IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

RICHARD L. ABBOTT, :

: C.A. No. 2021

- 0409 JJC
Plaintiff, :

:

:

v. :

:

: KATHLEEN M. VAVALA, DAVID A. : WHITE, COLLINS J. SEITZ, JR., : JAMES T. VAUGHN, JR., TAMIKA R. :
MONTGOMERY

- REEVES, GARY F. : TRAYNOR, and KAREN L. VALIHURA, :

: Defendants

. :

Submitted: June 2 4, 2021

Decided: June 30, 2021

ORDER

Plaintiff’s Application for Certification of Interlocutory Appeal

– DENIED

On June 30, 2021, after considering Plaintiff Richard Abbott’s application to

certify an interlocutory appeal, and the Defendants’ o pposition to Plaintiff’s

a pplication

, it appears that:

1. On June 3, 2021, the Court denied Mr. Abbott’s motion s for a temporary2

restraining order (“TRO”) and to expedite the proceedings. Mr. Abbott now requests

that the Court certify an interlocutory appeal of those decisions

. In Mr. Abbott’s

suit, he named the Chief and Deputy Counsel of Delaware’s Office of Disciplinary

Counsel (“ODC”) , and the five members of the Delaware Supreme Court as

defendants

. He alleges th ey are violating State and federal racketeering laws and are

depriving him of certain constitutional rights. In addition to seeking a TRO, which

the Court denied, h e seeks a preliminary and permanent injunction, a declaratory

judgment, and a Court order placing Delaware’s attorney disciplinary system into

receivership.

2. In his publicly filed complaint and briefing, Mr. Abbott described his

pending disciplinary complaint a nd discussed the status of the proceedings. He also

disclosed what ODC alleges to be his misconduct. Mr. Abbott further publicly

disclose d that ODC presented those misconduct charges t o the Delaware Supreme

Court’s Preliminary Review Committee (“PRC”) , and that the PRC found probable

cause to charge him with violating several ethic al rules. According to Mr. Abbott,

he now awaits the next step in the attorney discipl inary process

-- a hearing before a

Board of Professional Responsibility (“BPR”) panel. Th ose proceedings are in the

discovery stage with a hearing set before a BPR panel in November 2021

.

3. After the June 3, 2021 hearing, the Court denied both Mr. Abbott’s motion

for a TRO and his motion to expedite for the reasons stated on the record. 1 As the

Court explained, Mr. Abbott failed to demonstrate that he met any of the three TRO

factors. 2 In fact, all three factors weighed strongly against gra nting Mr. Abbott’s

1 Tr. 54

- 59.

2 S ee Merrill Lynch, Pierce, Fenner & Smith, Inc., v. Price, 1989 WL 108412, at *2 (Del. Ch. Sept. 13, 1989)(explaining that the movant must demonstrate (1) a colorable claim on the merits ; (2)

that imminent, irreparable is harm likely to occur ; and (3) that in balancing the equities, the movant

is favored ).3

request. Furthermore, Mr. Abbott did not meet his burden on his motion to expedite

because he did not demonstrate that the two factors relevant to that inquiry made

expedition appropriate

. 3 Finally, the Court provided an indepen dently dispositive

reason for denying the motions. Namely, the Delaware Supreme Court separately

ordered that his disciplinary proceedings proceed without interruption. 4

4. Regarding his application for a TRO

, the Court concluded that Mr

.

Abbott failed to demonstrate a colorable claim. 5 As the Court explained, the

Delaware Supreme Court has inherent and exclusive jurisdiction over attorney

governance and disciplinary matters. 6 Despite Mr. Abbott’s argument s to the

contrary , that p rinciple is unqualified

. In fact, as recently as June 10, 2021, the

Delaware Supreme Court reaffirmed it

. 7 Moreover, ODC, the PRC, and the BPR

are separately recognized arms of the Delaware Supreme Court. 8 In fact, when

conside ring Mr. Abbott’s arguments in a separate filing, the Supreme Court has

already rejected his argument that these arms should be treated separately from the

body

. Specifically, it ruled that no lower court could control disciplinary counsel ’s

3 Tr. 58

- 59; s ee also In re TriQuint Semiconductor, Inc. Stockholders Litig., 2014 WL 2700964, at *2 (Del. Ch. June 13, 2014) ( explaining that to warrant expedited proceedings , a movant must show a colorable claim on the merits and a strong possibility of irrepar able harm).

