Rule 1. Board on the Unauthorized Practice of Law.
(a) Powers and duties. -- In addition to the powers set forth in Supreme Court
Rule 86, the Board shall have the power to institute actions in its name in any
court of competent jurisdiction, and to take such other and further action, as
the Board deems prudent and necessary to fulfill its duties and
(b) Advisory opinions. -- The Board shall not render advisory opinions on the
unauthorized practice of law.
(c) Chair and officers. -- The Chair and officers of the Board shall be as
designated by the Supreme Court. The Chair shall have the authority to take all
necessary or appropriate actions to carry out the duties of the Chair as
specified in these Rules. If the Chair is absent or disqualified, the
Vice-Chair shall serve temporarily as necessary with the same authority as the
Chair. Whenever a committee or hearing panel of the Board has been appointed
with respect to a particular matter, every reference in these Rules to "the
Board" shall refer to such committee or hearing panel.
(d) Associate members. -- The Board may by resolution delegate to associate
members of the Board appointed by the Supreme Court such duties and functions
as the Board may prescribe, provided, however, that associate members shall not
have the power to vote on any determination or decision of the Board.
Rule 2. Abstention of Board members.
Members shall refrain from taking part in any proceeding in which a judge,
similarly situated, would be required to abstain and shall for the purposes of
such proceeding only, be considered "disqualified."
Rule 3. Meetings, quorum, and operations.
(a) Meetings. -- The Board shall meet upon call of its Chair, or in the
absence or disqualification of the Chair any two members of the Board, or upon
call of the Supreme Court, at such place and time as may be specified in the
(1) The number of petitions filed with the Board during the previous year.
(b) Quorum for hearings and meetings. -- Hearings before the Board in formal
proceedings under these Rules shall be held before hearing panels consisting of
at least three members of the Board, as appointed pursuant to rule 3(d).
Hearing panels consisting of more than three members of the Board may be
appointed if the Chair considers a larger panel appropriate. With respect to
meetings of the Board other than hearings in formal proceedings, a majority of
the members of the Board not disqualified, but no fewer than three, shall
constitute a quorum.
(c) Ad hoc members. -- If, in any given proceeding, the number of the Board
members not disqualified is less than a quorum, the Supreme Court may appoint,
for that proceeding only, the number of ad hoc members (which may include
associate members) necessary to establish a quorum. Each ad hoc Board for the
purposes of that proceeding only.
(d) Hearing panels and committees. -- Following the commencement of formal
proceedings before the Board pursuant to Rule 6(b), the Chair shall appoint a
hearing panel consisting of members of the Board, and shall designate one such
member as the chair of the hearing panel. The Chair shall not serve as a member
of a hearing panel unless no other member of the Board is available. At least
one member of each hearing panel shall be a non-attorney member of the Board.
Prior to the appointment of a hearing panel in a formal proceeding, the Chair
shall consider and determine all procedural, evidentiary, and administrative
issues relating to the proceeding; after such appointment but prior to a
hearing, the chair of the hearing panel shall consider and determine all such
issues, except as otherwise stated in these Rules. Upon the commencement of a
hearing in a formal proceeding, the making of any subsequent ruling,
disposition, order, or final report by the hearing panel shall require a
majority vote of its panelists. The Chair may appoint committees or panels of
the Board other than for hearing purposes with such composition and powers as
the Chair shall designate.
(e) Telephonic meetings. -- Except in respect of a hearing in any formal
proceeding, the Board, or any of the members thereof, may participate in any
meeting of the Board, or a committee or panel thereof, by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a
meeting pursuant to this subsection shall constitute presence in person at the
(f) Compensation and expenses. -- Members and associate members shall receive
no compensation for their services but may be reimbursed for travel and other
expenses incidental to the performance of their duties. The expenses of the
Board shall be paid by the Board in accordance with a policy adopted by the
Board. Unless otherwise instructed by the Board, Disciplinary Counsel is
authorized to expend such funds as may be necessary for Disciplinary Counsel to
carry out the duties and obligations imposed by Supreme Court Rule 86, these
Rules and the Board.
