[A.C. No. 5534.

January 17, 2005]

JAYNE Y. YU, complainant, vs. RENATO LAZARO

BONDAL, respondent.

DECISION
CARPIO MORALES, J.:

Atty. Renato Lazaro Bondal (respondent) stands charged in a

complaint filed by Jayne Y. Yu (complainant) for gross negligence and
[1]

violation of Canon 16 and Rule 16.03 of the Code of Professional

[2] [3]

Responsibility arising from his alleged failure to attend to the five cases
she referred to him and to return, despite demand, the amount
of P51,716.54 she has paid him.
By complainants allegation, the following spawned the filing of the
present administrative complaint:
On March 30, 2000, she engaged the services of respondent as
counsel in the following cases: (1) Jayne Yu. v. Swire Realty and
Development Corp, for Rescission with Damages filed before the
Housing and Land Use Regulatory Board, (2) I.S. No. 00-22089-
90, Jayne Yu v. Lourdes Fresnoza Boon, for Estafa, (3) I.S. No. 2000-
G-22087-88, Jayne Yu v. Julie Teh, for violation of Batas Pambansa
Blg. 22, (4) I.S. No. 2000-D-11826, Jayne Yu v. Mona Lisa San Juan for
violation of Batas Pambansa Blg. 22, and (5) I.S. No. 2000-D-
11827, Jayne Yu v. Elizabeth Chan Ong, also for violation of Batas
Pambansa Blg. 22. [4]

In the Retainer Agreement dated March 30, 2000, complainant

[5]

agreed to pay respondent the amount of P200,000.00 as Acceptance

Fee for the five cases, with an Appearance Fee of P1,500.00 pesos per
hearing; and in the event that damages are recovered, she would pay
respondent 10% thereof as success fee.
Complainant later issued two checks, BPI Family Bank No. 94944
and BPI Family Bank No. 94968, dated February 20, 2001 and April 5,
2001 in the amount of P30,000.00 and P21,716.54, respectively. [6]
 Despite receipt of above-said amounts, respondent failed to file a
case against Swire Realty and Development Corp; due to respondents
[7]

negligence, the case for estafa against Lourdes Fresnoza Boon was
dismissed by the Office of the City Prosecutor of Makati City and was
not timely appealed to the Department of Justice; respondent [8]

negligently failed to inform complainant, before she left for abroad, to

leave the necessary documents for purposes of the preliminary
investigation of the case filed against Julie Teh before the Office of the
City Prosecutor of Makati City, which case was eventually dismissed by
Resolution dated August 14, 2000; and respondent compelled her to
[9]

settle the two cases for violation of B.P. Blg. 22 against Mona Lisa San
Juan and Elizabeth Chan Ong under unfair and unreasonable terms. [10]

Respondent thus demanded from respondent, by letter of June 14,

[11]

2001, for the return of all the records she had entrusted him bearing on
the subject cases.
Through complainants counsel (Chavez Laureta and Associates
Law Office) which sent a letter to respondent, she reiterated her
[12]

demand for the return of the records of the cases.

Respondent did return but only the records bearing on the estafa
case against Lourdes Fresnoza Boon and the B.P. Blg. 22 case against
Mona Lisa San Juan.
Complainant through counsel thus demanded, by letter of August [13]

8, 2001, the return of the rest of the files, particularly that dealing with
Swire Realty and Development Corporation and Julie Teh. In the same
letter, complainant also demanded the refund of the amounts covered
by the above-said two BPI Family Bank Checks amounting
to P51,716.54, they being intended to represent payment of filing fees
for the case against Swire Realty and Development Corporation which
respondent failed to file.
As respondent failed and continues to refuse to comply with
complainants valid demands in evident bad faith and to her prejudice,
she filed the present complaint charging him with flagrant violation of
Canon 16 and Canon 16.03 of the Code of Professional Responsibility.
By Resolution of February 4, 2002, this Court directed respondent
[14]

to file his Comment. Respondent, through his counsel, the Escobido

and Pulgar Law Offices, filed a motion for extension for thirty days or up
to April 9, 2002, which was granted by Resolution of May 27, 2002. No
copy was, however, furnished respondents counsel. [15]
 As respondent failed to file his Comment on the present complaint,
this Court, by Resolution of July 21, 2003, considered the filing of
respondents comment deemed waived and allowed complainant to
present her evidence before the Office of the Bar Confidant. [16]

