme Court Opinion, In re Lyle, 74 A.3d 654, 2013 WL 4543284 (Del. 2013), which was issued after the hearing. The date for filing of this Report and Recommendation has been extended, by order of the Court, until December 16, 2013.

In light of the pleadings, in which the allegations of misconduct were either admitted or withdrawn, ODC and Respondent requested that the Panel address both the allegations of misconduct and sanctions at the hearing. The Panel has consented to this approach. Mindful of the Court's guidance suggesting that the Panel should make its own independent determination, the Panel will first consider the allegations of misconduct before turning to sanctions.

Facts

Respondent was admitted in 1988 and, at all times relevant here, has been a member of the Bar of the Supreme Court of Delaware in private practice. Respondent is the managing partner for the Delaware Office of Scott G. Mayhart & Associates, LLC. (petition and Answer, Paragraph 1).

In 2007, Respondent ceased being a contractor and/or employee in his practice and became a partner. (Bria, at 42-45).[1] The following year, in the spring of 2008, Respondent was unable to determine how to fill out his taxes using the software program " Turbotax" because be was unable to figure out how to enter his partnership income from his " K-1" form issued by the partnership. ( Id.). He filed requests for extension of the filing date for his federal taxes in 2008 and subsequent years. (Bria 38). He testified that he did not file for state extensions because he erroneously believed that filing for federal extensions would automatically result in state extensions. (Bria 37-38). As of the date of the hearing, Respondent has filed and paid taxes for all tax years through 2011. (Bria 76). He was awaiting the form necessary to file his 2012 taxes. ( Id.).

The Annual Registration Statement requires a response to the question " Have you filed your personal State and Federal income tax returns for all prior years?" It then requires an explanation, if the answer is " no." Respondent bas admitted that " In his 2011 Delaware Supreme Court Annual Registration Statement, Respondent disclosed that he had not filed his State and Federal income tax returns for 2007-2009; however. Respondent asserted that he " [f]iled for extensions for each year." (Answer, Paragraph 2). In his 2012 Delaware Supreme Court Annual Registration Statement. Respondent disclosed that he had not filed his State and Federal income tax returns for 2007-2010; however, Respondent asserted that he " [f]iled for extensions for each year." ( Ibid ). Respondent filed federal extension requests for tax years 2007-2011; however, Respondent never filed state extension requests for tax years 2007-2011. ( Id.). For the tax years 2007 - 2011, Respondent failed to timely file his State and Federal personal tax returns and failed to timely pay his State and Federal tax obligations. (Petition and Answer. Paragraph 3).

For tax year 2007, Respondent failed to file a tax return or pay his state income tax in a timely manner. (Answer, Paragraph 4). He received a series of notices advising him of this delinquency beginning on September 3, 2010. ( Ibid ). His return was not filed for this tax year until March 14, 2013. (Id.). Similarly, for Respondent's Federal taxes for tax year 2007, he filed one timely extension but took no further action to extend his deadline for filing or paying taxes. (Answer, Paragraph 5). His return for this year was filed on March 14, 2013 and his outstanding tax liabilities were also paid on that date. ( Ibid ).

A similar pattern was followed for tax years 2008 through 2011. (Petition and Answer, Paragraphs 6-13). Starting in the Spring of 2012 and continuing through the Spring of 2013, there were a series of conversations and written communications between Respondent and representatives of the Delaware Division of Revenue about his tax delinquencies. He entered into a series of payment plans each subsequent one because of lack of compliance with the former one. (See, generally, Answer, Paragraphs 14-27).

After carefully reviewing the evidence on the record, the Panel finds that it supports the allegations and admissions regarding the status of Respondent's federal and state tax obligations for tax years 2007 through 2012 and his Certifications in his Annual Registration with the Supreme Court contained in the Petition and Answer. (Answer Paragraphs 1 though 27).

In addition to testimony regarding the allegations of misconduct, there was testimony to establish the existence of mitigating factors. A number of attorneys testified as to Respondent's good character and his good qualities as a lawyer. (See Sullivan at 109-110, Hill at 113-114, Jones at 117-123 and Landon at 163-173). He also called Carol Waldhauser of the Delaware Lawyer's Assistance Program (DLAP) and Alice O'Brien, a licensed psychological counselor to discuss the circumstances around Respondent's admitted misconduct. Respondent came to DLAP at the recommendation of counsel in the instant proceeding. (Waldhauser at 166). He was referred by Ms. Waldhauser to Ms. Alice O'Brien, a licenced therapist. ( Ibid .). She has monitored respondent since then. ( Id. at 167). In addition to seeing Ms. O'Brien, Respondent voluntarily participated in a CLE program for procrastinators. ( Id. at 167-169). He was a very active participant. ( Id.).

Ms. O'Brien testified that Respondent was referred to her for his procrastination issues in late February 2013. (O'Brien at 124.). Since, then, he has attended 11 or 12 individual sessions and the 8 sessions of the CLE program for procrastinators. (O'Brien at 125). His procrastination is not a diagnosis, but is a feature of anxiety. (O'Brien at 131). Her view is that his procrastination on his personal tax obligations is a symptom of anxiety and the fear of failure. (O'Brien at 127-128). She believes that he is capable of overcoming this issue, by his understanding that his fear and anxiety caused him to " freeze" in the face of his tax obstacle. (O'Brien at 128-129). Mrs. O'Brien further testified that Respondent has made progress in dealing with this problem. (O'Brien at 128) and that he is committed to overcoming it. (O'Brien at 129). On cross examination, Mrs. O'Brien indicated that he would benefit from ongoing support. (O'Brien at 133). She testified that there was no indication that Respondent had an alcohol or substance abuse problem. (O'Brien at 145).

Allegations of Misconduct

At the hearing, ODC advised the Panel that it was withdrawing Count One, an allegation that by failing to pay his taxes, failed to deliver funds to a third party in violation of Rule 1.15(b). It advised that after review of the issue it agreed that Rule 1.15(b) did not apply to an attorney's failure to pay a personal obligation. While recognizing that the decision on what misconduct is determined is ultimately the decision of the Court, as it is a legal issue (a matter of interpretation of the scope of Rule 1.15(b)), the Panel concurs with the recommendation of ODC and Respondent that this provision should not be considered in his case. ...


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