(g) Administration of system. -- To maintain the efficient operation of the
regulatory system contained in these Rules, the Board Administrator shall
assist the Chair in establishing policies and procedures for the processing and
disposition of all unauthorized practice matters, including without limitation
the assignment of hearing panels, the scheduling of hearings, and the filing,
docketing, and maintenance of pleadings and other papers constituting the
official record in individual unauthorized practice cases. The Board
Administrator shall be an ex officio member of the Board with respect to any of
its administrative functions, and the Chair or the Board may delegate to the
Board Administrator such administrative duties as each may decide appropriate.
The Board Administrator shall also have such administrative powers and duties
as are authorized by the Court.
The Supreme Court may designate a person on its staff to serve as Board
(h) Reports. -- On or before January 31st, the Chair shall file a report with
the Supreme Court advising the Court of the following:
(2) The number of Board hearings conducted by panels during the previous year.
(3) The number of Board recommendations filed with the Court during the
(4) The number of matters resolved through the Rule 14 Affidavit of Voluntary
Compliance procedure during the previous year.
(5) The number and status of matters pending before the Board as of the date of
the Chair's report.
Rule 4. Intake of complaints.
(a) Complaints. -- All information, whether received by complaint or
otherwise, regarding a possible occurrence of the unauthorized practice of law
in the State of Delaware shall initially be processed by the Office of
Disciplinary Counsel, which shall act as the intake agency for the receipt of
all such information. Complaints should be in writing. Upon receipt of any such
information, Disciplinary Counsel shall open an appropriate file and assign the
matter a docket number. Neither unwillingness nor neglect of the complainant to
press a complaint once made, nor settlement, nor compromise between the
complainant and any respondent, nor restitution by the respondent shall, in
itself, justify abatement of the processing of any complaint.
(b) Evaluation and summary dismissal. -- Upon the receipt and docketing of a
complaint or other information regarding a possible occurrence of the
unauthorized practice of law in the State of Delaware, Disciplinary Counsel
shall conduct an evaluation of the matter. If the complaint or information on
its face does not indicate an occurrence of the unauthorized practice of law in
the State of Delaware, Disciplinary Counsel shall summarily dismiss the matter
without prejudice and close the file with written notice to the complainant.
(c) Criteria for evaluation. -- In evaluating any information involving the
possible unauthorized practice of law in the State of Delaware, Disciplinary
Counsel shall initially determine whether the person which is the subject of
such information is otherwise authorized to practice law in the State of
Delaware. If not, Disciplinary Counsel shall then determine whether such person
has possibly engaged in any of the following types of conduct: (i) giving legal
advice on matters relating to Delaware law, (ii) drafting legal documents or
pleadings for a person or entity (other than one's self) reflecting upon
Delaware law, for use in a Delaware legal tribunal or governmental agency,
unless the drafting of such documents or pleadings has been supervised by a
person authorized to practice law in the State of Delaware, (iii) appearing as
legal counsel for, or otherwise representing, a person or entity (other than
one's self) in a Delaware legal tribunal or governmental agency, (iv) holding
one's self out as being authorized to practice law in the State of Delaware,
(v) engaging in an activity which has traditionally been performed exclusively
by persons authorized to practice law, and (vi) engaging in any other act which
may indicate an occurrence of the unauthorized practice of law in the State of
Delaware as established by case law, statute, ruling, or other authority. The
foregoing description of types of conduct are to be used as general guidelines
for evaluation by Disciplinary Counsel, and not as definitions of the
unauthorized practice of law.
Rule 5. Investigations.
(a) Investigation by Disciplinary Counsel. -- If the evaluation of a matter by
Disciplinary Counsel does not result in summary dismissal under Rule 4(b),
Disciplinary Counsel shall proceed to initiate an investigation of the matter,
with written notice to the Chair and the complainant.
(b) Subpoenas. -- Following the designation of a matter as an investigation
under Rule 5(a), Disciplinary Counsel may administer oaths and affirmations and
may compel by subpoena the attendance of witnesses and the production of
relevant books, papers, and documents. Subpoenas shall be issued under the
signature of Disciplinary Counsel and served by any means deemed appropriate.
(c) Dismissal after investigation. -- Following an investigation, Disciplinary
Counsel may dismiss the matter without prejudice and close the file with
written notice to the complainant. When an investigation has revealed that
there is insufficient evidence of conduct involving an occurrence of the
unauthorized practice of law in the State of Delaware to prosecute the matter
further, the matter shall be dismissed.