At the hearing before the Officer of the Bar Confidant, complainant

echoed her allegations in the complaint.
As to the other cases referred by complainant to respondent,
complainant testified that the case against Julie Enriquez-Teh was
dismissed because respondent failed to present the original checks
subject of the case; that the estafa case against Ms. Lourdes Boon
[17]

was dismissed and was never appealed; and that she was prodded by
[18]

respondent to settle the two cases for B.P. Blg. 22 even if she was not
satisfied with the terms thereof, respondent having assured her that he
would waive his 10% success fee in the case against Swire
Development. [19]

And complainant submitted the following documentary evidence: (1)

Retainer Agreement between her and Atty. Renato Lazaro Bondal; (2) [20]

BPI Family Bank Check No. 94944 dated February 20, 2001
for P30,000.00 payable to cash; (3) BPI Family Bank Check No. 94968
[21]

dated April 5, 2001 for P21,716.54 payable to cash; (4) Resolution of

[22]

the City Prosecutor of Makati dated August 18, 2000 on a case between
Jayne Yu and Lourdes Fresnoza Boon; (5) Resolution of the City
[23]

Prosecutor of Makati on a case between her and Julie Enriquez-

Teh; (5) her letter to respondent dated June 14, 2001 requesting the
[24]

return of pertinent records of the cases referred to him; (6) letter of [25]

Francisco I. Chavez to respondent dated July 18, 2001 reiterating the

request for the return of the records and an accounting of the amount
of P51,716.54; (7) letter of Francisco I. Chavez to respondent dated
[26]

August 8, 2001 confirming the receipt of two folders relative to the cases
she filed against Lourdes Fresnoza Boon and Mona Lisa San Juan,
requesting Atty. Bondal to return the files bearing on Swire Realty and
Development Corporation and Julie Teh, and demanding the refund of
the amount of P51,716.54. [27]

The Office of the Bar Confidant, by Report and

Recommendation, recommends the dismissal of the complaint for
[28]

failure of complainant to substantiate it.

From the records of the case, it is culled that except for the case
against Swire Development Corporation, the other 4 cases referred by
complainant to respondent were filed in court but were dismissed or
terminated for causes not attributable to respondent.
The case for estafa against Lourdes Fresnoza Boon in I.S. No. 00-
22089-90 was dismissed by the Makati Prosecutors Office by
Resolution dated August 18, 2000 due to lack of probable cause and, in
any event, the issues raised therein were in the nature of intra-corporate
disputes which are properly cognizable by another forum, viz:

After careful examination and evaluation of the evidence adduced both by com
plainant and respondent, undersigned Investigating Prosecutor finds no probabl
e cause to hold respondent for the offense charged of Estafa. Apparently, there
was no deceit and/or unfaithfulness or abuse of confidence employed by
respondent when complainant agreed to invest her money in the restaurant
business under the name and style of La Gondola, Inc. which is owned by
respondent. xxx In the present case, though, complainant alleged that
respondent immediately upon receipt of the P4,800,000.00 representing her
investment in the restaurant business, executed earlier in favor of Philippine
Commercial and International Bank whereby La Gondola assumed the loans
and credit accommodations obtained by Lucre Export/Import Inc., using the
funds of La Gondola, Inc.; respondent being the President and majority owner
of the latter corporation. However, outside of the mere allegation of
complainant that respondent allegedly assumed the loans and credit
accommodations extended to the other company using the funds of La
Gondola, Inc., no concrete and real evidence were presented and/or proven to
this effect by complainant. xxx

Moreover, it is apparent that the issues being raised by complainant appears to

be intra-corporate disputes which could be very well settled in another
forum. (Underscoring supplied)
[29]

Notably, a similar complaint for the same offense, docketed as I.S.

