In the Matter of a Member of the Bar of the of the Supreme Court of Delaware: JEFFREY K. MARTIN, ESQUIRE, Respondent
Submitted: October 29, 2014.
Motion for Reargument filed 12/8/2014; Denied 12/16/2014. Case Closed December 16, 2014.
Upon Review of the Report of the Board on Professional Responsibility.
Charles Slanina, Esquire, Finger & Slanina, LLC, Hockessin, Delaware, for the Respondent.
Jennifer-Kate Aaronson, Esquire, Chief Counsel, Wilmington, Delaware, for the Office of the Disciplinary Counsel.
Before STRINE, Chief Justice; HOLLAND and RIDGELY, Justices.
This is a lawyer disciplinary proceeding. A panel of the Board on Professional Responsibility found that Jeffrey Martin violated Rule 5.5(a) and Rule 8.4(d) of the Delaware Lawyers' Rules of Professional Conduct (DLRPC) by assisting a suspended lawyer, Herb Feuerhake, in the unauthorized practice of law. The Board did not find other rule violations charged by the Office of Disciplinary Counsel (ODC). The Board recommended a private admonition.
Both the ODC and Martin have filed objections to the Board's findings and recommendation. The ODC contends that the Board's findings are not supported by substantial evidence. The ODC seeks Martin's disbarment. Martin contends that there was insufficient proof of any violations and that the matter should be dismissed without any sanction. Alternatively, Martin asserts that a private admonition is the appropriate sanction.
Based on the evidence presented, the record supports a finding that Martin acted knowingly in assisting Feuerhake's unauthorized practice of law and that there is clear and convincing evidence to support the ODC's arguments on appeal. At the time he engaged in this misconduct, Martin was already on probation for violating his ethical duties in the financial management of his law firm, violations that were similar to other past violations. Given that reality, Martin had no excuse for failing to take great care when deciding to engage a suspended lawyer to help him with pending cases. Although we do not agree with the ODC that this misconduct warrants disbarment, it does require at least the strong sanction of a suspension.
II. FACTS AND PROCEDURAL HISTORY
A. Martin's Relevant Legal Practice
Martin was admitted to the Delaware Bar in 1985. He worked for a number of years at Elzufon, Austin & Drexler before he left to open his own practice in 1995. Feuerhake worked for Martin from 1998 until 2001 when Feuerhake left to open his own solo practice. From 2004 to 2007, Martin worked for Margolis Edelstein. He left that firm to form a partnership, Martin & Wilson P.A., with Tim Wilson. Early in 2009, Wilson left the firm. Around the same time, one of Martin's employees contacted the ODC to report that Martin had not been paying his taxes. An audit revealed that Martin's books and records did not comply with DLRPC Rule 1.15(b) and that he had failed to file or pay various taxes for certain time periods. As a result, Martin agreed to a private
admonition with conditions in May 2009.
During the same time period in 2009, Herb Feuerhake was also being investigated by the ODC for disciplinary violations. As a result of the ongoing ODC investigation against Feuerhake, Martin agreed to act as Feuerhake's practice monitor. As practice monitor, Martin discussed Feuerhake's active matters with him, including pending deadlines and statutes of limitations. Feuerhake moved his solo practice into Martin's office space. Martin and Feuerhake also worked as co-counsel on cases together, including representing the plaintiffs in two civil rights cases filed in the United States District Court for the District of Delaware, captioned as Lamb v. Taylor, C.A. No. 08-CV00324-GMS, and Barkes v. First Correctional Medical Servs. Inc., C.A. No. 06-CV104-LPS. The cases were handled on a contingent fee basis. Martin and Feuerhake had a standing agreement that Martin would receive 60% of any fee and Feuerhake would receive 40%.
In November 2009, the ODC's investigation of Feuerhake led to the filing of a disciplinary complaint against him. Ultimately, on July 13, 2010, this Court suspended Feuerhake from practicing law for a period of two years. Among the conditions of Feuerhake's suspension was a prohibition against performing, directly or indirectly, any act that constituted the practice of law, including sharing or receiving legal fees (except for fees earned before July 13, 2010). The Court also expressly prohibited Feuerhake from having contact with clients (or prospective clients) and witnesses (or prospective witnesses) when acting as a paralegal or legal assistant under the supervision of another Delaware lawyer.
Shortly after Feuerhake's suspension in July 2010, Martin himself was the subject of another disciplinary complaint filed in August 2010. In that complaint, Martin was charged with violating the conditions of his 2009 private admonition by failing to pre-certify his 2010 certificate of compliance, by failing to promptly pay certain taxes, by failing to properly maintain his law firm's books and records, by failing to adequately supervise his non-legal staff, and by filing false statements with the Court in his certificate of compliance. The Board found that Martin had committed most of the charged violations and recommended a public admonition with a public probation. This Court adopted the Board's recommendation. Martin was publicly reprimanded and placed on probation for one year from June 23, 2011 to June 22, 2012.
In the summer of 2012, Carol Waldhauser of the Delaware Lawyers Assistance Program contacted Martin and asked him if he would give another suspended lawyer, Ron Poliquin, a job as a paralegal. Although he initially declined, Martin reconsidered after talking to Poliquin's counsel
and reviewing this Court's decision suspending Poliquin from the practice of law.
B. Martin's Relationship with Feuerhake Post-Suspension
After this Court suspended Feuerhake in July 2009 and during the period while Martin himself was on disciplinary probation, Feuerhake continued to work in Martin's law office as a paralegal. Martin testified that, although he knew Feuerhake was suspended, he never read the Court's suspension order. The record reflects that Feuerhake researched and drafted briefs in several of Martin's employment cases. For those cases, Feuerhake would submit an invoice, and Martin would pay him an hourly rate as a paralegal. Feuerhake also continued to work as a paralegal on the Burns and the Barkes litigation, which he and Martin had been co-counsel on prior to his suspension. For those two matters, Feuerhake did not receive compensation on an hourly basis. According to an email Feuerhake sent to Martin in September 2011, the two men were continuing, with respect to those two cases, to operate in accordance with the fee agreement they had reached when Feuerhake was licensed to practice law, namely that Martin would receive 60% of the fee and Feuerhake would receive 40%. For the Burns litigation, the email reflected that David Facciolo would receive 20% of the fee because he had referred the Burns matter to Feuerhake. Therefore, Martin's and Feuerhake's percentages were to be reduced to 48% and 32%, respectively.
While suspended, Feuerhake met with plaintiff Lamb regarding the Burns litigation in Martin's office and in court. Feuerhake also exchanged emails with opposing counsel in that case. He attended a pretrial conference with Martin before a United States District Court judge. During the conference and at Martin's request, Feuerhake addressed the judge, distinguished case law, explained the relevance of anticipated trial testimony, lodged objections, and responded to opposing counsel's statements. When the litigation settled in April 2012, almost two years after Feuerhake's suspension, Martin gave Feuerhake $39,466, representing his full 32% share of the contingent fee under the agreement they had reached when Feuerhake was a licensed lawyer.
While suspended, Feuerhake also met and communicated with plaintiff Barkes up to twenty different times to discuss the contents of briefs he wrote and filings by opposing counsel. He attended four depositions in the case at which Barkes was ...