4 See In re Richard L. Abbott, Esq., 2021 WL 1996927, at *1

- 2 ( Del

. May 19, 2021) ( ordering that “ODC attorneys shall continue to prosecute the pending disciplinary action against Abbott, and the current BPR Panel assigned to consider the charges against Abbott shall continue”)

. 5 Tr . 55:2

- 7.

6 In re Froelich, 838 A.2d 1117, 1120 (Del. 2003).

7 See Hunt v. Ct

. of Ch

. , 2021 WL 2418984, at *6 (Del. June 10, 2021)(recognizing the Delaware Supreme Court’s “sole and exclusive responsibility over all matters affecting governance of the Bar”).

8 See Del. Supr. Ct. R. 64 (creating ODC and defining its responsibilities ) ; s ee also In re Matter of
Machette, 2004 WL 15 35729 , at *1 (Del. June 17, 2004)(TABLE)(recognizing that the Office of Disciplinary Counsel is “ an arm of the Supreme Court”) ; Del. Supr. Ct. R. 62 ( creating and defining the responsibilities of the Preliminary Revie w Committee and the Board of Professional

R esponsibility)

.4

actions

. 9 On balance, this Court has no jurisdiction to enjoin the members of the

Supreme Court

, or ODC as an arm of the Supreme Court, from taking action that

falls within the Supreme Court’ s inherent and exclusive jurisdiction . Accordingly,

Mr. Abbott fail ed to demonstrate a colorable claim for injunctive relief at the

hearing

.

5. Likewise, for several reasons, Mr. Abbott failed to demonstrate

imminent irrepa rable harm absent a TRO

. First, the Court explained th at it need take

no action to maintain the status quo. 10 To the contrary, Mr. Abbott’s requested relief

would alter the status quo by halting an ongoing disciplinary proceeding

. Second,

M r. Abbott continues to enjoy the benefit s of an unencumbered license to practice

law while he awaits a decision in that forum . Accordingly, he identifie d no harm

that will befall him in the interim

, other than the costs and stress that accompan y any

litigation. Were the Court of Chancery to somehow halt his disciplinary

pr oceedings , it would merely shift the forum , not the cos ts and stress

. Third, Mr.

Abbott offered only conclusory allegations that the disciplinary process treats him

unfairly

. He did not demonstrate a likelihood that Delaware’s attorney disciplinary

process, w ith its multiple levels of review and a n adversarial hearing

, fails to provide

due process

. It provides him adequate protection

, and the Delaware Supreme Court

has repeatedly recognized that it provides due process. 11

6. F inally, in its decision after the hearing, the Court expl ained why a

9 See Abbott v. Aaronson

., 2019 WL 925856 , at * 1 (Del. Feb. 25, 2019 ) (TABLE)( explaining , in
the context of a writ of mandamus, that disciplinary counsel serves at the pleasure of the Delaware Supreme Court, and acco rdingly are subject to appointment, removal, and direction by the Supreme Court only, and not a lower court )

. 10 Tr. 56; s ee Gimbel v. The Signal Companies , 316 A.3d, 599, 602 (Del. 197 4 )( explaining that the purpose of a TRO is generally to maintain the status quo).

11 See Froelich, 838 A.2d at 1120 (discussing the discipline process , the role of the arms of the Supreme Court, and the Supreme Court’s final decision

- making authority over attorney discipline)

.5

balancing of the hardships did no t favor a TRO. Although Mr. Abbott has the

unquestionable right to defend himself, he did not substantiate why he could not

adequately do so in the current forum. Pending final disposition of his disciplinary

case, he continues to practice law without restriction , which is not a hardship

.
Furthermore, as the Supreme Court recognized in its May 1 8 , 2021 Order, Mr.

