IN THE MATTER OF A MEMBER OF THE BAR OF THE SUPREME COURT OF DELAWARE: DONALD C. VAVALA, III, Respondent.
Submitted: February 3, 2019
Case No. 113845-B
Deirdre A. McCartney, Esquire, Chair
William T. Deely, Esquire.
STRINE, Chief Justice; VALIHURA and SEITZ, Justices.
Strine, Jr. Chief Justice.
appears to the Court that:
This is a lawyer disciplinary proceeding. On January 14,
2019, a panel of the Board on Professional Responsibility
("the Board") filed its Report with this Court,
recommending that the respondent, Donald C. Vavala, III, be
suspended from the practice of law in Delaware for a period
of 15 months, retroactive to the date of Vavala's interim
suspension on May 3, 2018. Neither the Office of Disciplinary
Counsel ("ODC") nor Vavala has filed any objections
to the Board's report.
Court has considered the matter carefully. Vavala admitted
the ethical violations alleged in the ODC's petition
against him. The Board carefully considered Vavala's
ethical violations, his knowing state of mind, the potential
injury and actual injury, the presumptive sanction, and all
of the applicable aggravating and mitigating factors. Under
the circumstances, we find the Board's recommendation of
a 15-month suspension to be appropriate. We therefore accept
the Board's findings and recommendation for discipline.
THEREFORE, IT IS ORDERED that the Board's Report filed on
January 14, 2019 (attached hereto) is ACCEPTED. Donald C.
Vavala, III is hereby SUSPENDED from the practice of law in
Delaware for a period of 15 months beginning May 3, 2018.
Vavala shall pay the cost of the disciplinary proceedings.
The Office of Disciplinary Counsel shall disseminate this
Order in accordance with Rule 14 of the Delaware Lawyers'
Rules of Disciplinary Procedure.
AND RECOMMENDATONS OF THE HEARING PANEL
before a panel of the Board on Professional Responsibility
(the "Board") is a Petition for Discipline filed by
the Office of Disciplinary Counsel (the "ODC") in
Board Case No. 113845-B (the "Petition") against
Donald C. Vavala, III, Esquire ("Respondent"), a
member of the Bar of the Supreme Court of the State of
Delaware. The Petition alleged violations of Rules 8.4 (b)
and 8.4 (d) of the Delaware Lawyers' Rules of
Professional Conduct. Respondent, through his counsel,
Charles Slanina, Esquire, filed an Answer to the Petition
(the "Answer") on August 23, 2018 admitting all of
the allegations contained in the Petition.
November 15, 2018, a panel of the Board on Professional
Responsibility, Deirdre A. McCartney, Esquire, Chair, William
T. Deely, Esquire and Dr. Nisha Lodhavia ("the
Panel") held a joint liability and sanction hearing on
the petition for discipline filed by the Office of
Disciplinary Counsel (ODC) in the above-captioned matter.
Richard L. Williams, Esquire, as special counsel to the
Office of Disciplinary Counsel, presented the petition for
ODC. Charles Slanina, Esquire represented Donald C. Vavala,
III, ("Respondent"). The Panel found that
Respondent violated Rules 8.4 (b) and 8.4 (d) of the Delaware
Lawyers' Rules of Professional Conduct
November 5, 2018, prior to the hearing, Counsel for ODC,
Respondent and panel chair held a pre-hearing teleconference
to discuss the upcoming hearing. At the request of the
parties, a joint hearing was scheduled for both the liability
and sanctions portions. At the Liability portion of the
Hearing, the Panel received into evidence a joint exhibit
book. The Panel also heard testimony from the Respondent.
Following the liability portion of the hearing, the panel
concluded that Respondent had violated all of the counts in
the petition for discipline. During the sanctions portion of
the hearing, the Panel heard testimony from the Respondent,
Thomas Foley, Esquire, Russell Stokes Nolte, Esquire, Scott
McDerby, David E. Wilks, Esquire, Timothy Cairns, Esquire,
and Carol P. Waldhauser. After the sanctions portion of the
hearing, counsel for the parties presented closing arguments.