Rule 6. Formal proceedings.
(a) Approval of petition by Chair. -- Following an investigation, if
Disciplinary Counsel determines that there is sufficient evidence of conduct
involving an occurrence of the unauthorized practice of law in the State of
Delaware to warrant further prosecution, Disciplinary Counsel shall draft a
petition seeking appropriate relief directed to the Board. The petition shall
be sufficiently clear and specific to inform the respondent of the alleged
unauthorized practice of law, and shall contain a notice that the respondent's
failure to file a response with the Board in a timely manner will result in the
allegations and charges contained therein being deemed as conclusively
established. Disciplinary Counsel shall submit the draft petition to the Chair
for review, and no petition may be filed by Disciplinary Counsel without the
prior approval of the Chair.
(b) Commencement of formal proceedings. -- Following approval of a petition by
the Chair, Disciplinary Counsel shall sign and file the petition with the
Board, and shall serve the petition upon the respondent pursuant to these
Rules. The respondent shall file an answer with the Board within 20 days of
service of the petition, with service of same upon Disciplinary Counsel. In the
event the respondent fails to answer in a timely manner, all factual
allegations contained therein shall be deemed as conclusively established.
Rule 7. Service of petition and other papers; filing.
(a) Service. -- Service of the petition upon the respondent shall be made in
the manner provided for service of a civil complaint under the Rules of Civil
Procedure for the Superior Court and may be made by any person authorized by
the Board to make such service.
All papers subsequent to the petition which are filed with the Board shall be
served upon each party to the proceeding. Service upon a party represented by
an attorney shall be made by serving the attorney unless service upon the party
personally is ordered by the Board. Service upon the attorney or upon a party
shall be made by delivering a copy to the attorney or party or by mailing it to
the attorney or party at the attorney's or party's last known address or, if no
address is known, by leaving it with the Board Administrator.
Delivery of a copy within this Rule means: Handing it to the attorney or to the
party; or leaving it at the attorney's or party's office with a clerk or other
person in charge thereof; or, if there is no one in charge, leaving it in a
conspicuous place therein; or if the office is closed or the person to be
served has no office, leaving it at the person's dwelling house or usual place
of abode with some person of suitable age and discretion then residing therein.
Service by mail is complete upon mailing.
(b) Filing requirement and manner of filing. -- A petition to the Board and all
other pleadings relating to a matter before the Board shall be filed with and
maintained by the Board pursuant to the administrative procedures established
by the Chair and the Board Administrator. The filing of any such paper with the
Board shall be made by delivering one original and three copies of such
document to the Board Administrator. All such documents shall thereupon be
date-stamped by the Board Administrator as "filed" with the Board. The original
copy of all such filings shall be retained by the Board Administrator as the
official record of the Board in the matter.
Rule 8. Subpoenas and discovery.
(a) Oaths and affirmations. -- Any member of the Board who is authorized by
law to do so may administer oaths and affirmations in matters before the Board.
(1) For the hearing, Disciplinary Counsel may compel by subpoena the attendance
of such witnesses (including the respondent) and the production of such books,
papers and documents as are relevant to the issues that are the subject matter
of the hearing.
(2) After formal proceedings are instituted and at the written request of the
respondent, the Secretary of the Board, or the designee of the Chair in the
Secretary's absence, shall compel by subpoena the attendance of such witnesses
and the production of such books, papers and documents at the hearing as are
relevant to the issues that are the subject matter of the hearing.
(c) Challenges to subpoenas. -- Any attack on the validity of a subpoena so
issued shall be heard and determined by the Board, or by a court in the
jurisdiction wherein enforcement of the subpoena is being sought.
(d) Enforcement of subpoenas. -- The Supreme Court may, upon proper
application, enforce the attendance and testimony of any witnesses and the
production of any documents subpoenaed.
(e) Depositions. -- With the approval of the Board, testimony may be taken by
deposition or by commission if the witness is not subject to service of
subpoena or is unable to attend or testify at the hearing because of age,
illness, absence from the State or other compelling reason. A complete record
of the testimony so taken shall be made and preserved.
(f) Witness fees. -- Subpoena and witness fees and mileage shall be the same as
those provided for proceedings in the Delaware Superior Court.
