Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-29-2005

Marino v. Richards Layton
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4367




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Recommended Citation
"Marino v. Richards Layton" (2005). 2005 Decisions. Paper 34.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/34


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                                                  NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                       No. 04-4367


                 KENNETH J. MARINO,

                                         Appellant

                             v.

           RICHARDS LAYTON & FINGER;
           STEPHEN E. HERRMANN, Esquire


        Appeal from the United States District Court
                  for the District of Delaware
                (D.C. Civil No. 04-cv-00007)
        District Judge: Honorable Gregory M. Sleet


        Submitted Under Third Circuit LAR 34.1(a)
                   December 8, 2005

Before: RENDELL, FISHER and GREENBERG, Circuit Judges.

                (Filed: December 29, 2005)




                OPINION OF THE COURT
RENDELL, Circuit Judge.

      Kenneth J. Marino appeals the District Court’s grant of a motion to dismiss, which

disposed of his case against the law firm of Richards, Layton & Finger (“RLF”), and

Stephen Herrmann, an attorney at that firm. The District Court held that Marino failed to

establish a claim against Herrmann, and, therefore, that his respondeat superior claim

against RLF also failed. We will affirm.1

      Marino’s claim rests on his contention that Herrmann breached a fiduciary duty to

him. Marino, who was a partner at the law firm of Blank Rome Comisky and McCauley

LLP from 1997 until late 2000, concentrated his practice on banking law. During that

time he represented Cross County Bank (“CCB”) and its affiliate Applied Card Systems

(“ACS”). On September 11, 2000, Marino entered into an employment agreement with

CCB/ACS. Marino left Blank Rome and began working as general counsel for

CCB/ACS on October 1, 2000. Approximately four months later, CCB/ACS terminated

Marino’s employment. Marino attributes his termination to a “smear campaign”

conducted by Hermann.

      On January 25, 2002, Marino filed a wrongful termination complaint against CCB,

ACS, and Rocco A. Abessinio, Chairman and CEO of CCB/ACS. Marino later settled

the suit, entering into an (undated) Settlement Agreement and Mutual General Release.

      The critical inquiry before the District Court, and on appeal, is whether Marino has


      1
        The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. We have
jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

                                            2
established a cognizable claim. Marino has failed to establish any common law or

statutory basis for the alleged fiduciary duty owed him by Herrmann, but relies instead on

the duty imposed by the Delaware Lawyers’ Rules of Professional Conduct. However,

the Delaware Lawyers’ Rules of Professional Conduct, by its own terms, does not create a

basis for civil liability. See Delaware Lawyers’ Rules of Professional Conduct, Preamble,

¶ 20 (“Violation of a Rule should not itself give rise to a cause of action against a lawyer

nor should it create any presumption in such a case that a legal duty has been breached....

[The Rules] are not designed to be a basis for civil liability.”). Therefore, Marino’s action

must fail.

       As an alternate and independent basis for dismissing this action, we also note that

Marino’s claim is barred by the plain terms of the settlement agreement and release,

which specifically names Herrmann.2

       Because Marino has failed to state a cognizable claim against Herrmann, his

respondeat superior claim against RLF must also be dismissed. Accordingly, we will

affirm the District Court’s order to dismiss.




       2
        The District Court did not rule on this basis, but the language of the release seems
to clearly preclude this claim. Appellee so argued in its brief on appeal, and Appellant
did not refute it in his reply brief.

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