In re a Member of the Bar of the Supreme Court of Delaware Finestrauss
32 A.3d 978
| Del. | 2011Background
- Disciplinary proceeding against Delaware attorney Philip M. Finestrauss initiated June 1, 2011 by ODC.
- Counts allege Rule 1.15(b), Rule 5.3, Rule 8.4(c), and two counts of Rule 8.4(d); Respondent admits most counts.
- Tax delinquencies occurred 2008–2010 across federal, state, and local payroll taxes; wife handled filing/payments.
- Certificates of Compliance for 2009 and 2010 misrepresented timely tax payments to the Delaware Supreme Court.
- Respondent had a prior private admonition in 2001 for delinquent taxes; Board recommends 18‑month probation with public reprimand and internal controls.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 8.4(d) applies to tax delinquencies | ODC contends tax delinquencies are prejudicial to justice under 8.4(d). | Finestrauss argues 8.4(d) does not apply to tax delinquencies. | Rule 8.4(d) applicable to substantial tax delinquencies; willful misconduct established. |
| Whether Respondent violated Rule 5.3 by supervising non-lawyer staff | ODC asserts inadequate supervision of bookkeeper caused delinquencies. | Finestrauss asserts proper supervision but failed to follow up. | Counts under 5.3 proven; supervision insufficient. |
| Whether misrepresentations in Certificates of Compliance violated Rule 8.4(c) | ODC alleges misrepresentations in 2009 and 2010 Certificates. | Finestrauss admits misrepresentation | Rule 8.4(c) violated. |
| Whether tax delinquencies support Rule 8.4(d) violations beyond 8.4(c) | ODC relies on Mekler and related cases treating tax delinquencies as 8.4(d) misconduct. | Respondent disputes 8.4(d) applicability to tax delinquencies. | Counts 4 and 5 sustain 8.4(d) findings; san tions warranted. |
| Appropriate sanction given prior admonition and facts | ODC seeks longer probation; 2 years supported by precedent. | Martin suggests 1 year post-admonition may suffice. | Eighteen-month probation with public reprimand and internal controls. |
Key Cases Cited
- In re Mekler, 689 A.2d 1171 (Del. 1996) (tax delinquencies can violate Rule 8.4(d) when willful and substantial)
- In re Jeffrey K. Martin, 774 A.2d 258 (Del. 2001) (sanction for tax delinquencies; probation emphasized)
- In re Andrew J. Witherell, 610 A.2d 1370 (Del. 1992) (tax delinquencies linked with sanction considerations)
- In re Bonnie M. Benson, 821 A.2d 851 (Del. 2003) (multiple rule violations including 8.4(d))
- In re Suzanne MacPherson-Johnson, 878 A.2d 1167 (Del. 2005) (two-year probation with 8.4(d) involvement)
- In re Bailey, 821 A.2d 851 (Del. 2003) (sanctions framework under ABA standards)
- In re McCann, 894 A.2d 1088 (Del. 2005) (ABA standards guidance for sanctions)