Court Rejects Claim That Rule 5.5 Matter Should Be Handled as UPL, Not Discipline

By Samson Habte  

Dec. 5 --An out-of-state lawyer who routinely attempted to settle personal injury insurance claims on behalf of Delaware clients will be prohibited from practicing law in the state for at least one year, the Delaware Supreme Court held Dec. 4, rejecting the lawyer's objection that the matter should have been handled as an unauthorized practice violation instead of a disciplinary case (In re Nadel, 2013 BL 337403, Del., No. 599, 2013, 12/4/13).

In a per curiam opinion the court disagreed with attorney Raymond S. Nadel's claim that he was prejudiced by the Office of Disciplinary Counsel's decision to prosecute him in an ethics proceeding rather than through an action before the Board on the Unauthorized Practice of Law (BUPL), where he presumably would have received a more lenient sanction.

“That decision to proceed with one entity or another is a discretionary decision to be made by the ODC,” it explained.

The court also disagreed with Nadel's contentions that the imposition of “a one-year suspension following his first offense in some way violates Equal Protection” or exceeds the goals of lawyer discipline.

Hello, Wilmington

Nadel practices in a firm located in southern New Jersey, where he is licensed; he also is a member of the Pennsylvania bar but not the Delaware bar, the court said.

Disciplinary counsel “has the authority to prosecute a disciplinary proceeding … with either the [UPL board] or the Board on Professional Responsibility.”


Delaware Supreme Court

The court found that he engaged in the unauthorized practice of law in Delaware on dozens of occasions. Nadel's cross-border improprieties began in April 2009, it said, when a Delaware doctor asked him to help a patient who was involved in an automobile accident. Over the next three and a half years, the court said, Nadel “met with more than seventy-five Delaware residents who were involved in auto accidents” that “occurred in Delaware and involved Delaware insurance policies governed by Delaware law.”

Nadel met with “roughly half” of his Delaware clients at the doctor's Wilmington medical office, the court said. “But in each instance,” it added, “Nadel would attempt to settle the insurance claims on behalf of his Delaware clients.” If a settlement attempt did not succeed Nadel would turn the case over to local Delaware counsel to pursue litigation.

Nadel did not file suit in Delaware or appear before any tribunals in the state, and he never advertised or actively solicited clients there, the court said. “Nor did he ever represent to a Delaware citizen that he was a member of the Delaware bar. … No actual harm resulted from Nadel's representation,” it added.

In 2012, the ODC charged Nadel with two counts of the unlicensed practice of law in violation of Rules 5.5(b)(1) and 5.5(b)(2) of the Delaware Lawyers' Rules of Professional Conduct.

A hearing panel determined that Nadel knowingly violated those rules. It recommended that he be suspended from practicing law in Delaware for one year, barred from providing advice to any Delaware clients on matters of Delaware law for one year, and prohibited from acting pro hac vice in any matter in the state for three years.

Nadel, who had argued for a public reprimand, raised three objections to the panel's report. The court rejected each objection.

Either Forum

Nadel first argued that the ODC should have initiated a BUPL proceeding rather than bring him before the Board on Professional Responsibility.

“Because this is his first disciplinary offense, Nadel argues that if the ODC had pursued his case with the BUPL, he would [not] have received an Order prohibiting him from practicing law in Delaware and other sanctions including limits on pro hac vice admissions,” the opinion states.

That argument lacks merit, the court held. “As we explained in [In re Tonwe, 929 A.2d 774, 23 Law. Man. Prof. Conduct 292 (Del. 2007)], the ODC has the authority to prosecute a disciplinary proceeding against a lawyer who engages in professional misconduct with either the BUPL or the Board on Professional Responsibility,” the court stated.

“Further,” it continued, “the Board on Professional Responsibility has the power, without limitation, to make findings of fact and recommendations for sanctions with respect to disciplinary matters.”

“Therefore, Nadel's claim that either the ODC or the Panel somehow exceeded their authority is without merit,” the court concluded.

Equal Protection

Nadel also contended that the “recommendation of a one-year suspension following his first offense in some way violates Equal Protection,” the court said.

“Nadel does not cite any authority in support of this claim or even specify that the Panel's sanction violates either the Delaware or United States Constitution,” the court observed. Rather, it said, Nadel's equal protection argument was predicated on his contention that a Delaware-licensed lawyer would not have received a one-year suspension as a first-time offender.

That was mere “speculation,” the court said, noting that Nadel failed to “cite any similar instances of a Delaware attorney with thirty years of legal experience receiving a lesser penalty for similar violations.”

Moreover, Nadel admitted to 75 separate ethics violations, the court said. “Such conduct cannot be reasonably described as a first-time offense,” it concluded.

Specter of Reciprocation

Finally, Nadel maintained that the disciplinary panel's recommended sanction exceeded the goals of lawyer discipline, which are focused on protection of the public and the courts, preservation of confidence in the legal profession and deterrence of similar misconduct.

According to the court, Nadel argued before the disciplinary panel “that a public reprimand would be more appropriate, primarily because the State of New Jersey will likely impose a reciprocal suspension.” In his objections to the court, he further stated that the disciplinary goals “can still be achieved through the use of an indefinite period of public probation,” the opinion states.

“[W]e disagree with his premise that a public probation would adequately fulfill the objective of the lawyer disciplinary systems,” the court declared. It noted that Nadel's rule violations were knowing, and that a suspension is the presumptive sanction because ABA disciplinary standards generally provide that reprimands are appropriate only for negligent conduct.

Warning to Others

“Moreover, a suspension provides a stiff deterrent to other out-of-state lawyers, alerting them that the rules governing the representation of Delaware clients are strictly enforced,” the court said.

“We recognize that a suspension in Delaware could affect Nadel's ability to practice law in the State of New Jersey,” the court acknowledged. “However,” it added, “our concerns must be focused on the practice of law within the State of Delaware and the protection of Delaware's citizens from the unauthorized practice of law.”

To contact the reporter on this story: Samson Habte in Washington at

To contact the editor responsible for this story: Kirk Swanson at

Charles Slanina of Finger & Slanina LLC, Hockessin, Del., represented Nadel.

The ODC was represented by Deputy Disciplinary Counsel Patricia Bartley Schwarz, Wilmington, Del.

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