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In re a Member of Bar

Supreme Court of Delaware

December 12, 2017

IN THE MATTER OF A MEMBER OF THE BAR OF THE SUPREME COURT OF THE STATE OF DELAWARE: TIMOTHY A. DILLON

          Submitted: November 21,2017

          Corrected: December 14,2017

          Deirdre A. McCartney, Esquire, Chair

          Daniel F. Wolcott, Jr., Esquire

          John D. Shevock

          Before VALIHURA, VAUGHN, and SEITZ, Justices.

          ORDER

          JAMES T. VAUGHN, JR. JUSTICE

         This 14th day of December 2017, it appears to the Court that:

         (1) This is a lawyer disciplinary proceeding. On November 7, 2017, the Board on Professional Responsibility filed a report with this Court recommending that the respondent, Timothy A. Dillon, Equire, be publicly reprimanded and placed on a period of probation for two years, with the imposition of specific conditions. A copy of the Board's report is attached to this order. Neither the Office of Disciplinary Counsel nor Dillon has filed any objections to the Board's report.

         (2) The Court has considered the matter carefully. We find the Board's recommendation of a public reprimand with a two-year period of probation with conditions to be appropriate. Thus, we accept the Board's findings and recommendation for discipline and incorporate the Board's findings and recommendation by reference.

         NOW, THEREFORE, IT IS ORDERED that the Board's November 7, 2017 report is hereby ACCEPTED. The Office of Disciplinary Counsel shall disseminate this Order in accordance with Rule 14 of the Delaware Lawyers' Rules of Disciplinary Procedure.

         BOARD ON PROFESSIONAL RESPOSIBILITY OF THE SUPREME CORT OF THE STATE OF DELAWARE

         CASE NUMBER 463, 2017

         Board Case Nos. 112927-B, 113266-B

         FILED: NOVEMBER 7, 2017

         REPORT AND RECOMMENDATONS OF THE HEARING PANEL

         Pending before a panel of the Board on Professional Responsibility (the "Board") is a Petition for Discipline filed by the Office of Disciplinary Counsel (the "ODC") in Board Case Nos. 112927-B, 113266-B (the "Petition") against Timothy A. Dillon, Esquire ("Respondent"), a member of the Bar of the Supreme Court of the State of Delaware. The Petition alleged violations of Rules 1.1, 1.3, 1.15 (d), 3.4 (c), 5.3, 8.4 (c) and 8.4 (d). Respondent, through his counsel, Charles Slanina, Esquire, filed an Answer to the Petition (the "Answer"), on March 21, 2017 admitting all of the allegations contained in the Petition.

         On July 13, 2017, a panel of the Board on Professional Responsibility, Deirdre A. McCartney, Esquire, Chair, Daniel F. Wolcott, Jr., Esquire and Mr. John D. Shevock ("the Panel") held a joint liability and sanction hearing on a petition for discipline filed by the (ODC) in the above-captioned matter, Kathleen Valvala, Esquire, presented the petition for ODC. Charles Slanina, Esquire represented Timothy A. Dillon, ("Respondent"). The Panel found that Respondent violated Rules 1.1, 1.3, 1.15 (d), 3.4 (c), 5.3, 8.4 (c) and 8.4 (d) of the Delaware Lawyers' Rules of Professional Conduct ("Rules").

         Procedure Background

         On July 7,2017, prior to the hearing, Counsel for ODC, Respondent and the panel chair held a pre-hearing teleconference to discuss the upcoming hearing. At the request of the parties a joint hearing was scheduled for both the liability and sanctions portions. At the liability portion of the Hearing, the Panel received into evidence a joint exhibit book. The Panel also heard testimony from the Respondent. Following the liability portion of the hearing, the panel concluded mat Respondent had violated all of the counts in the petition for discipline. During the sanctions portion of the hearing, the Panel also heard testimony from the Respondent, Mark Reardon, Esquire, Robert McCann, Esquire, Yvonne Takvorian Saville, Esquire (via affidavit) and Renee Villano. After the sanctions portion of the hearing, at the request of the hearing panel, the record was supplemented by post hearing memorandum on sanctions. The parties filed a joint memorandum regarding admitted facts, rules, violations and recommended sanctions. The record was closed on September 6,2017.