The record was closed on November 15, 2018.
reasons stated below, the Panel found Respondent violated
Rules 8.4 (b) and 8.4 (d) by committing a criminal act that
reflects adversely on the lawyer's honesty,
trustworthiness or fitness as a lawyer in others respects by
pleading guilty to carrying a concealed dangerous instrument
(2 counts) in violation of 11 Del. C. § 1443,
Driving Under the Influence of Alcohol in violation of 21
Del. C. § 4177(a) and Illegal Possession of a
Controlled Substance (Adderall) in violation of 16 Del. C.
§ 4716 (d) and by engaging in conduct prejudicial to the
administration of justice by committing criminal acts that
reflect adversely on his honesty, trustworthiness and fitness
as a lawyer.
record, in this proceeding, consists of the testimony of
witnesses at the hearing, exhibits submitted in connection
with the hearing and other submissions of the parties. The
transcript of the liability and sanctions portion of the
hearing is cited hereinafter, as "Tr. At ___." At
the liability and sanctions portion of the hearing, the
parties admitted joint exhibits. The joint exhibits admitted
at the liability portion of the hearing are cited
hereinafter, as "Ex at ___."
Respondent's Answer, he admitted all of the violations
alleged in the Petition. In addition, the Panel received
testimony from the Respondent and exhibits relating to
factual circumstances surrounding the violations. The
exhibits consisted of 1) ODC's Petition for Interim
Suspension (April 24, 2018) with exhibit A; 2)
Respondent's Answer to the Petition for Interim
Suspension (April 29, 2018) with exhibits 1-7; 3) Interim
Suspension Order (May 3, 2018); 4) ODC's Petition for
Discipline (August 6, 2018) with exhibits A-D; 5)
Respondent's Answer to the Petition for Discipline
(August 23, 2018); 6) Erik Underhill, M.D.'s Medical
Records; 7) Robin-Belcher-Timme Psy.D Evaluation Report (May
7, 2018); 8) Alice O'Brien MS, NCC, LPCMH Medical
Records; 9) Aaron Alfano Psy.D Progress Notes (May 18,
2018-September 28, 2018); 10) DE-LAP records; 11) Delaware
Department of Correction Probation and Parole Records; 12)
Concealed Carry Course documents; 13) Memorandum of
Understanding; and 14) Court of Common Please Plea Agreement.
was admitted to the Bar of the Supreme Court of Delaware in
2015. Petition and Answer ¶1. Respondent was engaged in
the private practice of law with the law firm of Wilks,
Lukoff & Bracegirdle, LLC. Petition and Answer ¶ 2.
On or about April 14, 2018, Respondent was charged with
Carrying a Concealed Deadly Weapon in violation of 11 Del. C.
§ 1442 (felony); Possession of Firearm while Under the
Influence in violation of 11 Del. C. § 1460;
Driving a Vehicle Under the Influence of Alcohol in violation
of 21 Del. C. § 4177; Tuning a Vehicle at
Intersection Other than required by Traffic Control Device in
violation of 21 Del. C. § 4152; Inattentive
Driving in violation of 21 Del. C. § 4176;
Failure to Remain within a Single Lane in violation of 21
Del. C. § 4122; Possession of a Weapon in a
Safe School Zone in violation of 11 Del. C. §
1457 (felony); Possession of a Controlled Substance without a
Prescription in violation of 16 Del. C. § 4763; and
Possession of a Semi-Automatic Firearm by Person Who
Possesses Controlled Substances in violation of 16 Del C.
§ 4763 (felony). Petition and Answer ¶ 3.
April 24, 2018, ODC filed a Verified Petition for Interim
Suspension. Petition and Answer ¶ 6. On May 3, 2018, the
Delaware Supreme Court suspended Respondent from the practice
of law pending disciplinary proceedings. Petition and Answer
¶ 6. On May 22, 2018, Respondent entered a
guilty plea to the following misdemeanor offenses: carrying a
concealed dangerous instrument (2 counts) in violation of 11
Del. C. § 1443, Driving Under the Influence of
Alcohol in violation of 21 Del. C. § 4177(a),
and Illegal Possession of a Controlled Substance (Adderall)
in violation of 16 Del. C. § 4716 (d). See Petition and
Answer ¶ 8 and Ex. at 14. In the Answer to the Petition,
Respondent admitted violations of Rules 8.4 (b) and 8.4 (d).