No. 99-H-2780, had been previously filed by complainant against Ms.
Boon which case was dismissed for insufficiency of evidence. As thus [30]

observed by the Office of the Bar Confidant, the filing of an appeal from
the prosecutors resolution would have been inutile since the facts and
issues raised in the estafa case had already been twice passed upon by
the Office of the City Prosecutor, hence, it would likely be dismissed. [31]

No fault or negligence can also be attributed to respondent in the

dismissal of I.S. No. 2000-G-22087-88 against Julie Teh. By Resolution
of August 14, 2000 of the Makati Prosecutors Office, it is clear that it
was dismissed, in the main, on the ground that the offense charged did
not actually exist and complainant failed to appear and present the
original checks, viz:

After a careful evaluation of the evidence on record, the undersigned

recommends for the dismissal of the present complaints on the following
grounds:

1. Despite reasonable opportunity given to her, complainant failed to appear

and present the original copies of the subject checks and other documents
attached to the complaint.
2. The subject checks were presented after the 90-day period hence there is no
more presumption of knowledge of the insufficiency of funds. Accordingly,
the burden is shifted upon the complainant to prove that at the time the
checks were issued, the drawer knew that he had insufficient funds. There is
no allegation much less proof to that effect. The result is that the element of
knowledge of insufficiency of funds or credit is not present, therefore the
crime does not exist.[32]

On the alleged failure of respondent to appear during the hearing of

I.S. No. 2000-G-22087-88 and his failure to present the original of the
checks subject thereof, they being then in the possession of
complainant who was abroad at that time: Such failure to present the
[33]

original of the checks cannot solely be attributed to respondent, for she

herself was guilty of neglect. [34]

As for the alleged compulsion in the settlement of her two

complaints for violation of B.P. Blg. 22 in accordance with the terms
dictated by the therein respondents Mona Lisa San Juan and Elizabeth
Chan Ong, upon the promise of respondent that he would waive the
10% success fee in the complaint to be filed against Swire
Development: Assuming the truthfulness of her allegation that
respondent compelled her to settle, what the terms were as alleged to
have been dictated by Ms. San Juan and Ms. Chan Ong, and the
manner and/or extent of prejudice she suffered, complainant did not
establish. Moreover, she failed to show that the promise by respondent
that he would waive the 10% success fee was for the purpose of
defrauding her or of such nature as to constitute undue influence,
thereby depriving her of reasonable freedom of choice.
Subsequent to the amicable settlement, it appears that complainant
never raised any objection to the terms of the compromise. As an
accepted rule, when a client, upon becoming aware of the compromise
and the judgment thereon, fails to promptly repudiate the action of his
attorney, he will not afterwards be heard to complain about it. [35]
 As for complainants claim that the amount of P51,716.54, which was
the only amount on record that complainant paid for respondents legal
services, was intended for the filing fees in the complaint against Swire
Development Corporation, the same was not substantiated as in fact the
retainer agreement does not so confirm.

We would like to thank you for retaining our law firm in the handling and
representation of your
case. In regard to the five cases you referred to us, our aggregate Acceptance fe
e is P200,000Pesos with an Appearance fee of P1,500.00 Pesos per hearing. As
regards the damages to be recovered, we will get 10% thereof by way of
Success Fee. (Underscoring supplied)
[36]

If, admittedly, the only payment given to complainant by respondent

is the amount of P51,716.54, then complainant still owes respondent
more, as respondent rendered his legal services in 4 out of the 5 cases.
An acceptance fee is not a contingent fee, but is an absolute fee
arrangement which entitles a lawyer to get paid for his efforts regardless
of the outcome of the litigation. That complainant was dissatisfied with
the outcome of the four cases does not render void the above retainer
agreement for respondent appears to have represented the interest of
complainant. Litigants need to be reminded that lawyers are not demi-
gods or magicians who can always win their cases for their clients no
matter the utter lack of merit of the same or how passionate the litigants
may feel about their cause. [37]

In sum, this Court finds well taken the finding of the Office of the Bar
Confidant that complainant failed to establish the guilt of respondent by
clear, convincing and satisfactory proof. The charges against him must
thus be dismissed. [38]

However, since respondent had been advised by complainant

through counsel Chavez Laureta and Associates, by letter of July 18,
2001, that she intended to terminate his services, as of said date, he
was obliged, under Rule 22.02 of the Code of Professional
Responsibility, viz:

Rule 22.02 A lawyer who withdraws or is discharged shall, subject to a retainer

lien, immediately turn over all papers and property to which the client is
entitled, and shall cooperate with his successor in the orderly transfer of the
matter, including all information necessary for the proper handling of the
matter,
 to immediately turn over all papers and property which complainant
entrusted to his successor.
WHEREFORE, the complaint is hereby DISMISSED. Respondent is,
however, hereby directed to RETURN all the records in his possession
relative to the cases he handled for complainant.