         For the reasons stated below, the Panel finds that Respondent violated Rules 1.1, 1.3, 1.15 (d), 3.4 (c), 5.3, 8.4 (c) and 8.4 (d) by failing to provide competent representation to clients, by failing to diligently represent clients, by knowingly disobeying an obligation under the rules of a tribunal, by failing to supervise his non-lawyer assistants, by engaging in conduct prejudicial to the administration of justice, by failing to maintain his law firm's books and records and engaging in conduct involving misrepresentation.

         Facts

         The record in this proceeding consists of the testimony of witnesses at the hearing, exhibits submitted in connection with the hearing and other submissions of the parties. The transcript of the liability and sanctions portion of the hearing is cited hereinafter, as "Tr. At ____." At the liability and sanctions portion of the hearing, the parties admitted joint exhibits. The joint exhibits admitted at the liability portion of the hearing are cited hereinafter, as "Ex at ____."

         Since the Respondent's Answer had admitted the violations alleged in the Petition, the ODC, the Respondent, and the Panel treated the hearing as relating primarily to sanctions. (Tr. at pp. 3-4). Nevertheless, the Panel received testimony from the Respondent and the exhibits relating to factual circumstances surrounding the violations. The exhibits consisted of 1) a Superior Court opinion in Huelsenbeck el al. v. Fermin-Jiminez and Hichex-Sabino, Del. Super., CA. No. N12C-07-216 JAP, Parkins, J. (June 7,2013) (Memo Op.), 2) a Superior Court opinion in Oliver v. Spitetle. Del. Super., C.A. No. N15C-04-135 JAP and Skinner v. Fleming, Del. Super., C.A. No. N15C-03-088 JAP, Parkins, J. at p. 4-6 (Jan. 8, 2016) (Letter Op.), 3) A Superior Court Opinion in Ricketts v. Brown and Geico, Del. Super., C.A. No. N15C-04-202 JAP (June 3, 2016) (ORDER), 4) a letter from Judge Parkins to ODC (daied June 3, 2016), 5) 20IS Certificate of Compliance, 6) 2016 Certificate of Compliance and 7) Master, Sidlow & Associates, P.A., Independent Accountant Report (dated December 20, 2016).

         Respondent was admitted to the Bar of the Supreme Court of Delaware in 1999. Petition and Answer ¶ 1. Respondent is engaged in die private practice of law and has die primary responsibility for the books and record keeping and management of his law firm McCann & Wall, LLC. Petition and Answer ¶ 1. Respondent has been handling plaintiffs work, personal injury, premise liability and motor vehicle cases since 2008,2009. Tr. at 16. Under Rule 4 of die Delaware Superior Court Civil Rules, the Plaintiff is required to file a praecipe directing die manner and place of service of die Defendants. Petition and Answer ¶ 2. The Prothonotary then issues process as indicated and delivers it to the Sheriff or another person appointed by die Court to serve the Defendant. Petition and Answer 12. If service cannot be made on the Defendant at the address specified in the praecipe the Sherriff or other process server returns the summons to the Superior Court marked non est inventus ("non est"). Petition and Answer ¶ 3.

         Under Superior Court Civil Rule 4 (j), service must be made within 120 days of filing the complaint unless good cause is shown why service was not made and the Court shall dismiss the action as to that defendant without prejudice. Tr. at 17-18. A plaintiff may file a motion with the Court for an enlargement of time to effect service or can move to appoint a special process server. Tr. at 18. The Court may grant such motions at its discretion. Tr. at 18. Respondent assigned the task of checking to see if service had been completed in his cases to his paralegals. Tr. at 42-43. During the time period at issue in this case, the paralegals did not follow up to confirm service of process on the defendants. Tr. 73-74. Respondent admitted that he did not properly follow up and did not properly supervise the non-lawyer staff to ensure that service had been completed. Tr. at 43.

