A recent decision by the Delaware Court of Chancery provides an example of those rare instances where the court refers a violation of legal ethics to the Office of Disciplinary Counsel for investigation, as compared to the court itself determining the appropriate penalty. See Charter Communications Operating LLC v. Optymyze, LLC, et al., C.A. No. 2018-0865-JTL, letter (Del. Ch. Mar. 5, 2019)
Some readers are surprised to read about Delaware court opinions which explain that the Delaware courts do not view their primary role as enforcers of the Rules of Professional Conduct unless violations of those rules “prejudicially disrupt judicial proceedings” or “threaten the legitimacy of judicial proceedings.” See, e.g., Crumplar v. Superior Court, 56 A.3d 1000, 1009 (Del. 2012), highlighted on these pages. Other cases have used the phrase “interfering with the administration of justice.” See, e.g., Lendus LLC v. Goede, highlighted on these pages.
Rather, the Office of Disciplinary Counsel (ODC), a branch of the Delaware Supreme Court, is the proper venue for investigating and enforcing violations of legal ethics. In the Charter case linked above, the court was considering violations of Rule 11 when the counsel involved withdrew. The court explained that there might be some cases where it would continue to address a Rule 11 issue even after counsel withdrew, but the ODC is well equipped to investigate attorneys and recommend appropriate action.
Legal ethics is a topic covered by these pages because it not only applies to Delaware corporate and commercial litigation, but it also permeates virtually every aspect of legal practice. See, e.g., my recently published book on legal ethics highlighted on these pages.