Ellen BRETT, Plaintiff Below, Appellant, v. Gerald Z. BERKOWITZ, and

Berkowitz, Schagrin, Coonin & Cooper, P.A., Defendants Below,
Appelles.

No. 479, 1996.

Decided: February 27, 1998
Before VEASEY, C.J., WALSH, HOLLAND, HARTNETT and BERGER, JJ., constituting the Court
en Banc.Edward C. Gill, Georgetown, for Appellant. F. Alton Tybout, of Tybout, Redfearn & Pell,
Wilmington, for Appellees.
In this appeal we affirm the judgment for defendant entered upon a defense verdict in an action
for sexual misconduct and malpractice by a client against a lawyer. We hold that (1) the
underlying claims against the lawyer for offensive touching and sexual harassment cannot be
based on criminal statutes, although they could be the basis for a claim of intentional tort;   (2)
plaintiff was properly denied discovery of allegations of sexual misconduct with other clients of
defendant;   and (3) the Superior Court properly excluded testimony of a legal malpractice expert
who was not familiar with the standard of care required of lawyers in the State of Delaware.

Facts

After her divorce in 1988, Ellen Brett hired Gerald Z. Berkowitz, Esquire to represent her before
the Family Court with respect to ancillary matters. Berkowitz represented Brett from August
1989 through March 1991, whereupon Brett fired Berkowitz and filed a civil suit against him and
the firm of Berkowitz, Schagrin, Coonin & Cooper, P.A. Brett alleged sexual misconduct and
legal malpractice. She claimed that, over the course of her attorney-client relationship with
Berkowitz, he rubbed her thigh, kissed her against her will and repeatedly suggested that they
sleep together, all in violation of criminal statutes 11 Del.C. §§ 601 and 763(2).1 Brett's legal
malpractice claims were based on allegations that Berkowitz failed to advise her of a possible
claim against her former husband for damages from physical abuse, and that Berkowitz
negligently handled matters concerning property division.

The discovery issue involved two interrogatories, by which Brett requested information relating to
other clients, and a related deposition inquiry. The interrogatories were as follows:

3. Provide the names and addresses of all clients who defendant Berkowitz has had any type of
sexual contact with or who have made a complaint of any sexual contact regarding defendant
Berkowitz.

4. State all occasions on which any shareholders or partners of defendant law firm had any
indication that defendant Berkowitz was having any type of sexual contact with any of his clients.
The defendants objected to and refused to answer both interrogatories. In Berkowitz'
deposition, he refused to answer a series of questions concerning sexual relations with clients,
claiming that they were beyond the scope of discovery.2 Plaintiff then filed a motion to compel
answers to the interrogatories and deposition questions. Citing Superior Court Civil Rule
26(b)(1), plaintiff argued that such discovery had the potential to uncover other admissible
evidence. Further, she argued that the evidence itself was admissible under Delaware Rules of
Evidence 404(b) and 406.

Disposition in the Superior Court

In determining whether the information sought was relevant to Brett's claims, the court ruled as a
threshold matter that Brett did not have a private cause of action under the criminal statutes for
offensive touching and sexual harassment. Instead, the court determined that her claim was one
of intentional infliction of emotional distress.

The Superior Court found that information concerning Berkowitz' alleged relations with other
clients was relevant to the issue of whether he sought sex from Brett. Nevertheless, noting that
the disclosure requested by Brett was unique in that it implicated the substantial privacy interests
of third parties, the court denied the motion to compel on the ground that the discovery was
neither admissible nor reasonably calculated to lead to the discovery of admissible evidence. 3

At trial, the Superior Court excluded the testimony of plaintiff's legal malpractice expert, Neil
Hurowitz, and consequently directed a verdict in favor of the defendants as to both legal
malpractice claims. The jury ruled in favor of defendants on the intentional infliction of
emotional distress claim.

The Nature of Plaintiff's Claim

Resolution of the issue of what constitutes allowable discovery requires first and foremost a
determination concerning the nature of plaintiff's action. We agree with the Superior Court's
ruling that plaintiff may not rely on criminal statutes relating to offensive touching and sexual
harassment as a source of her private cause of action in this case.