         As a result of Respondent's failure to make reasonable efforts to locate the Defendants or to timely move for an enlargement of time, four (4) cases were dismissed by the Superior Court without prejudice. See Petition and Answer ¶ 6-27. The Superior Court found in those cases that Respondent failed to show due diligence in attempting to locate and serve the defendants. See Ex. 1-3 and Petition and Answer ¶ 11, 16, 21, and 26. On June 3, 2016, Judge Parkins wrote to ODC expressing his concerns over Respondent's conduct in failing to locate and serve a Defendant in one of the cases dismissed for failure to make reasonable efforts to locate the Defendants or to timely move for an enlargement of time. Ex. 4.

         In addition to the four cases noted above, there were thirteen (13) additional cases where Respondent failed to make reasonable efforts to locate and serve the Defendants or to timely file a motion for an enlargement of time which were not dismissed by the Superior Court. Tr. at 33-34 and Petition and Answer ¶ 28.

         Respondent was the managing partner of the Wilmington office of McCann & Wall, LLC Tr. 43-44. The books and records were physically maintained in the Philadelphia office, but there were escrow and operating accounts at Delaware banks. Tr. at 65. Respondent incorrectly assumed that the Delaware books and records were being maintained in accordance with the provision of Rule 1.15 A. Tr. at 48-49. Respondent did not receive any specific assurances from die Philadelphia office to that effect. Tr. at 66.

         An audit of Respondent's law office books and records for the six month period ending on September 30, 2016 was conducted by the Lawyer's Fund for Client Protection. Ex.7. The findings of the audit were that Respondent's books and records were not properly maintained by (a) incorrectly titling accounts, (b) failing to maintain and preserve a client subsidiary ledger for four of the six months reviewed, (c) failing to reconcile the end of the month's cash balances to the total of all client funds held for four of the six months, (d) in one month, failing to reconcile me end of the month cash balance with the total of all client funds held of $2,986.00; and (e) having checks or transfers in fiduciary accounts outstanding for longer than six months. Tr. 44-46. Respondent's 2015 and 2016 Certificates of Compliance contained misrepresentations as to the status of McCann & Wall's books and records. Tr. at 53. Respondent did not identify all attorney/trust accounts in Question 3.1 and responded yes to items 2.2,2.3,2,6,2.7,2.9 and 2.12 when he should have answered no. Tr. 50-53.

         During the sanctions phase of the hearing, respondent admitted that he was privately admonished by the Delaware Supreme Court in 2012 after filing a false preceptor's certification in connection with an applicant's admission to the Delaware bar. Tr. at 134-136. Respondent testified at the hearing that he was cooperative with the ODC's investigation and apologized to the Board and the Superior Court for his conduct in the present matter. Tr. at 127-128. Respondent further indicated that he has taken a number of corrective measures to address his issues with service of process and with maintaining his Firm's books and records. Tr. at 78-86 and 130-134. Respondent also offered the testimony of Rence Villano, a certified public accountant who indicated that she had been retained by Respondent's firm in June of 2017 to review the firm's books on a quarterly basis and to perform pre-certifications to ensure compliance with Rule 1.15. Tr, 120-123. Respondent also offered the testimony of Robert McCann, Esquire, Mark Reardon, Esquire and Yvonne Takvorian Saville, Esquire (via affidavit) regarding Respondent's good character and reputation. See Tr. at 110-112, Tr. 57-59 and Ex. 2.

         Standard of Proof

         The allegations of professional misconduct set forth in ODC's petition must be established by clear and convincing evidence. (Disc. Proc. Rule ...


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