Petition and Answer ¶ 14 and 16.
the liability phase of the hearing, Respondent testified as
to the factual circumstances that lead to the violations. Tr.
at 16-40. Respondent indicated that on the day in question he
went to a party after work and then to a couple of bars in
Trolley Square and then to Famous Joe's bar in Branmar
Shopping Center. Tr. at 16-17. He admitted that he consumed a
number of alcoholic beverages that day and consumed alcohol
at the various locations. Tr. at 17. He testified that he was
pulled over while driving home. Tr. at 17. He further
testified that the police found two loaded firearms in a bag
on the floor on the front passenger side of the vehicle. Tr.
at 17. He indicated that the police also found six Adderall
pills in a Ziploc bag in the car. Tr at 18.
police arrested Respondent and obtained a warrant and
Respondent's blood was drawn and it had a blood alcohol
content of .18. Tr. at 18. Respondent did not have a
prescription for the Adderall. Tr. at 19. Respondent
indicated he entered into a plea agreement; pleading guilty
to two counts of carrying a concealed dangerous weapon, one
count of driving under the influence of alcohol, and one
count of illegal possession of a controlled substance. Tr. at
21 and 22, Exhibit 4, sub attachment D. Respondent indicated
that the guns were in his vehicle because he was an avid
target shooter and intended to go to the range after work.
Tr. at 27. Respondent further indicated that he usually
empties his weapons ammunition at home prior to putting guns
in his vehicle and he uses range ammunition while at the
range. Tr. 27-28. He admitted that he was in a hurry to get
to work that morning and failed to remove the ammunition at
home prior to placing the guns in his car. Tr. 27-28.
testified he took Adderall on the day of his arrest in the
morning and may have taken more at some point later that
evening. Tr. at 30-31. Respondent further testified as to his
history of Adderall usage and admitted that the Adderall
found on him at the time of the arrest was purchased from a
customer at a bar where he used to bartend; it was not
prescribed. Tr. at 32, He was prescribed Adderall one time in
2009, for a period of thirty days. After that time he
acquired it illegally without a prescription. Tr. 33-35.
Respondent indicated that he had used it on multiple
occasions without a prescription, Tr. at 34.
the sanctions phase of the hearing, Thomas Foley, Esquire
testified on behalf of the Respondent. Mr. Foley was admitted
to the Delaware Bar in 1990 and practices in criminal
defense. Tr at 44. Mr. Foley met Respondent because he was
co-counsel with a partner at the law firm where Respondent is
employed in a large complicated case involving the defense of
a former executive at Wilmington Trust. Tr. at 45. Mr. Foley
worked with the Respondent for many hours on an almost daily
basis leading up to the trial and then on a daily basis once
the two-month trial started over the course of that case. Tr.
at 45-46. Prior to the events leading up the arrest, the
legal team which included Respondent had spent a lot of time
working on a Motion for a Judgment of Acquittal in the case
and had not gotten a lot of sleep. Tr. 48. Mr. Foley did not
observe Respondent impaired during that time period. Tr. at
48-50. Mr. Foley later represented him in his criminal
defense of the charges leading to the present disciplinary
matter and assisted him with negotiating a plea. Tr. at
50-51. Mr. Foley indicated that Respondent has been compliant
with the terms of his plea arrangement. Tr. at 54. In Mr.
Foley's opinion, the question of whether or not
Respondent was carrying a concealed deadly weapon was a close
factual question. Tr. 51-54. Mr. Foley testified that he was
very impressed with Respondent's character and the way
that he took full responsibility for his actions and was
taking measures to address them. Tr. 55-56.
testified again during the sanctions phase of the hearing.
