Trees and Shrubs

The Delaware Supreme Court has disbarred an attorney

This lawyer disciplinary proceeding arises from Respondent Richard L. Abbott’s conduct in Seabreeze Homeowners Assoc. v. Jenney, C.A. No. 8635- VCG (Del. Ch.) (“Seabreeze Litigation”)—a dispute over the trimming of trees and shrubbery between a homeowners’ association and a property owner—as well as statements he made in filings related to this disciplinary proceeding. We cannot help but lament that a seemingly mundane lawsuit would escalate into a nasty feud and, in turn, prompt Abbott, an experienced litigator, to ignore fundamental ethical constraints, putting his privilege to practice law at risk. The genesis of this disciplinary action was advice Abbott gave to his client to help the client violate an order and bench rulings issued by the Court of Chancery. The advice and the documentation that effectuated it was followed by misrepresentations to the court as to the client’s status visà-vis the court’s order and rulings. And when the trial judge who had issued the order and rulings learned of Abbott’s dodgy stratagem and reported the matter to the Office of Disciplinary Counsel (“ODC”), Abbott’s conduct only got worse. Abbott eschewed a lawyerly defense of his questionable actions and, despite being previously disciplined for similar misconduct, unleashed a persistent flurry of false invective impugning the integrity of the trial judge, ODC, and eventually this Court.

Not surprisingly, Abbott’s conduct in the Seabreeze Litigation prompted ODC to open an investigation in 2015, which led to a petition for discipline in 2020. Through a variety of procedural maneuvers, Abbott succeeded in delaying ODC’s filing of the petition and the Board on Professional Responsibility’s consideration of the petition for years.

Violations and sanction

After our independent review of the Panel’s recommendations, we conclude that Abbott violated Rules 3.4(c), 3.5(d), 8.4(a), 8.4(c) and 8.4(d) of the DLRPC and that the appropriate sanction is disbarment.

The 85-page opinion lays out the history attacks on the underlying and disciplinary process and notes

On January 27, 2020, Abbott filed an action against all of the then current Justices, then-Chief Disciplinary Counsel, and Deputy Disciplinary Counsel in the United States District Court for the District of Delaware. Abbott asserted federal RICO and 42 U.S.C. § 1983 claims as well as state law claims based on the disciplinary proceeding. He also filed a motion for a temporary restraining order of the disciplinary proceedings, which the District Court denied. Abbott’s complaint and exhibits included allegations about the Vice Chancellor that were similar to the inappropriate attacks in Abbott’s filings with the Board and PIC. The District Court ultimately dismissed the federal action based on the Younger abstention doctrine. The United States Court of Appeals for the Third Circuit affirmed the District Court’s decision.

Later

On May 10, 2021, Abbott filed an action in the Court of Chancery against the Justices and ODC counsel. Abbott asserted claims similar to the claims he had asserted in his federal action. At the Court of Chancery’s request, the Chief Justice designated a Superior Court judge to sit as Vice Chancellor under Article IV, §13(2) of the Delaware Constitution. The Court of Chancery denied Abbott’s motions for a temporary restraining order and expedition, and ultimately dismissed Abbott’s complaint based on this Court’s exclusive authority in disciplinary proceedings. A panel of Justices designated under Article IV, §§ 12 and 38 of the Delaware Constitution affirmed the Court of Chancery’s decisions.

The court on sanction

The Panel did not address Abbott’s mental state, but we find that he intentionally and knowingly made the degrading statements. The record in the Seabreeze Litigation clearly demonstrates why the Vice Chancellor referred Abbott to ODC yet Abbott persistently—and baselessly—stated that the Vice Chancellor fabricated the record, the Vice Chancellor acted out of spite or mental disability, and this Court ignored ODC’s misconduct in pursuing the matter. He made these statements despite being publicly reprimanded in 2007 for making similarly improper statements.

And

Contrary to Abbott’s contentions, his actions in connection with the transfer of the Properties were dishonest. He assisted Jenney’s disobedience of his obligations under the Consent Order and March 3, 2015 Bench Rulings while still maintaining control of the Properties and misrepresented Jenney’s control over the Properties after the transfer to the Court. He made degrading statements and threatened to create a public spectacle with the selfish motive of pressuring ODC to drop this matter.

We reject Abbott’s objection that his degrading statements about the Vice Chancellor and this Court between 2016 and 2019 did not constitute a pattern of misconduct. We also reject Abbott’s contention that his offenses were not multiplicitous because he did not violate any of the DLRPC. As previously discussed, Abbott did violate the DLRPC in connection with both the transfer of the Properties and the degrading statements.

Whether Abbott’s filing of multiple motions for recusal of Board Chairs and the Panel Chair and service of repetitive subpoenas constitute bad faith obstruction of the disciplinary proceeding is a close question, but ultimately we cannot find that Abbott violated the DLRDP or orders of the Board in this respect. Nor does the aggravating factor relating to deceptive practices apply here. Although Abbott argues that ODC engaged in deceptive practices, this is based on his incorrect position that there was no basis for the disciplinary proceedings.

And it is beyond dispute that Abbott refuses to acknowledge the wrongful nature of the conduct. Indeed, Abbott still insists, despite all evidence to the contrary, that his legal work for Jenney was “Good Lawyering.” He also continues to make spurious and unfounded statements about the Vice Chancellor, ODC counsel, and the Panel Chair. Abbott objects that this factor should receive little weight because he is entitled to defend himself, but he could have defended himself without hurling unfounded accusations of corruption and mental illness. As the Court previously warned him, zealous advocacy does not encompass degrading or disrespectful language. Finally, Abbott’s substantial experience in the practice of law—twenty-five years of experience as a Delaware lawyer when he was referred to ODC in 2015—is an aggravating factor.

As to the mitigating factors, Abbott cannot rely on the absence of a prior disciplinary record because he was publicly reprimanded for making statements degrading to a tribunal in 2007. Nor was there the absence of a dishonest or selfish motive. As to personal or emotional problems as a mitigating factor, Abbott objects that the Panel ignored his testimony and his wife’s testimony concerning psychological trauma he has suffered as a result of ODC bringing and pursuing these proceedings. We disagree. The Panel correctly recognized that this alleged trauma did not contribute to Abbott’s sanctionable misconduct. This objection also rests upon the faulty premise that everyone but Abbott himself is responsible for what has transpired since his actions in the Seabreeze Litigation.

Timely restitution is not relevant here and thus cannot be counted as a mitigating factor. And Abbott has not attempted to rectify the consequences of his misconduct. Again, Abbott has been uncooperative throughout the proceedings and has continued to make degrading statements. Thus, the mitigating factor relating to a lawyer’s cooperative attitude has no application here. Abbott objects that he was entitled to defend himself and pursue independent litigation to protect his rights, but fails to acknowledge that it was unnecessary for him to degrade others and waste Board resources with repetitive motions while doing so.

(Mike Frisch)