A statutory private remedy will be available only if legislative intent to provide such a remedy is
present.4 A statute does not grant a private cause of action simply because the statute has been
violated and a person harmed.5 Our task here is one of statutory construction limited solely to
determining whether or not the General Assembly intended to create the private right of action
asserted by Brett.6 When a statute does not expressly create or deny a private remedy, the issue
is whether or not the requisite legislative intent is implicit in the text, structure or purpose of the
statute.7

Sections 601 and 763(2) of Title 11 provide criminal penalties for offensive touching and sexual
harassment. But neither statute explicitly provides for a private right of action, and we can find
no implicit evidence that the General Assembly intended to create such a right. In some cases,
the intent to create a private remedy may be inferred where a statute was obviously enacted for
the protection of a designated class of individuals.8 Here, both statutes impose general
prohibitions. This suggests that the statutes were enacted, not to create rights for a particular
group of citizens, but to protect the public at large. The penal focus of Sections 601 and 763(2)
cannot be stretched to include civil redress for personal damages.9 Accordingly, we affirm the
Superior Court's ruling that plaintiff's claim, if properly stated, would be for the tort of intentional
infliction of emotional distress, and cannot be based on the criminal statutes asserted here.

The Proper Scope of Discovery

Intentional infliction of emotional distress may warrant a damages remedy in the absence of
accompanying bodily harm, provided there is a showing of severe emotional distress caused by
extreme and outrageous conduct.10 The issue presented is whether or not the interrogatories and
deposition questions fell within the liberal parameters of allowable discovery under Superior
Court Rule 26(b).11

The information that Brett requested concerning Berkowitz' alleged relations with other clients
was relevant to the issue of whether or not he behaved toward Brett in a sexually inappropriate
manner.12 Relevancy is a crucial test in determining the propriety of requested discovery under
Rule 26(b), but it is not sufficient in cases where the discovery is otherwise objectionable on the
ground that (1) it involves privileged subject matter or (2) it is neither admissible nor likely to
lead to the discovery of admissible evidence.

The Attorney-Client Privilege

Brett seeks discovery of sensitive information concerning Berkowitz' relationships with former
clients who are not parties to this litigation. Under the unique circumstances of this case, the
mere disclosure of client identity betrays information that is usually the substance of confidential
attorney-client communication. Compelling the information requested would improperly
contravene the attorney-client privilege.

The Superior Court correctly analyzed Brett's discovery request from two separate but
interrelated perspectives. First, the Superior Court examined Brett's initial right to discover the
names of a lawyer's other clients. Second, the Superior Court considered whether, if discovery
of the names of Berkowitz' clients had revealed or led to evidence of similar relationships with
other clients, such evidence would be admissible at the trial on the merits.

The main purpose behind the attorney-client privilege is “to promote freedom of consultation of
legal advisers by clients.”  13 Delaware's attorney-client privilege is set forth in Section 502 of the
Delaware Uniform Rules of Evidence. The general rule of the privilege is that:

A client has a privilege to refuse to disclose and to prevent any other person from disclosing
confidential communications made for the purpose of facilitating the rendition of professional
legal services to the client (1) between himself or his representative and his lawyer or his lawyer's
representative․ 14

The privilege can be asserted by the client or by the lawyer acting on the client's behalf. 15

As a general rule, the client's identity is incidental to the attorney-client relationship.

Therefore, it is not usually protected from discovery under the attorney-client privilege.16 Some
courts protect the identities of clients in any case where the client whose identity is sought is not a
party to the litigation.17 Moreover, protecting the identities of non-party clients has an important
effect in preserving the flow of communication that underlies the attorney-client privilege.18

The information requested by Brett necessarily requires that the identity of Berkowitz' former
clients be discovered. The privacy interests of persons who are not parties to this litigation
should not be invaded, and we should not risk chilling the free flow of communication that the
attorney-client privilege is designed to foster.

A client's identity is privileged information in exceptional cases:   (1) where revealing the
identity would provide the “last link” in the chain of evidence leading to the conclusion that the
client had committed a crime and (2) where the revelation of the client's identity would
simultaneously reveal “confidential communications” between the lawyer and client. 19

The “last link” exception originated in the Ninth Circuit case of Baird v. Koerner. 20 It is typically
applied in situations where a client has been involved in wrongdoing that has attracted the
attention of regulatory or law enforcement officials, but where the client's identity is unknown to
those officials. The lawyer refuses to reveal the identity of the client because doing so may cause
criminal charges to be brought against the client. Hence, the lawyer's identification is the “last
link” necessary to inculpate the client in a crime. Accordingly, it has been held that, in “last link”
situations, the client's identity is protected by the attorney-client privilege.21

