Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Member of Bar of Supreme Court of State of Delaware: Lankenau

Supreme Court of Delaware

March 9, 2017

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

          Before HOLLAND, VAUGHN, and SEITZ, Justices.

          ORDER

         This 9th day of March 2017, it appears to the Court that:

         (1) 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.[1] 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.

          (2) 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.

         NOW, 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

         A Panel 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.

         A 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.

         The Panel Chair, sua sponte, raised the issue of whether, by admitting the allegations in the Petition, [1] 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:

         Rule 3.3 Candor toward the tribunal

         (a) A lawyer shall not knowingly:

         (1) 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.

         The 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.

          At the 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.

         The 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 Panel.

         Violations Hearing.

         Accordingly, 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).

         Paragraph 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.

         Paragraph 5 of the Petition alleges that the hearing in Lankenau I was held on November 12, 2015.

         Paragraph 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.

         Paragraph 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, emphasis added).

         At the hearing in this matter, ODC called Respondent who confirmed that he began working at the Kofsky Law Firm in December 2014[2] and that firm did not have a Delaware office.[3] He confirmed that, as of the time of the hearing in Lankenau 1, he was still employed by that firm.[4]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.[5]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.

         Superior 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.[6] 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, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.