President's Corner

by Charles S. McDowell, Esquire

Last month I had the pleasure of attending the Mid-Winter meeting of the National Conference of Bar Presidents in San Antonio. These semi-annual meetings provide a great opportunity to discuss issues of common concern with other Bar officials from around the country. As I have attended these meetings during the last couple of years I have gotten many good ideas for dealing with issues that we face here in Delaware, for example, funding legal services for the indigent, improving bench/bar relations, improving lawyers’ public image and serving the needs of a diverse membership.

One lasting impression from these conferences is how many lawyers spend so much time and energy trying to improve our Bar, our system of justice and, by extension, our communities. Learning about these many projects undertaken by lawyers around the country makes me reflect on the exceptional pro bono efforts of many Delaware lawyers, some of which are probably not that familiar to you.

One such example of pro bono service which I think is greatly underappreciated is the thankless task of serving as a receiver for a suspended or disbarred attorney. Whenever a lawyer is disbarred, a member of the Delaware Bar is appointed to maintain or wind up the disciplined lawyer’s practice. Oftentimes, the practice is a puzzle of incomplete or inaccurate client files and bank records offering no organization to guide or direct the winding up process. In some cases, there isn’t a list of active files. In other cases, a receiver finds an office in disarray with piles of paper that need to be assembled into files, or there may be a need to review many years of client files. As a point of reference, just think how difficult it sometimes is for you to cover a single matter for a lawyer in your office who is on vacation.

Pursuant to Rule 24 of the Delaware Lawyers’ Rules of Disciplinary Procedure, when a lawyer is disabled, has died or has been suspended or disbarred and no other responsible party can carry out the lawyer’s affairs, a receiver is appointed to wind up the lawyer’s law practice. The Office of Disciplinary Counsel files an application for appointment of a receiver in the Court of Chancery. The appointed receiver must of course have the technical expertise and experience to handle the disciplined lawyer’s practice. Because of the time consuming nature of a receivership, a receiver is very often a member of a larger firm that has the resources to support the receiver’s time away from his or her own practice and to provide the support staff needed during the winding up process. But this is not always the case. Sometimes a receiver comes from a smaller firm where it can be a real strain on resources to properly meet the requirements of the receivership.

The receiver must first take control of any operating and escrow bank accounts, collect funds due and pay bills. Active files must be serviced and inactive files stored; telephone and mail service must be forwarded to the receiver. Clients (many confused and angry), opposing counsel, tribunals handling active matters, malpractice insurance carriers and, if applicable, title insurance carriers, must be contacted and dealt with. In addition, the receiver must file periodic accounting reports to the Court of Chancery and ODC about the status of the receivership.

Receivership appointments can last for many years. One receiver recently estimated that he spent over 800 uncompensated hours in one year on a receivership. Under any circumstances, this is the finest example of public service at its most quiet level. It should be known by our entire membership the amount of time these receivers expend to ensure that client interests as well as the reputation of the legal profession are protected.

A related pro bono activity for Delaware lawyers is the Lawyers’ Fund for Client Protection. An arm of the Delaware Supreme Court, the Fund provides reimbursement to those clients where a lawyer has wrongfully taken client money or property. The Fund is funded by the yearly assessments we pay each year as part of our annual registration process.

Aggrieved clients file a claim stating the wrongful taking. The Fund’s Board of Trustees reviews the claims and determines eligibility for reimbursement. If a claim is eligible for reimbursement, the claim is investigated and the Trustees determine the amount of reimbursement. Any client filing an ineligible claim is notified as to the reason for a denial. For example, clients claiming legal malpractice are referred to the malpractice carrier, if there is one, of the disciplined lawyer. The Fund does not have the authority to resolve disputes or determine whether there has been legal malpractice.

Seven members of the Delaware Bar along with two non-lawyers serve as the Trustees of the Fund. They dedicate many uncompensated hours reviewing claims and referring aggrieved clients to other resources.

Service as a receiver and as a Trustee of the Lawyers’ Fund for Client Protection are just two examples of the many pro bono activities of Delaware lawyers which benefit all members of our Bar and for which we should all be grateful.

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Charlie is a partner with Potter Anderson & Corroon LLP and he can be reached at (302) 984-6012 or cmcdowell@potteranderson.com

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