Abbott remain s free to contest any alleged procedural irregularities when the

Supreme Court reviews the BPR’s recommendations

. 12 On the other end of the

scale, the Court considered the hardship that would impact Delaware’s attorney

disciplinary process if the Court were to enjoin the p roceedings

. Namely, such

interference would adversely impact the public’s interest in appropriate professional

regulation of attorneys

. In th ose terms, the public’s interest in a defined system that

regulates attorney conduct weighs heavily against upending the process

, mid

- stream.

7. Independent of Mr. Abbott’s failure to justify a TRO or expedition of

the proceedings, the Court also denied Mr. Abbott’s motions for another reason

. Namely, the Delaware Supreme Court’s May 1 8 , 2021 Order (the “Order”)

specifically prohibited any interference with his disciplinary case through alternate

litigation. The Order provides :

[i]n the exercise of [the Delaware Supreme Court’s] exclusive authority to supervise and discipline members of the Delaware Bar, and to protect the effective functioning of the disciplinary process, . . . the Court ORDERS as follows: ODC attorneys shall continue to prosecute the pending disciplinary action against Abbott, and the current BPR Panel assigned to consider the charges against Abbott shall continue to hear the action and make a recommendation to the Court. Any objections to the conduct of the ODC attorneys or the BPR Panel, or their continued

pa rticipation in the disciplinary proceedings will be considered by the [Supreme] Court upon review of the Panel’s recommendation. 13

12 In re Abbott, 2021 WL 1996927, at *1.

13 Id.6

Th is , independently and definitively, settles the issue

. Even if Mr. Abbott had raised

a colorable claim for a TRO or injunction , the Court of Chancery, as an inferior

court, c ould not enjoin the five members of the Supreme Court and ODC officials

from applying the disciplinary process to Mr. Abbott. It could not, both because it

lacks jurisdiction to control the proceed ings of a higher c ourt and because a higher

court has expressly ordered a lower court not to interfere with his proceedings

. 14

8. Here

, Mr. Abbott requests that the Court certify an appeal of its two

i nterlocutory orders pursuant to Court of Chancery Rule 72(b) and Supreme Court

Rule 42. The lat t er provides the applicable standard. Namely, interlocutory appeals

are the exception, not the rule. 15 They are disfavored because they disrupt the flow

of litigation, cause delay, and exhaust party and judicial resources. 16 Furthermore,

a trial court must consider (1) a general standard and (2) eight separate criteria when

it evaluates whether it should certify an interlocutory appeal. 17

14 See Marvel v. New Castle Cty. Super. Ct., 2016 WL 3563273, at *1 (Del. June 21, 2016) (TABLE)(holding that t he Court of Chancery has no jurisdiction to review rulings made by the Supreme Court.) ; In re Abbott, 2021 WL 1996927, at *1

- 2 ( prohibiting Mr. Abbott , in effect, from pursuing any new action regarding this matter).

15 B lack v. Hollinger Int’l, Inc., 2004 WL 906587, at *1 (Del. Apr. 23, 2004)(TABLE).

16 Del. Supr. Ct. R. 42(b)(ii).

17 See Del. Supr. Ct. R. 42(b)(iii) (providing that the “trial court should consider whether: (A) The interlocutory order involves a question of law resolved for the first time in this State; (B) The decisions of the trial courts are conflicting upon the question of law; (C) The question of law relates to the constitutionality, construction, or application of a statute of this State, which has not been, but should be, settled by this Court in advance of an appeal from a final order; (D) T he interlocutory order has sustained the controverted j urisdiction of the trial court; (E) The interlocutory order has reversed or set aside a prior decision of the trial court, a jury, or an administrative agency from which an appeal was taken to the trial court which had decided a significant issue and a rev iew of the interlocutory order may terminate the litigation, substantially reduce further litigation, or otherwise serve considerations of justice; (F) The interlocutory order has vacated or opened a judgment of the trial court; (G) Review of the interlocu tory order may terminate the litigation; or (H) R eview of the interlocutory order may serve considerations of justice ” )

.7

9. In support of certification, Mr. Abbott first argues that he meets Delaware

Supreme Court Rule 42(b)(i)’s general standard for such appeals

. H e contends that

the Court’s decision creates a “substantial issue of material importance that merits

appellate review before a final judgment. ” 18 H e also addresses two of the eight

criteria cited in Supreme Court Rule 42(b)(ii i )

. Namely, he contends that the

interlocutory orders raise questions of law resolved for the first time in this State. 19

He also alleges that interlocutory review of the orders would serve considerations of

justice. 20 As the Court will explain, Mr. Abbott’s request for interlocutory

ce rtification is supported by neither the general standard nor any of the eight criteria.