The second established exception to permitting the disclosure of the client's identity is essentially
an application of the privilege as enumerated in the rules of evidence. According to this
“confidential communication” exception, “in unusual situations, particularly where so much is
already known of the attorney-client relationship that to disclose a client's name will betray a
confidential communication, the identity of a client may be treated as privileged information.”  22

In the instant case, Berkowitz is engaged in a general practice that includes the practice of
domestic relations law. Brett's allegations stem from Berkowitz' representation of her in a
divorce proceeding. In a reply brief submitted to the Superior Court in support of the motion to
compel, Brett's counsel represented the following:

What Plaintiff will show is a unique arrangement. Plaintiff will demonstrate through this
evidence that the Defendant was in a position of trust with each of the women involved. He took
each of these women in a particularly vulnerable position in their lives, when they were going
through a divorce. He took their representation through either a very small or no monetary
retainer fee. He would then obtain liens on their property, which property would necessarily
also be property in which the opposing spouse would have an interest. The victims would then
be placed in an extremely vulnerable position. As Defendant Berkowitz' representation of [these
women] moved along and they became more dependent on him he would sexually harass his
clients and move them towards a full sexual situation.

Plaintiff also expects not to show that this occurred one, two or ten times, but in fact the numbers
are expected to be staggering. This conduct of Defendant Berkowitz did go so far as to become a
routine and habit and common place. * * *

* * * Plaintiff expects to show that this conduct was well known to other members of the
Defendant's law firm. Plaintiff expects to show that they either turned a blind eye to this or
treated it as a joking type matter. In any event, they did nothing to attempt to correct this
ongoing situation. 23

In the context of Brett's request for disclosure, the mere revelation of the names of women whom
Berkowitz represented would reveal the confidential communication that these female clients
were seeking advice concerning a divorce.

Matters involving divorce and domestic relations law are private concerns. Those involved may
wish to keep confidential both the fact that they are involved in such matters and the information
necessarily disclosed in the pursuit thereof. This privacy concern is evidenced by the safeguards
followed in the Family Court regarding the general prohibition against the public disclosure of its
records.24

Given the domestic relations emphasis of Berkowitz' law practice and the context of Brett's
inquiry, compelling the answers at issue here would divulge facts that Berkowitz' other clients
intended to keep confidential. The revelation of client identities in response to Brett's request
for discovery would disclose simultaneously that those female clients were either considering
divorce or in need of advice in a domestic relations matter. Because of the privacy interests of
clients seeking advice in those areas, the disclosure of their identities would be a violation of the
attorney-client privilege.

Delaware Rules of Evidence 404(b) and 406

The requested discovery in this case was objectionable on the additional ground that it was
neither admissible nor likely to lead to the discovery of admissible evidence. Plaintiff asserts
that the contested interrogatory and deposition questions were directed toward confirming
Berkowitz' relationships with third party clients and toward discovering “additional witnesses
who will testify to same.” The disclosure requested by plaintiff was not calculated to lead to the
discovery of information different in nature from the information actually sought. Accordingly,
we focus our inquiry on the admissibility of the evidence that was the subject of Brett's motion to
compel.

Brett argues that evidence of Berkowitz' prior sexual advances toward his clients is admissible
under Delaware Rules of Evidence 404(b) and 406.25 Because the operation of these rules is
limited to specified circumstances, we review the application of each to this particular case.
Rule 404(b) allows for the admissibility of “other wrongs or acts” in civil cases for purposes other
than to show propensity.26 The key to whether or not evidence of other acts is admissible under
the enumerated purposes of Rule 404(b) lies in the relationship that such evidence has to the
ultimate fact or issue in the trial.27 For example, if an ultimate fact (such as identity or mistake)
has been placed in issue, evidence of similar conduct toward other persons may be offered to
disprove such contentions.28

Brett argues that evidence of Berkowitz' relations with previous clients is admissible under Rule
404(b) as relevant to her claim for an intentional tort to show motive, intent, plan and absence of
mistake or accident. The various purposes for which Brett offers this evidence, however, do not
speak to the issues at hand, as defined by the nature of her claim and the circumstances of this
case.

