Office of Disciplinary Counsel
THESE FAQ RESPONSES ARE INTENDED TO PROVIDE GENERAL, SUMMARY GUIDANCE AND ARE NOT A SUBSTITUTION FOR THE DELAWARE LAWYERS’ RULES OF PROFESSIONAL CONDUCT (THE “RULES”). LAWYERS, CLIENTS AND MEMBERS OF THE PUBLIC SHOULD CONSULT THE RULES, AS APPROPRIATE.
Q: What are the purposes of the disciplinary process?
A: The purposes of lawyer discipline are to protect clients and the public, to ensure the proper administration of justice, to preserve confidence in the legal profession, and to deter lawyers from ethical misconduct. Although attorney accountability is vital to the justice system, the purpose of lawyer discipline is not to punish lawyers.
Compliance with the Rules depends primarily on voluntary adherence by lawyers themselves. Peer support and formal disciplinary proceedings, when necessary, are the secondary and tertiary means, respectively, of obtaining compliance with the Rules.
Q: Do lawyers have an obligation to report to ODC the professional misconduct of other lawyers?
A: Yes, under certain circumstances. A lawyer who knows another lawyer has committed a violation of the Rules that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, should inform ODC. Rule 8.3(a).
Q: Do lawyers have an obligation to report themselves to ODC?
A: The self-reporting obligation is found in Rule 16(k) which provides: “Any lawyer subject to the disciplinary jurisdiction of the Court who is charged with or convicted of a felony, whether within or outside of this State, shall within 10 days of such charge or conviction report the matter to the ODC.”
Q: How do I obtain my disciplinary history?
A: In order to obtain your disciplinary history you must send a written request to the Office of Disciplinary Counsel. Please include your full name, Bar ID number and a return address where you would like the letter sent.
Q: How may I obtain disciplinary information regarding another lawyer?
A: Information regarding the public discipline of lawyers is accessible through the Digest of Lawyer Discipline available on the ODC’s website. Public discipline includes disbarment, suspension, interim suspension, public reprimand, and transfers to disability inactive status. Information regarding the private discipline of lawyers and disciplinary complaints that are dismissed is confidential.
Q: What are the respective roles of the Delaware Supreme Court and trial courts regarding lawyer misconduct?
A: The Delaware Supreme Court has the inherent and exclusive authority to discipline Delaware lawyers. “Absent misconduct which taints the proceeding, thereby obstructing the orderly administration of justice, there is no independent right of counsel to challenge another lawyer's alleged breach of the Rules outside of a disciplinary proceeding. Likewise, the trial courts have no jurisdiction to entertain such applications except as noted above. Nonetheless, trial courts retain their traditional powers, which are indeed potent, to address, rectify and punish conduct of a party or counsel which threatens the legitimacy of judicial proceedings. Nothing we say here is intended to limit or circumscribe such authority.” In re Infotechnology, 582 A.2d 215, 221-222 (Del. 1990).
Q: Is a lawyer required to return client files at the termination of the representation?
A: It depends upon the specific materials requested and other facts related to the representation. Generally, upon the termination of representation, a lawyer is required to take steps to the extent reasonably practicable to protect a client’s interests, such as surrendering papers and property to which the client is entitled. Rule 16(d). However, the lawyer may retain papers relating to the client to the extent permitted by other law. Id.
Q: How long is a lawyer required to keep files?
A: Case related financial books and records must be preserved for at least five years following the completion of the year to which they relate. Rule 1.15(d). Fiduciary books and records must be preserved for at least five years following the completion of the fiduciary obligation. Id.
Guidance on best practices for the retention of other types of case files may be available from the Delaware Bar Association and/or the American Bar Association.
Q: Do I have to have a separate trust account for my law practice?
A: Any funds a lawyer holds on behalf of a client or third party must be deposited into a trust or escrow account designated solely for funds held in connection with the practice of law in Delaware. Rule 1.15(a).
Q: Am I restricted in what banks I may have my trust accounts?
A: Yes. Lawyers must hold all trust or escrow funds in financial institutions that have been approved by the Lawyers Fund for Client Protection. Rule 1.15A(b). A list of approved financial institutions may be found on the Lawyer's Fund for Client Protection website.
Q: What is an Overdraft Notification?
A: The financial institutions approved by the Lawyers Fund for Client Protection have agreed to notify the Office of Disciplinary Counsel when any instrument is presented to the bank for which there are insufficient funds in the lawyer’s trust or escrow account, whether or not the instrument is honored. Rule 1.15A(d).
Q: If I apply for pro hac vice admission in Delaware, am I subject to the disciplinary jurisdiction of the Delaware Supreme Court?
A: Yes. An attorney who applies for pro hac vice admission consents to be bound by the Delaware Lawyers’ Rules of Professional Conduct and the exercise of disciplinary jurisdiction by the Delaware Supreme Court over any alleged misconduct which occurs during the case in which that attorney participates. Rule 8.5.
Q: Can I represent a client in Delaware without moving for pro hac admission?
A: Lawyers must comply with the pro hac vice rules for Delaware courts.
Rule 5.5 provides a limited safe harbor for the temporary practice of law in Delaware. A lawyer not admitted to practice in Delaware and not disbarred or suspended in another jurisdiction, may provide legal services on a temporary basis in Delaware if those services; (1) are in association with a Delaware lawyer; or (2) are related to a proceeding in Delaware in which the lawyer expects to be admitted pro hac vice; or (3) are related to an arbitration, mediation, or other alternative dispute resolution and does not require pro hac vice admission; or (4) are related to a lawyer’s practice in the jurisdiction in which the lawyer is admitted. Rule 5.5.
Q: Does Delaware have a Bona Fide Office Rule?
A: Certain Delaware courts’ procedural rules contain a bona fide office requirement. See, e.g., Supr. Ct. R. 12, Ct. Chan. R. 170(a), Super. Ct. Civ. R. 90(a), Super. Ct. Crim. R. 63, Ct. Com. Pl. Civ. R. 90, Fam. Ct. Civ. R. 90(a), Fam. Ct. Crim. R. 61, and J.P. Ct. Civ. R. 90. These individual rules, as well as relevant Delaware case precedent interpreting them, should be reviewed to determine their scope and applicability. For example, Supreme Court Rule 12 “Attorneys of record, withdrawal” provides: “(a) Appearance and signing of papers. Except in the case of a party appearing pro se, all papers filed with the Court shall be signed by an attorney who is an active member of the Bar or this Court and who maintains an office in Delaware for the practice of law...” Supr. Ct. R. 12(a). The remainder of subsection (a) and subsection (d), “Office for the practice of law,” explain the logistics required to qualify as a “bona fide office.” Supr. Ct. R. 12(a) and (d). See also In re Barakat, 99 A.3d 639 (Del. 2013).
Q: Can violating a bona fide office rule result in professional discipline?
A: Yes. Knowingly violating a court rule may be grounds for professional discipline under Rule 3.4(c).
Office of Disciplinary Counsel
The Renaissance Centre
405 North King Street, Suite 420
Wilmington, Delaware 19801
P: (302) 651-3931 | F: (302) 651-3939