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In re Member of Bar of Supreme Court of Delaware

Supreme Court of Delaware

August 23, 2013

In the Matter of a Member of the Bar of the Supreme Court of Delaware RICHARD B. LYLE, III Respondent Board No. 2012-0107-B

Submitted: July 3, 2013

Board Case No. 2012-0107-B

Before STEELE, Chief Justice, BERGER and JACOBS, Justices.

ORDER

Jack B. Jacobs Justice

1. This 23rd day of August 2013, it appears to the Court that the Board on Professional Responsibility ("Board") has filed a Report on this attorney discipline matter pursuant to the Delaware Lawyers' Rules of Disciplinary Procedure. The Office of Disciplinary Counsel ("ODC") filed objections to the Board's Report, and the Respondent filed an answer to the ODC's Objections. The Court has reviewed the matter and concurs in the Board's Report. We adopt the Board's recommendation of a public reprimand and six-month suspension of the Respondent, Richard B. Lyle, II, Esquire ("Lyle").

2. Lyle was admitted to the Delaware Bar in 2006 and began work as an Assistant Public Defender in the Public Defender's Office ("PD") in 2007. On March 21, 2011, co-Defendant Ron S. Roundtree ("Roundtree") was arrested and charged with Attempted Murder in the First Degree, Robbery, and other related offenses arising out of a shooting. Wilmer Milton ("Milton") and three other co-Defendants were also charged. On March 24, 2011, a PD investigator interviewed Milton and summarized Milton's statements in a Client Information Form. In his statement, Milton accused Roundtree of the shooting that had occurred.

3. On March 30, 2011, Lyle began his representation of Roundtree. At some point during Lyle's representation, Roundtree accused Milton of shooting the victim. According to the Board Report, Lyle then searched the PD files to determine "whether Milton [had given] a statement to an []PD investigator. [Lyle] believed the statement would prove helpful in defending Roundtree. [Lyle] found Milton's statement in his []PD file, copied that statement (Client Information Form) and placed it in Roundtree's file." The next day, on March 31, 2011, Lyle "showed the Milton statement to Roundtree and/or discussed the content of Milton's statement . . . with Roundtree." Lyle's disclosure of Milton's statement to Roundtree violated Milton's attorney-client privilege and formed the basis for the ODC's Petition for Discipline against Lyle.

4. In a letter to the ODC, Lyle admitted that he had reviewed the other co-Defendants' files, made copies of all available co-Defendants' statements, and placed the statements in Roundtree's file. He also admitted that in doing so he had erred.

5. The Board found that Lyle had violated Rules 1.6(a), 1.8(b), 4.4(a), and 8.4(d) of the Delaware Lawyers' Rules of Professional Conduct ("Rules"), all of which Lyle admitted. The Board found, however, that Lyle did not violate Rule 8.4(c), under which "[i]t is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

6. The Board found that although Lyle had acted "knowingly" in obtaining and revealing Milton's statement to Roundtree, "[m]ere knowing conduct does not constitute a violation of Rule 8.4(c)." Quoting from In re Freebery[1] and the ABA Standards, the Board concluded that "knowledge" under the ABA Standards is "the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result."[2] Here, the Board found, Lyle tried to defend Roundtree zealously, but had no "intent" to engage in dishonest behavior. Therefore, the Board concluded, Lyle had not violated Rule 8.4(c).

7. The ODC contends that Lyle violated Rule 8.4(c), because his conduct was "dishonest." The ODC claims that dishonesty "does not require a purpose to deceive" and includes "false assertions, omissions and/or failure to correct, as well as conduct evidencing a lack of integrity and principle." The ODC contends that Lyle, despite lacking a specific intent to engage in dishonesty, violated Rule 8.4(c), and specifically relies on In re Pankowski[3] as authority on-point.

8. Lyle responds that even if Rule 8.4(c) does not require a showing of a specific intent to engage in dishonest behavior, at most he exercised "poor judgment" and never acted in violation of that Rule. Lyle further argues that In re Pankowski is factually distinguishable.

9. This Court has the "inherent and exclusive authority to discipline members of the Delaware Bar."[4] Although Board recommendations carry considerable weight, we are not bound by those recommendations.[5] We review the record independently to determine whether there is substantial evidence to support the Board's factual findings.[6] We review the Board's conclusions of law de novo.[7]

10. The Board's reliance upon In re Freebery[8] is misplaced, because that case concerned a Rule 8.4(b)—and not Rule 8.4(c)—violation. So also is ODC's reliance on In re Pankowski, [9] because the conduct at issue in Pankowski was an attorney's false signing and notarization of a pleading, despite the absence of any intent to deceive the court or to harm the client. That false notarization, by its very nature, bears a more direct relationship to Rule 8.4(c)'s "dishonesty, fraud, deceit or misrepresentation" requirement than did Lyle's conduct here.

11. Lyle's act of knowingly disclosing Milton's statement to Roundtree is distinguishable from our previous decisions that have found Rule 8.4(c) violations. As the Board itself highlighted, this Court has found Rule 8.4(c) violations where an attorney: 1) falsely signed a client's name and notarized a pleading, [10] 2) filed a mortgage application without disclosing an outstanding loan, [11] 3) failed to disclose prior ethical violations and sanctions to the Court, [12] and 4) knowingly made a false statement to a court.[13] Lyle's disclosure of Milton's statement to Roundtree is qualitatively distinguishable from these instances of "dishonesty, fraud, deceit or misrepresentation." We therefore conclude that the Board correctly found that Lyle violated Rules 1.6(a), 1.8(b), 4.4(a), and 8.4(d), and that he did not violate Rule 8.4(c).

NOW, THEREFORE, IT IS ORDERED that the Report filed by the Board on Professional Responsibility on May 6, 2013 (copy attached) is hereby APPROVED.

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