Plaintiff's claim raises the following concerns:   (1) the nature of Berkowitz' behavior;   (2)
whether or not his behavior was intentional;   and (3) the severity of Brett's reaction. Whether
or not Berkowitz had motives of sexual gratification or establishing power over his clients is
irrelevant to such concerns. Furthermore, to the extent Brett is able to establish Berkowitz'
behavior toward her, the requisite intent may be inferred from that behavior, and “no evidential
purpose is served by proof that the defendant committed other intentional [acts] of the same
type.”  29

Similarly, any alleged evidence that Berkowitz had prior relations with other clients is not
admissible to prove the presence of a plan or scheme within the meaning of Rule 404(b). For
prior acts to form part of a common plan, they must be so related to the present conduct as to be
crucial to a full understanding of that conduct.30 Mere repetition of sexual behavior is not
evidence of a plan or scheme and may not be admitted under that exception.31 Finally, Berkowitz
is not contending that his conduct resulted from mistake or accident. Thus, those elements are
not in issue. In light of the nature of Brett's cause of action, the evidence she sought in her
motion to compel does not fit any proffered exception in Rule 404(b). Instead, the evidence falls
squarely within the category of prohibited character evidence. Accordingly, we hold that
plaintiff's motion to compel was properly denied with respect to her claim of intentional infliction
of emotional distress.

Brett also argues that evidence of Berkowitz' prior relations with clients is admissible under Rule
406 on the ground that it constitutes habit. We find that this argument misconstrues the nature
of habit evidence. To be probative, evidence presented under Rule 406 must consist of specific,
“semi-automatic” conduct that is capable of consistent repetition.32 Berkowitz' alleged sexual
behavior toward his clients, in that it entails some amount of judgment and decisionmaking, is
too complex and is susceptible to too much variation to qualify as habit evidence. Insofar as
Berkowitz' alleged prior conduct is being presented to show that he acted in conformity with a
certain character, it is inadmissible under Rule 404(b).33

Punitive Damages

The information requested by Brett does not fall within the parameters of allowable discovery
under Rule 26(b) with respect to her claim for intentional tort. Certain cases evidencing willful
misconduct and reckless disregard on the part of a tortfeasor may warrant an award of punitive
damages. In some circumstances, the reckless indifference necessary for such an award “also
may be inferred from evidence of the defendant's prior behavior toward persons not the eventual
plaintiff.”  34 Although there are cases in which evidence of a defendant's prior behavior toward
other persons is relevant and discoverable with respect to the issue of punitive damages, this is
not such a case.

In light of our decision here that the requested information would impermissibly reveal the
identity of nonparty clients and allow inferences that are normally the subject of confidential
communications, the discovery requested by Brett was privileged and properly disallowed by the
Superior Court for purposes of punitive damages as well as for purposes of the underlying claim. 35

The Exclusion of Brett's Expert Witness

Plaintiff's final issue on appeal concerns the exclusion of the testimony of her legal malpractice
expert. In medical malpractice cases, Delaware statutory and case law have required that expert
witnesses be familiar with the applicable standard of care in the locality where the alleged
malpractice occurred.36 Plaintiff argues that, in the absence of an analogous statute addressing
expert witnesses and legal malpractice claims, the Superior Court erred by excluding the
testimony of Neil Hurowitz on the ground that Hurowitz, despite his substantial experience and
credentials, was not sufficiently familiar with the standard of care required of lawyers in the State
of Delaware.

The requirement that an expert witness be familiar with community standards in medical
malpractice cases is founded on the desire to eliminate “wandering experts” who testify in
mercenary fashion.37 Although competency requirements are not designed to preclude all
testimony from out-of-state experts, expert witnesses must be “well acquainted or thoroughly
conversant” with the degree of skill ordinarily employed in the local community. 38 In cases
where an expert is familiar with a different locality where the standard of care is identical to that
observed in the relevant Delaware locality, another expert may provide bridging testimony to
reconcile the two standards.39

We hold that the policies underlying the requirement that medical malpractice experts be
competent to testify concerning the standard of skill and care ordinarily employed in the relevant
community apply equally to experts in legal malpractice cases.40 Here, the Superior Court ruled
that Hurowitz' knowledge of Delaware law did not automatically provide the requisite familiarity
with the standard and degree of skill applicable to Delaware lawyers. In the absence of any
showing of such familiarity, and without bridging testimony to harmonize the standard of care in
Hurowitz' locality with that of Delaware, we hold that the expert testimony was properly
excluded.

Conclusion

The judgment of the Superior Court is affirmed.