(g) Discovery disputes. -- Disputes concerning the scope and other aspects of
discovery shall be determined by the Board. All discovery orders by the Board
are interlocutory and may not be appealed.
Rule 9. Hearings.
(a) Notice of hearing. -- If a panel determines there are material issues of
fact raised by the pleadings or if any party requests the opportunity to be
heard, the Board Administrator shall serve notice of a hearing upon
Disciplinary Counsel and the respondent, stating the date and place of the
hearing at least 20 days in advance thereof. The notice of hearing shall advise
the respondent that the respondent is entitled to be represented by a lawyer,
to cross-examine witnesses and to present evidence in the respondent's own
behalf. Briefs, argument or other submissions may be permitted in the
discretion of the Board.
(b) Pre-hearing conference. -- Upon the application of any party or on its own
motion the Board may order a conference to be held for the purpose of obtaining
admissions or otherwise narrowing the issues presented by the pleadings. The
conference shall be held before the chair of the hearing panel assigned to the
matter, or before the chair's designee.
(c) Stenographic record. -- A stenographic record shall be made of the hearing.
The record of the hearing shall be made available to the respondent at the
respondent's expense upon the respondent's request.
(d) Findings. -- Following a hearing, the Board shall express its findings of
fact, conclusions of law, and recommended disposition in a final report which
is sufficiently specific for the purposes of review by the Supreme Court. A
copy of the report shall be served upon the parties.
(e) Supreme Court review. -- The Board's final report shall be filed with the
Supreme Court together with the record of its proceedings, including
transcripts, briefs, and other pleadings, within 90 days of the date upon which
the matter was finally submitted to the Board. The Board shall promptly serve
notice of such filing to the parties. Within 20 days of the receipt of such
notice, any party may file objections to the Board's report with the Supreme
Court. Such objections may not exceed five (5) pages in length. If objections
are filed, the Court may then treat the matter pursuant to its rules governing
civil appeals, designating the appropriate party as the appellant, and
scheduling the matter for briefing and argument. If no objections are timely
filed, the report of the Board shall be approved by order of the Court as the
final disposition of the matter unless the Court orders otherwise within 30
days of the last date for filing objections. The final disposition of a matter
by the Court shall be enforceable in the Court through contempt proceedings.
Rule 10. Witnesses and evidence.
All witnesses shall be sworn or shall give proper affirmation in all
proceedings hereunder. The Delaware Uniform Rules of Evidence shall be followed
as far as practicable, provided that evidence may be admitted and considered
which possesses probative value commonly accepted by reasonably prudent persons
in the conduct of their affairs. Where the respondent is or has been a party to
a proceeding, whether criminal, civil, administrative or otherwise, the
relevant portions of the transcript of the proceedings, exhibits, findings of
fact, conclusions of law, opinions, decisions and judgments, shall be admitted
in evidence and shall be accorded such weight as the Board shall deem
appropriate; provided, however, that proof of a conviction of the respondent
for any crime shall be conclusive evidence of the commission of that crime.
Rule 11. Burden of proof.
The burden of proving action constituting the unauthorized practice of law
shall be upon Disciplinary Counsel and shall be by clear and convincing
Rule 12. Related litigation.
Whenever in the course of an investigation or formal proceeding the Board
ascertains that there is in process civil litigation to which the person under
investigation or the respondent is a party, or a criminal action in which such
person or respondent is, or becomes, a defendant, either of which involves the
subject matter of the investigation or formal proceeding, the Board may upon
application or on its own motion direct that the investigation or formal
proceeding be stayed for a period not to exceed 90 days, and upon such terms as
the Board may deem desirable because of the pending litigation. Upon
application or on the Board's own motion, any stay so granted which has expired
or is about to expire may be renewed from time to time for periods not to
exceed 90 days. The Board may, upon application or on its own motion, at any
time, revoke or modify such stay. In determining whether and upon what terms a
stay should be granted, denied, revoked or extended the Board shall consider
all relevant factors, including the following: (1) the need for disposing of
the matter at the earliest practicable time, (2) the extent to which the issues
in the pending litigation are the same or substantially the same as those
before it, (3) the extent to which the matter under investigation or subject to
the formal proceedings would probably be delayed by awaiting the disposition of
the pending civil litigation or criminal action, (4) the extent to which the
matter under investigation or subject to the formal proceedings would probably
be expedited by awaiting the plea or judgment in the criminal action, (5) the
extent to which the matter under investigation or subject to the formal
proceedings would be aided, as to the determination of a material issue, by
awaiting evidence to be adduced in the pending litigation, (6) the extent to
which evidence may be unavailable to the investigation or formal proceeding
because of any delay occasioned by withholding further action, (7) the extent
to which witnesses or documents may be unavailable to the investigation or
formal proceedings because of concurrent discovery or trial proceedings in the
pending litigation, and (8) the extent to which the person under investigation
or the respondent or any party to the pending litigation may be prejudiced in
the pending litigation by withholding or failing to withhold further action.
