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 24, 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’ opposition to Plaintiff’s 

application, it appears that: 

1. On June 3, 2021, the Court denied Mr. Abbott’s motions for a temporary 
2

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 they 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, he 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 and discussed the status of the proceedings. He also 

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

disclosed that ODC presented those misconduct charges to the Delaware Supreme 

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

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

he now awaits the next step in the attorney disciplinary process -- a hearing before a 

Board of Professional Responsibility (“BPR”) panel. Those 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.2In fact, all three factors weighed strongly against granting Mr. Abbott’s 

1 Tr. 54-59. 

2

See 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 independently 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 arguments to the 

contrary, that principle 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.8In fact, when 

considering 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; see 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 irreparable 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); see also In re Matter of 

Machette, 2004 WL 1535729, 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 Review Committee and the Board of Professional 

Responsibility).
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 failed to demonstrate a colorable claim for injunctive relief at the 

hearing.

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

imminent irreparable harm absent a TRO. First, the Court explained that 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, 

Mr. Abbott continues to enjoy the benefits of an unencumbered license to practice 

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

that will befall him in the interim, other than the costs and stress that accompany any 

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

proceedings, it would merely shift the forum, not the costs 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, with its multiple levels of review and an 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. Finally, in its decision after the hearing, the Court explained 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 accordingly are subject to appointment, removal, and direction by the 

Supreme Court only, and not a lower court).

10 Tr. 56; see Gimbel v. The Signal Companies, 316 A.3d, 599, 602 (Del. 1974)(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 not 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 18, 2021 Order, Mr. 

Abbott remains 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 proceedings. Namely, such 

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

regulation of attorneys. In those 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 18, 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 

participation 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

This, 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, could 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 proceedings of a higher court 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 

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

Rule 42. The latter 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 the 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 Black 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) The 

interlocutory order has sustained the controverted jurisdiction 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 review 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 interlocutory order may 

terminate the litigation; or (H) Review 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. He contends that 

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

appellate review before a final judgment.”

18

 He also addresses two of the eight 

criteria cited in Supreme Court Rule 42(b)(iii). 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 

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

10. 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 Court, as the entity that regulates attorney 

conduct, and (3) the public. Nevertheless, because 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. Where there is no 

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

that merits interlocutory review.

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

in Supreme Court Rule 42(b)(iii) 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 interlocutory order may serve considerations of justice”). 
8

attorney disciplinary process in this 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 jurisdiction 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 court 

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

duties.

22

 

12. Likewise, Mr. Abbott’s second-cited criterion does not support 

certification. Rule 42(b)(iii)(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. 

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

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

certification. 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 

transplanted to Delaware by the colonists”).

22 Marvel, 2016 WL 3563273, at *1. 
9

finds no benefit to certification that could outweigh the costs of piecemeal

litigation.

23

 

WHEREFORE, 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 Judge24

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 designated Vice-Chancellor pursuant to Article IV § 13(2) of the 

Delaware Constitution.