Respondent admitted that he had a drinking problem prior to
the events leading to the arrest and had self-imposed periods
of sobriety. Tr. 86-88 and 186-187. Respondent admitted that
he used Adderall without a prescription on more than one
occasion while he was working as an attorney. Tr. 90-91 and
185-186. Respondent admitted that he should not have
transported the firearm loaded and did not possess a
concealed weapon permit. Tr. 93-94 and 189-190. Respondent
testified that in the days leading up to the arrest, he had
worked long hours without much sleep. Tr. 99. He admitted
that he had consumed Adderall the day before the arrest and
on the day of the arrest. Tr. 99. Respondent admitted that
the loaded firearm remained in the vehicle and even though he
believed the bag was latched, the police officer was able to
easily open the bag. Tr. 100-101. Respondent indicated that
he consumed a couple of swigs of Fireball and a few beers at
the party around 5:00 pm. Tr. at 103. Respondent testified
that he took a second Adderall on the day of the arrest after
he started drinking. Tr. 103-104.
testified that after he left the party around 7:00 pm he
drove and parked his car to go to bars in the Trolley Square
area. Tr. at 111-112. Respondent indicated that he drank
alcoholic beverages at multiple locations in Trolley Square
Tr. 113-114. Respondent testified that he left the Trolley
Square area and then drove his car to Famous Joe's bar in
the Branmar Shopping area around 9 or 10. Tr. 115-116.
Respondent indicated that he had several more alcoholic
beverages at Famous Joe's bar and that he drove his car
around 2:00 am to return home. Tr. 116-117.
testified that he is very remorseful for his actions. Tr.
197-200. Respondent testified that he has been actively
participating in his recovery and has followed the
recommendations of DE-Lap. Tr. 193-196. Respondent has no
prior disciplinary history. Tr. at 196. Respondent testified
that he has been cooperative with the Office of Disciplinary
Counsel. Tr. at 196-197.
Stolkes Nolte, Esquire testified on behalf of Respondent. Mr.
Nolte works at the law firm that employed Respondent at the
time of his arrest and that continues to employ Respondent.
Tr. 122. Mr. Nolte interacted with him during the Wilmington
Trust trial on an almost daily basis and was pleased with his
work performance. Tr. 123-124. Mr. Nolte never witnessed
Respondent impaired while he was working for him. Tr. at 124.
Mr. Nolte has a favorable impression of Respondent's
character and abilities as a member of the Delaware Bar. Tr.
125. Mr. Nolte indicated that Respondent has been willing to
accept responsibility for his actions and to take measures to
address his failures. Tr. 126-127.
McDerby also testified on behalf of Respondent. Mr. McDerby
met Respondent in connection with his efforts to address his
addiction issues. Tr. 129. Mr. McDerby indicated that
Respondent has been an active participant in their group to
address addiction and recovery and has participated at least
3-4 times a week over the last 7 months. Tr. 130-131. Mr.
McDerby testified that he has served as Respondent's
mentor in the process and that the Respondent has remained
very committed and dedicated to maintaining his sobriety. Tr.
131-132. Mr. McDerby indicated that Respondent is extremely
remorseful. Tr. 133. Mr. McDerby testified that he finds
Respondent to be a person of integrity and who is willing to
accept responsibility for his actions. Tr. 134.
E. Wilkes, Esquire also testified on behalf of Respondent.
Mr. Wilkes' firm employs Respondent. Tr. at 137. During
the time period that Respondent has been employed, Mr. Wilkes
worked with Respondent and interacted with him frequently, if
not daily then several times a week. Tr. 138. Mr. Wilkes
testified that Respondent was an extraordinarily talented
young lawyer who was very reliable and hard working. Tr.
138-139. Mr. Wilkes never observed Respondent as impaired
during the time period that he worked with him. Tr. 141. Mr.
Wilkes testified that Respondent has been very forthcoming
about the arrest and the events leading to the arrest and has
been very remorseful. Tr. 142-145. Mr. Wilkes' firm
continued to employ Respondent as a law clerk after his
arrest and ...