The acquittal of the person under investigation or the respondent on criminal
charges or a verdict or judgment in favor of the person under investigation or
the respondent in civil litigation involving substantially similar material
allegations shall not, in and of itself, abate the investigation or formal
proceedings even though predicated upon the same material allegations.
Rule 13. Rulings, orders, and reports.
The Board shall have power to make such rulings, dispositions, orders,
recommendations, and reports as may be permitted under Supreme Court Rule 86
and these Rules. Any such action which is reduced to writing shall be signed by
an appropriate member of the Board.
Rule 14. Voluntary compliance.
At any time after a matter is initially docketed by the Office of Disciplinary
Counsel, the respondent may voluntarily offer an assurance that the respondent
shall not engage in the unauthorized practice of law in the State of Delaware.
Any such voluntary assurance must be in writing and duly sworn, and must be
approved in writing by the Disciplinary Counsel and either (a) the Chair, if no
panel of the Board has yet been assigned to the matter, or (b) the Board, if a
panel thereof has been assigned to the matter. Upon such approval, the
voluntary assurance shall be filed by Disciplinary Counsel in the Supreme Court
with a petition for the Court's approval briefly describing the facts of the
matter and a form of order. The Supreme Court's entry of an order approving the
voluntary assurance shall be enforceable in the Court through contempt
Rule 15. Notice to complainant.
Disciplinary Counsel shall promptly notify the complainant, if any, as to the
final disposition of each complaint after the matter is concluded.
Rule 16. Costs.
Unless otherwise ordered by the Supreme Court or the Board, costs of all
proceedings, including the costs of investigation, service of process, witness
fees and court reporting services, shall be assessed against the respondent in
any case where the Court makes a final determination that the respondent has
engaged in the unauthorized practice of law.
III. ENFORCEMENT PROCEEDINGS.
Rule 17. Rulings of the Board.
Except for the findings and other dispositions contained in the Board's final
report pursuant to rule 9(d), all rulings of the Board shall be considered
interlocutory and shall not be subject to interlocutory review by the Supreme
Rule 18. Objections.
Objections to the findings of the Board following a hearing may be filed with
the Supreme Court in the manner described in Rule 9(e). The pendency of the
Supreme Court's review of the Board's findings pursuant to Rule 9(e) shall
operate as a stay of such findings until final disposition by the Court.
Rule 19. Enforcement proceedings.
Whenever it shall come to the attention of the Disciplinary Counsel that a
respondent is or may be in violation of an order of the Court, Disciplinary
Counsel shall initiate an investigation of the matter. If after investigation
Disciplinary Counsel determines that the respondent is not in violation,
Disciplinary Counsel shall dismiss the matter without prejudice subject to the
approval of the Chair, and close the file with written notice to the
appropriate parties. If after investigation Disciplinary Counsel concludes that
the matter should not be dismissed, Disciplinary Counsel shall draft a petition
to the Court for a rule to show cause why the respondent should not be found in
contempt. Disciplinary Counsel shall submit the draft petition to the Chair for
review, and no such petition may be filed by Disciplinary Counsel without the
prior approval of the Chair.
Following approval of such petition by the Chair, Disciplinary Counsel shall
file the petition with the Court, and shall serve the petition upon the
respondent in the same manner as a petition which is initially filed with the
Board. The respondent shall file an answer with the Court within 20 days of
service of the petition, with service of same upon Disciplinary Counsel. In the
event that the respondent fails to answer the petition in a timely manner, or
otherwise does not dispute the petition, all allegations and charges contained
therein shall be deemed as conclusively established, and the Court may
thereupon enter an appropriate order of enforcement. If the respondent answers
the petition in a timely manner and disputes the allegations and charges
contained therein, the Court may thereupon treat the matter as it would any
contempt proceeding. The Court may direct that the Board conduct an evidentiary
hearing with respect to the petition and submit a report with its findings and
recommendations to the Court on the issue of contempt.
