Attorney dispute raises questions about ethics oversight

DOVER — A Superior Court judge has been asked to decide whether the public agency that oversees government ethics and the code of conduct for Delaware officials has jurisdiction over employees of the state’s court system.

Judge Ferris Wharton is weighing a decision after hearing arguments this week in a case pitting a Hockessin lawyer against Delaware’s Public Integrity Commission.

Attorney Rich Abbott is challenging the commission’s ruling last year that it had no jurisdiction to consider a complaint he filed against the head of the Office of Disciplinary Counsel, or ODC, an arm of the Supreme Court that investigates and prosecutes allegations of lawyer misconduct.

Abbott claims that Jennifer-Kate Aaronson violated a prohibition on state employees demonstrating even the “appearance of impropriety” by refusing to recuse herself from an investigation of him that he describes as a “fishing expedition.”

The commission dismissed the complaint last year for lack of jurisdiction and failure to properly allege a violation of the code of conduct. It noted that although Aaronson is a state employee, the judicial branch is vested with primary authority to enforce rules governing attorney conduct.

In a supplemental decision, the commission went even further. While affirming that it lacked jurisdiction over Aaronson because of the separation of powers doctrine, it also declared that ODC does not meet the code of conduct’s definition of a state agency. That reasoning was based on the fact that the ODC was not created by an act of the General Assembly or a provision of the state constitution.

“As a result, the commission cannot conclude that Ms. Aaronson is a state employee because her employer, ODC, does not qualify as a state agency under our governing statute,” the panel wrote.

Abbott and Aaronson did not return messages seeking comment on the dispute. Deborah Moreau, the commission’s attorney, declined to comment while the case is pending.

In his complaint, Abbott alleged that Aaronson undertook the investigation of him, which included trying to obtain confidential attorney-client communications, to ingratiate herself with a member of the judiciary and to further her own ambitions for a judgeship. Abbott also complained that Aaronson communicated with Chief Justice Leo Strine Jr. to obtain confidential documentation from the Court on the Judiciary, which handles complaints regarding judicial officers, without notifying him.

“The cozy ‘direct report’ relationship between you and the chief justice could lead a reasonable person to believe that improper influence was utilized in order to gain such an extraordinary release of confidential papers,” Abbott wrote in a letter to Aaronson.

“You have an initiated an investigation based on nothing but an unjustified request by your judiciary colleague to undertake a fishing expedition,” he added, “… and you have attempted to abuse your powers by seeking documents that are clearly privileged in furtherance of that wild goose chase.”

In response to a request from comment from Strine, a spokesman for the Administrative Office of the Courts said it would be inappropriate for the chief justice to comment on a pending matter.

Aaronson’s investigation was prompted by a referral of Abbott to the ODC by a Chancery Court judge who presided over a long-running dispute between a homeowners association and a resident who refused to trim his trees and bushes.

After finding that the homeowner was in breach of a consent order regarding the foliage trimming, the judge directed the lawyers to work together toward a resolution. Abbott later informed the court that further proceedings were not necessary, because the homeowner had transferred title of the property to his wife.

The homeowners association argued that the property transfer, done at Abbott’s advice, was a sham to evade a court order, and the judge found Abbott and the homeowner in contempt.

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