Delaware Bar Association May Not Sanction a Lawyer for Conduct Not Related to Practice of Law
Ponytail Pull No Ethics Violation
The Delaware Supreme Court has ordered that a bar discipline matter be closed, concluding that the attorney’s conviction for Offensive Touching “bears no relationship to Respondent’s fitness to practice law.”
The conviction involved a domestic incident in public during which [the attorney] grabbed his minor daughter by her ponytail, held her head at an angle, and refused to let go. Respondent took that action to prevent his troubled, minor daughter from again attempting to run away from home, in the context of an intensely stressful family situation.
The Office of Disciplinary Counsel (“ODC”) objected to the Board on Professional Responsibility’s report finding no violation.
ODC contended that every criminal conviction violates Rule 8.4(b).
The court here sharply rejected that contention: “This case, by its nature and in these specific circumstances, should not have warranted intervention by the ODC.”
The court used the name “Eric Michaels” rather than the attorney’s true name.(Mike Frisch)
The Supreme Court of Delaware ruled:
NOW, THEREFORE, IT IS ORDERED that the Report filed by the Board
on Professional Responsibility on March 18, 2013 is hereby APPROVED, and the
Petition for Discipline is DENIED;
1. In its Petition for Discipline, the ODC alleged that in February 2012,
Respondent was involved in a domestic incident in public during which he grabbed
his minor daughter by her ponytail, held her head at an angle, and refused to let her
go.3 Respondent took that action to prevent his troubled, minor daughter from
again attempting to run away from home, in the context of an intensely stressful
family situation. For that conduct, the Respondent was convicted of Offensive
Touching, which is an unclassified misdemeanor, in the Family Court. This case,
by its nature and in these specific circumstances, should not have warranted
intervention by the ODC.
2. The ODC nonetheless charged the Respondent with having violated
Rules 8.4(b) and 8.4(d) of the Delaware Lawyers’ Rules of Professional Conduct
(the “Rules”). Rule 8.4(b) states that “[i]t is professional misconduct for a lawyer
to . . . commit a criminal act that reflects adversely on the lawyer’s honesty,
3 Because he suffered a traumatic injury from falling off of a roof, Respondent requested the
ODC to delay presenting its Petition for Discipline to the Preliminary Review Committee
(“PRC”), to afford Respondent sufficient time to prepare for the PRC meeting. The ODC denied
Respondent’s request. The PRC then approved the ODC’s Petition and offered Respondent a
private admonition, which he declined. Although these background facts do not influence our
disposition of this matter, we are troubled that the ODC would refuse Respondent’s reasonable
request to delay the PRC meeting. The record does not disclose the ODC’s reasons for refusing
the Respondent’s request.
trustworthiness or fitness as a lawyer in other respects.” Rule 8.4(d) provides that
“[i]t is professional misconduct for a lawyer to . . . engage in conduct that is
prejudicial to the administration of justice.”
3. A hearing panel of the Board found unanimously that the ODC had
not met its burden of establishing, by clear and convincing evidence, that
Respondent had violated either Rule. In its Report, the Board found “no principled
basis—let alone clear and convincing evidence—to support the conclusion” that
Respondent had violated Rule 8.4(b). The Board further found, “for the same
reasons,” that Respondent had not violated Rule 8.4(d). Consequently, the Board
recommended that the Petition be denied.
4. The ODC objected to the Board’s Report on the basis that every
criminal conviction must necessarily violate Rule 8.4(b). Because Respondent was
convicted of Offensive Touching, he therefore violated Rule 8.4(b). In his
response to the ODC’s Objections, Respondent disputes that claim.
5. This Court has the “exclusive authority for disciplining members of
the Delaware Bar.”4 It has “an obligation to review the record” and
4 In re Katz, 981 A.2d 1133, 1149 (Del. 2009).
It has “an obligation to review the record” and
4 In re Katz, 981 A.2d 1133, 1149 (Del. 2009).
“independently” determine “whether there is substantial evidence to support the
Board’s factual findings.”5 The Board’s conclusions of law are reviewed de novo.6
6. The ODC’s interpretation of the scope of Rule 8.4(b) is overbroad.
By its very language, Rule 8.4(b) implicates only criminal conduct that reflects
adversely on a lawyer’s fitness to practice law. We have found no case, in
Delaware or any other jurisdiction, where Offensive Touching, under factual
circumstances such as those involved here, has led to professional discipline.
7. Title 11, Section 601 of the Delaware Code defines Offensive
Touching, in relevant part, as:
Intentionally touch[ing] another person either with a member of his or
her body or with any instrument, knowing that the person is thereby
likely to cause offense or alarm to such other person . . . .7
Offensive Touching is neither an inherently violent nor sexual offense. Although it
is a criminal act, it does not, in and of itself, “reflect adversely on [a] lawyer’s
honesty, trustworthiness or fitness” to practice law under Rule 8.4(b), nor is it
“prejudicial to the administration of justice” under Rule 8.4(d).
8. Respondent’s criminal conviction for Offensive Touching, which he
committed to prevent his child from running away from home, bears no
5 In re Fountain, 878 A.2d 1167, 1173 (Del. 2005) (internal quotation marks and citation
6 In re Abbott, 925 A.2d 482, 484 (Del. 2007) (citation omitted).
7 11 Del. C. § 601(a)(1).
relationship to Respondent’s fitness to practice law. In these unique factual
circumstances, the ODC should not have intervened. Because the case was not an
appropriate subject of a Petition for Discipline, we adopt the Board’s Report and
deny the Petition for Discipline.
The matter is hereby CLOSED.
BY THE COURT:
/s/ Jack B. Jacobs