IN THE MATTER OF A MEMBER OF THE BAR OF THE SUPREME COURT OF THE STATE OF DELAWARE: DAVID E. WILKS, Respondent
Submitted June 23, 2014
Case Closed July 11, 2014.
This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.
Board Case No. 2012-0150-B.
Before STRINE, Chief Justice, HOLLAND and RIDGELY, Justices.
Leo E. Strine, Jr. Chief Justice
This 25th day of June 2014, it appears to the Court that the Board on Professional Responsibility has filed a Report in this matter as required by Rule 9(d) of the Delaware Lawyers' Rules of Disciplinary Procedure. Neither the Office of Disciplinary Counsel (ODC) nor the Respondent has filed any objections to the Board's Report. The Court has reviewed the matter under Rule 9(e) of the Delaware Lawyers' Rules of Disciplinary Procedure and approves the Board's Report.
NOW, THEREFORE, IT IS ORDERED that the factual findings contained in the Report filed by the Board on Professional Responsibility on June 12, 2014 (copy attached) are APPROVED. The recommendation of a public reprimand is ADOPTED with the following conditions:
(i) For a period of one year beginning July 1, 2014, the Respondent shall meet regularly with a practice monitor assigned by the Professional Guidance Committee of the Delaware State Bar Association.
(ii) The Respondent shall comply with any terms and conditions established by the practice monitor during the one-year monitoring period. The practice monitor shall file a written report with the ODC each quarter reflecting the Respondent's compliance with the practice monitor's conditions. Failure to comply with the practice monitor's conditions may subject the Respondent to further disciplinary proceedings.
(iii) The ODC is directed to file within ten days of the date of this Order the costs of the disciplinary proceedings. Thereafter, the Respondent is directed to pay all costs within thirty days.
BOARD ON PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF THE STATE OF DELAWARE
REPORT OF THE BOARD ON PETITION FOR DISCIPLINE
This is the report on proceedings instituted by the Petition for Discipline (the " Petition" ) filed by the Office of Disciplinary Counsel (" ODC" ) on February 5, 2014. The ODC seeks sanctions against David E. Wilks (" Respondent" ). A hearing was held on March 27, 2014 in the Supreme Court at 55 The Green in Dover, Delaware (" the Hearing" ). The members of the panel for the Board were Deirdre McCartney, Esquire, Deborah Armistead, and D. Benjamin Snyder, Esquire as Chair (the " Panel" ). Jennifer-Kate Aaronson, Esquire represented the ODC. Respondent was represented by Charles Slanina, Esquire.
I. The Violations Alleged Against Respondent
Respondent was admitted to the Bar of the Supreme Court of Delaware in 1989. (SF ¶ 1). At all times covered by the Petition, Respondent was engaged in the private practice of law. (SF ¶ 2). The Petition sets forth four counts alleging violations of four rules of Professional Conduct: Rule 1.1 (competent representation), Rule 1.3 (diligence and promptness), Rule 1.4 (keeping client reasonably informed), and Rule 8.4(c) (dishonest conduct). Respondent admits these four violations. (SF ¶ ¶ 1-4).
The alleged violations arise out of Respondent's representation of Craig and Valerie Sheets. Respondent represented the Sheets in connection with personal injury and property damage claims as a result of a noxious odor in their home caused by an improper application of a mold and mildew retardant by Waterseal, Inc. to the home's basement on January 11, 2006. (SF ¶ 3). The Sheets moved out of their home and stayed at a nearby hotel for various times over several months, and incurred cleaning, disposal and replacement charges for rugs, furniture, and various personal items damaged by the contamination. (SF ¶ 4). Extensive remedial measures paid for by Waterseal's insurance carrier failed to completely alleviate the Sheets' complaints. (SF ¶ 16).
On May 11, 2006, the Sheets retained Respondent to represent them with respect to their potential claims. (SF ¶ 5). The Sheets were referred to Respondent through a mutual friend. (Tr. at p. 40; 8-11). Respondent concluded that the Sheets did not have a viable personal injury claim, and that the only valid claim they had was for reimbursement of their out-of-pocket expenses. (SF ¶ 7). Respondent, however, never advised the Sheets of this fact, and never filed suit. (SF ¶ 6). Respondent testified at the Hearing that the reason he avoided informing the Sheets of the status of their case is that, through the course of the representation, he developed a personal relationship with Mr. Sheets, and he did not want to burden the Sheets with bad news during an already difficult time in their life. (Tr. at pp. 47-49). The statute of limitations for a personal injury action expired on January 11, 2008. (SF ¶ 8).
On April 16, 2008, Mr. Sheets emailed Respondent asking if his claims had been barred by an applicable statute of limitations. (SF ¶ 9). Respondent told Mr. Sheets that he had an agreement tolling all statute of limitations with defense counsel. ...