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In re Member of Bar of the Supreme Court of Delaware

Supreme Court of Delaware

March 14, 2019

IN THE MATTER OF A MEMBER OF THE BAR OF THE SUPREME COURT OF DELAWARE: DONALD C. VAVALA, III, Respondent.

          Submitted: February 3, 2019

         Board Case No. 113845-B

          Deirdre A. McCartney, Esquire, Chair

          William T. Deely, Esquire.

          Before STRINE, Chief Justice; VALIHURA and SEITZ, Justices.

          ORDER

          Leo E. Strine, Jr. Chief Justice.

         It appears to the Court that:

         (1) 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.

         (2) The 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.

         NOW, 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.

         REPORT AND RECOMMENDATONS OF THE HEARING PANEL

         Pending 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.

         On 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 ("Rules").

         Procedure Background

         On 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.

         For the 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.

         Facts

         The 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 ___."

         In 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.

         Respondent 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.

         On 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.

         During 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.

         The 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.

         Respondent 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.

         During 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.

         Respondent 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.

         Respondent 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.

         Respondent 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.

         Russell 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.

         Scott 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.

         David 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 ...


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