1 0

. Regarding the general standard for certification

, Mr. Abbott identifies no

substantial issue that justifies an appeal before final judgment. The Court

recognizes that Mr. Abbott’s ongoing disciplinary action is important to (1) Mr.

Abbott, (2) the Delaware Supreme Cour t, as the entity that regulates att orney

conduct, and (3) the public . Nevertheless, b ecause only the Delaware Supreme

Court controls the attorney disciplinary process, Mr. Abbott fails to demonstrate a

colorable claim for any injunctive relief , much less a TRO

. Wh ere there is no

colorable claim for relief , there can be no substantial issue of material importance

that merits interlocutory review

.

1 1

. Mr. Abbott also fails to demonstrate that any of the eight criteria identified

in Supreme Court Rule 42(b)(i i i) support certification. First, he contends that the

two orders involve questions of law resolved for the first time in this jurisdiction

. They do not . Rather, while he may be the first litigant to attempt to enjoin the

18 Del. Supr. Ct. R. 42(b)(i)

. 19 See Del. Supr. Ct. R. 42(b)(iii)(A) (providing the trial court should consider whether “ [ t ] he interlocutory order involves a question of law resolved for the first time in this State”).

20 See Del. Supr. Ct. R. 42(b)(iii)(H)( providing the trial court should consider whether “ [ r ] eview

of the i nterlocutory order may serve considerations of justice”).8

attorney disciplinary process in t his manner , he ignores well

- settled law

. Namely,

the only entity with jurisdiction over the attorney disciplinary process is the

Delaware Supreme Court. As a result, the Court of Chancery has no jurisdiction to

interfere in his proceedings, has had no ju risdiction to do so since the State’s

founding, and would not have had jurisdiction in England before that. 21 In this

regard, Mr. Abbott identifies no novel legal issue because (1) the Delaware Supreme

Court exclusively regulates members of the Delaware Bar, and (2) an inferior c ourt

has no ability to enjoin the members of a higher c ourt from performing their official

dutie s

. 22

1 2 . Likewise, Mr. Abbott ’s second

- c ited criterion does not support

certification. Rule 42(b)(i i i)( H ) recognizes that interlocutory appeals may be

appropriate if they serve considerations of justice . Mr. Abbott, however, makes only

conclusory allegations that the attorney disciplinary system is biased against him and

those similarly situated to him. If the Court were to certify an interlocutory appeal

and sanction his attempt to halt the disciplinary process mid

- stream, such action

would do the opposite of serving considerations of justice. Those considerations are

best served by (1) declining to enjoin an ongoing process before a hearing, and (2)

denying certification of his appeal

.

1 3

. Finally, although Mr. Abbott did not address the remaining criteria cited

in Rule 42(b)( i ii), the Court has considered them. They likewise do not support

cer tif ication

. On balance, after fully considering Mr. Abbott’s arguments, the Court

21 See In re Green, 464 A.2d 881, 885 (Del. 1983)( describing the Delaware Supreme Court’s authority over lawyer governance matters as being a “tenet [ ] of historic proportions, having been transpla nted to Delaware by the colonists ”).

22 Marve l

, 2016 WL 3563273, at *1.9

finds no benefit to c ertification that c ould outweigh the costs of piecemeal

litigation

. 23

WHER E FORE, for the reasons discussed, Plaintiff Richard L. Abbott’s

application for certification of an interlocutory appeal is DENIED.

IT IS SO ORDERED.

/s/Jeffrey J Clark

Resident Judge 24

23 See Del. Supr. Ct. R. 42(b)(iii)( also providing that “the trial court should identify whether and why the likely benefits of interlocutory review outweigh the probable costs, such that interlocutory review is in the interests of justice”).

24 Serving as a specially des ignated Vice

- Chancellor pursuant to Art icle IV § 13(2) of the

Delaware Constitution.