IV. MISCELLANEOUS PROVISIONS.
Rule 20. Immunity.
(a) From civil suit. -- Communications to any member of the Board or
Disciplinary Counsel relating to the alleged unauthorized practice of law and
testimony given in the proceedings shall be absolutely privileged, and no civil
lawsuit may be instituted against any complainant or witness based on such
communications or testimony. All persons performing official duties under these
Rules, including but not limited to members of the Board and associate members
of the Board, the agents, employees or other persons working on behalf of the
Board, Disciplinary Counsel and staff, and the Board Administrator, shall be
immune from civil suit for any conduct in the course of their official duties.
(b) From criminal prosecution. -- Upon application by Disciplinary Counsel or
the respondent and notice to the Attorney General, the Supreme Court may grant
immunity from criminal prosecution to a witness in any proceedings under these
Rule 21. Confidentiality.
(a) Complaints, investigations, and hearings. -- In connection with a
particular matter being considered by the Court, the Board, or Disciplinary
Counsel, all information and proceedings are confidential, except that the
following shall be considered as public:
(1) the fact that a matter is being evaluated or investigated by Disciplinary
(2) the identity of a person being evaluated or investigated by Disciplinary
(3) the general subject matter, pendency, and status of a matter being
evaluated or investigated by Disciplinary Counsel,
(4) the official record in a matter as filed with the Board pursuant to Rule
(5) hearings in particular matters before the Board,
(6) the rulings, orders, dispositions, and reports of the Board in particular
(7) the record and proceedings in particular matters which are reviewed by the
(b) Protective orders. -- In order to protect the
interests of complainants, witnesses, third parties or respondents, the Board
may, upon application and for good cause shown, issue a protective order
prohibiting the disclosure of specific information and direct that the
proceedings be conducted so as to implement the order.
(c) Duty of participants. -- All participants in a proceeding under these rules
shall conduct themselves so as to maintain the confidentiality mandated by any
(d) Cooperation with criminal justice authorities. Any evidence or information obtained pursuant to these Rules indicating criminal conduct, including documents, transcripts, and work product, or any selected portions thereof, may be disclosed or turned over to the appropriate criminal justice authorities for their independent review and investigation.
Rule 22. Nature of proceedings.
Proceedings concerning the unauthorized practice of law are neither civil nor
criminal but are sui generis.
Rule 23. Time.
(a) Computation of time. -- In computing any period of time prescribed or
allowed by these Rules, the provisions of Supreme Court Rule 11(a), as amended
from time to time, shall control.
(b) Effect of time limitations. -- Except as is otherwise provided in these
Rules, time provisions stated in these Rules are directory and not
jurisdictional. Failure to observe prescribed time intervals may result in
sanctions against the violator but does not justify abatement of any
investigation or proceeding.
Rule 24. Limitations on actions.
An occurrence or course of conduct involving the possible unauthorized
practice of law which concluded prior to three years of the receipt of
information of such activity by the Office of Disciplinary Counsel may be
evaluated or investigated by Disciplinary Counsel for the purposes of
verification, but shall not otherwise become the subject of formal proceedings
before the Board pursuant to Rule 6(b).
Rule 25. Complaints against non-lawyer members or associate
Complaints against non-lawyer members or non-lawyer associate members of the
Board alleging the unauthorized practice of law shall be submitted directly to
the Supreme Court.
Rule 26. Permanent file of opinions.
All written opinions issued by the Board shall be public unless otherwise
provided in accordance with Rule 21 and shall be maintained by the Board
Administrator in a permanent file of opinions.
Rule 27. Disciplinary Counsel.
As used in these rules, "Disciplinary Counsel" shall mean disciplinary counsel
as defined by Supreme Court Rule 64, or as the case may be, the Office of
Rule 28. Effective date.
These rules shall become effective on May 1, 1997, and any investigation or
other proceeding relative to the unauthorized practice of law pending on that
date shall be processed pursuant to these rules from that point on unless the
Supreme Court shall otherwise order to avoid substantial injustice.