IN THE MATTER OF A MEMBER OF THE BAR OF THE SUPREME COURT OF THE STATE OF DELAWARE: S. HAROLD LANKENAU, Respondent.
Submitted: March 8, 2017
HOLLAND, VAUGHN, and SEITZ, Justices.
9th day of March 2017, it appears to the Court
This is a lawyer disciplinary proceeding. The Respondent, S.
Harold Lankenau is currently suspended from practicing law
for a period of eighteen months that commenced on February
22, 2016. On February 7, 2017, the Board on
Professional Responsibility filed a report with this Court
recommending that Lankenau's current eighteen month
suspension be extended for an additional six months. The
Board made that recommendation after it determined that
Lankenau's testimony during his prior disciplinary
hearing knowingly concealed unrelated ethical violations. A
copy of the Board's report is attached to this order.
Both the Office of Disciplinary Counsel and Lankenau have
filed objections to the Board's report.
The Court has considered the matter carefully. We find the
Board's recommendation of a suspension for an additional
six months to be appropriate. Thus, we accept the Board's
findings and recommendation for discipline and incorporate
the Board's findings and recommendation by reference.
THEREFORE, IT IS ORDERED that the Board's February 7,
2017 report is hereby ACCEPTED and Lankenau's current
eighteen month suspension is extended for an additional six
months. The Office of Disciplinary Counsel shall disseminate
this Order in accordance with Rule 14 of the Delaware
Lawyers' Rules of Disciplinary Procedure.
REPORT AND RECOMMENDATION
of the Board on Professional Responsibility, consisting of
Richmond L. Williams, Esquire, Chair, John L. Reed, Esquire
and Deborah L. Miller (the "Panel"), conducted a
hearing on November 17, 2016, regarding the counts in the
petition for discipline filed against Respondent. The Office
of Disciplinary Counsel was represented by Patricia Bartley
Schwartz, Esquire and the Respondent was represented by
himself. The transcript of the Hearing was filed on December
9, 2016, at which time the record on this matter closed.
pre-hearing conference was held by the Panel Chair on
November 1, 2016. The Respondent, at that time acknowledged
that he had not and would not answer the Petition.
Accordingly, the Panel Chair found that the allegations of
fact and charges in the Petition were deemed admitted.
Panel Chair, sua sponte, raised the issue of whether, by
admitting the allegations in the Petition,  Respondent had
admitted facts that supported a finding that he had also
violated Rule 3.3(a)(1) of the Delaware Lawyers' Rules of
Professional Conduct (the "Rules"), which states:
3.3 Candor toward the tribunal
lawyer shall not knowingly:
Make a false statement of fact or law to a tribunal or fail
to correct a false statement of material fact or law
previously made to the tribunal by the lawyer.
Panel Chair advised respondent of his procedural rights at
the hearing, which included his right to put on evidence and
make arguments regarding whether he also violated Rule
3.3(a), as well as put on evidence and make arguments
regarding what sanctions are appropriate for any violations
that the Panel should find, including the ability to offer
evidence in support of mitigating factors Respondent would
like the Panel to consider.
hearing, the Office of Disciplinary Counsel requested that
the Petition be deemed amended to include violations of Rule
3.3(a)(1) and Rule 8.4(c), based upon allegations in the
Petition that Respondent has admitted. The Panel granted this
request, recognizing that under Rule 15(b) of Delaware
Lawyers' Rules of Disciplinary procedure, "except as
otherwise provided by these Rules, the Rules of Civil
Procedure for the Superior Court of the State of Delaware
shall apply to the extent practicable.... " and that
pursuant to Rule 15(b) of the Superior Court Rules of Civil
Procedure (Amendments to conform to the Evidence) issues not
raised by the pleading may be treated as if they had been
raised by the pleadings if they are tried by express or
implied consent of the parties. Respondent did not object to
the pleadings being amended in this manner but indicated that
he did not agree that the evidence supported a finding that
he had violated Rules 3.3(a)(1) and 8.4(c) based upon a
failure to disclose all of the matters he filed in Delaware
courts at his previous disciplinary hearing.
Panel indicated that the hearing would be bifurcated, with
the first portion addressing the charges alleged in the
Petition, as amended, and the second portion addressing what
sanctions were appropriate for any violations found by the
in the first part of the hearing, the Panel took evidence on
the issue of whether there was clear and convincing evidence
to support a finding that Respondent had violated Rule 3.4(c)
(requiring a Delaware Office); Rule 3.3(a)(1) (requiring
candor to a tribunal);Rule 8.4(c) (prohibiting conduct
involving dishonesty, fraud, deceit or misrepresentation) and
Rule 8.4(d) (prohibiting conduct prejudicial to the
administration of justice).
2 of the Petition alleges that Petitioner was suspended from
practice on June 9, 2019 for violation of the Rules by the
Supreme Court in In re Lankenau, 138 A.2d 1151(Del.
2016). (Lankenau I). Paragraph 3 of the Petition
alleges that Respondent was terminated from the Lundy Law
Firm in September 2014 for taking firm funds. This misconduct
was one of the alleged forms of misconduct which formed the
basis of the disciplinary proceedings that resulted in the
suspension in Lankenau I. Paragraph 4 of the
Petition alleges that Respondent began practicing law in
Pennsylvania at the Kofsky Firm in December 2014 and that the
Kofsky firm did not have a Delaware office.
5 of the Petition alleges that the hearing in Lankenau
I was held on November 12, 2015.
6 of the Petition stated that Respondent had filed a
complaint in Superior Court in Kent County on September 2,
2015 on behalf of Amos and Jessica Pickens. Paragraph 7 of
the Petition alleges that Respondent had filed a complaint in
Superior Court in Kent County on November 9, 2015 on behalf
of Kawauan Chavis, et al., This was 3 days prior to the
Hearing in Lankenau I. By failing to respond to the
Petition, Respondent was deemed to have admitted these
allegations of fact.
8 of the Petition stated: "At the November
12th Hearing [leading to the decision in
Lankenau I], Respondent testified while working at
the Kolfsky firm he handled one Delaware case.
Respondent testified he served as local counsel on the
Medford Holmes case which was pending in the United States
Delaware District Court. See page 65 of the Hearing
Transcript attached as Exhibit 4." (footnote omitted,
hearing in this matter, ODC called Respondent who confirmed
that he began working at the Kofsky Law Firm in December
and that firm did not have a Delaware office. He confirmed
that, as of the time of the hearing in Lankenau 1,
he was still employed by that firm.He confirmed that he filed
the Pickens and Chavis complaints in Delaware Superior Court.
He further testified that although these were not his
matters, he told Mr. Kofsky that he needed to find an
attorney in Delaware to act as local counsel in order to be
able to file the suit.Nevertheless, when he was asked at the last
minute to file the complaints to avoid missing the statute of
limitations, he filed the complaints knowing he did not have
a Delaware office.
Court Civil Rule 90 requires members of the Delaware Bar to
maintain an office in Delaware in order to be able to
practice as an attorney in that Court. Respondent's
testimony establishes that he was aware of this requirement.
Knowing this requirement and that the Kofsky firm did not
have a Delaware office, Respondent nevertheless filed two
complaints in Delaware Superior Court. Under these
circumstances, we do not accept as an excuse that Respondent
was facing conflicting ethical obligations. There is no
evidence on the record to suggest that when asked by his
employer to file the complaints, ...