In re a Member of the Bar of the Supreme Court of the State of Delaware: Howard

765 A.2d 39, 2000 Del. LEXIS 460
CourtSupreme Court of Delaware
DecidedNovember 9, 2000
DocketNo. 240, 2000
StatusPublished
Cited by1 cases

This text of 765 A.2d 39 (In re a Member of the Bar of the Supreme Court of the State of Delaware: Howard) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re a Member of the Bar of the Supreme Court of the State of Delaware: Howard, 765 A.2d 39, 2000 Del. LEXIS 460 (Del. 2000).

Opinion

PER CURIAM.

This is a lawyer disciplinary proceeding. A panel of the Board on Professional Responsibility (Board) issued its final report (Final Report) with regard to a single charge of professional misconduct involving the respondent, Kevin M. Howard. Following a hearing on the charge, the Board adopted the stipulation of facts presented jointly by Howard and the Office of Disciplinary Counsel (ODC). The Board also approved the parties’ joint recommended sanction consisting of a two year suspension, retroactive to January 21, 1998, plus a two year period of probation, upon Howard’s reinstatement, with certain limitations on his right to practice law. The parties have indicated no objections to the Board’s Final Report.

After careful consideration, the Court has determined that the Board’s findings of fact should be accepted. The Court has further determined that the appropriate sanction is a three year suspension retroactive to January 21, 1998. Upon the expiration of that three year period, Howard may apply for reinstatement as a member of the Delaware Bar. If Howard seeks reinstatement, a panel of the Board should determine at that time whether reinstatement is appropriate and, if appropriate, whether conditions should attach.

Stipulated Facts1

Howard was admitted to the Delaware Bar in 1983. Until his interim suspension on January 21, 1998, Howard was a solo practitioner in Dover, Delaware. On January 9, 1998, Howard was arrested and formally charged with the commission of four drug-related felony offenses. Howard’s use of cocaine in January 1998 was the result of a relapse in Howard’s recovery from cocaine addiction. Howard has not used cocaine since that date. Howard has neither purchased nor attempted to purchase drugs since that date. From time to time during his interim suspension, Howard submitted to random drug tests, which did not detect any drug use.

On January 13, 1998, Kenneth J. Young, Esquire and Charles E. Whitehurst, Esquire were appointed as Joint Receivers of Howard’s law practice by the Delaware Court of Chancery in anticipation of Howard’s interim suspension.2 On January 21, 1998, Howard was suspended from the practice of law on an interim basis by this Court. The grounds for interim suspension were that Howard had “been charged by the State authorities with serious crimes and [had] possibly thereby committed serious violations of the Delaware Lawyers’ Rules of Professional Conduct, and that such conduct pose[d] a substantial threat of irreparable harm to his clients, his prospective clients, and the orderly administration of justice.”3

On February 22, 1999, Howard entered a plea of guilty to one count of criminal solicitation in the third degree4 and one count of possession of cocaine.5 As a result of his plea, Howard was convicted of two drug-related misdemeanors. Howard was sentenced on the solicitation charge to one year at Level V incarceration, suspended for one year at Level III probation. On the possession charge, Howard was sentenced to one year at Level V incarceration suspended for one year at Level II probation. Howard also was or[41]*41dered to perform fifty hours of community service to aid in drug education efforts in Kent County. Howard successfully complied with all terms and conditions of his criminal probation. He was released unconditionally from Department of Correction supervision on April 4, 2000.

Since February 1999, Howard has been in therapy with Edward S. Wilson, III, Ph.D. Initially, Howard had weekly appointments with Dr. Wilson. Thereafter, appointments for therapy were every other week. As of May 13, 1999, Dr. Wilson stated his professional opinion that Howard completed the “formal” portion of his substance abuse treatment component. Nevertheless, therapy with Dr. Wilson has continued. Dr. Wilson also recommended that Howard remain active in a 12-step group.

Howard was cooperative with the Joint Receivers. No clients or creditors of the practice suffered financial harm. The Receivership Final Accounting was filed with the Court of Chancery on January 12, 2000. An Order was entered by the Court of Chancery on January 13, 2000 closing the receivership and relieving the Joint Receivers of any continuing responsibilities. Since January 31, 2000, Howard has been employed on a full-time basis as the Chief Deputy Clerk of the Court of Chancery for Kent County, a non-lawyer position.

Board’s Findings and Recommendations

Howard admitted, and the Board found, that his misconduct violated Delaware Lawyers’ Rules of Professional Conduct Rule 8.4(b). Rule 8.4(b) provides that it is professional misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”6 Howard engaged in criminal conduct in violation of Rule 8.4(b) by possessing and using cocaine in violation of 16 Del. C. § 4763, and by soliciting and requesting that another person sell drugs to Howard in violation of 11 Del. C. § 501. Howard further admitted that his criminal conduct reflects adversely on his fitness as a lawyer in violation of Rule 8.4(b).

The Board also adopted the parties’ stipulation as it related to aggravating and mitigating factors. Specifically, the parties stipulated that the following aggravating factors existed: (a) Howard engaged in a pattern of misconduct by using illegal drugs; and (b) Howard engaged in illegal conduct by using controlled substances.

The stipulated mitigating factors were: (a) Howard has no prior disciplinary record; (b) Howard’s conduct did not reflect a dishonest or selfish motive; (c) Howard suffered from personal or emotional problems; (d) there is medical evidence that Howard is affected by chemical dependency, and the chemical dependency caused the misconduct, and Howard’s recovery from chemical dependency is demonstrated by a meaningful and sustained period of successful rehabilitation, and the recovery arrested the misconduct and recurrence of the misconduct is unlikely; (e) other penalties and sanctions have been imposed on Howard; and (f) Howard has demonstrated remorse.

At the hearing, the Board heard testimony from three witnesses: Dr. Wilson; a former Vice Chancellor who was then sitting on the Court of Chancery;7 and How[42]*42ard himself. At the conclusion of the hearing, the Board expressed its intent to accept the parties’ stipulation and joint recommendation of sanctions. Ultimately, the Board submitted its Final Report recommending a two year suspension retroactive to January 21, 1998. The Board also recommended that several conditions be imposed upon Howard upon his reinstatement as a member of the Bar, including: (a) a two year public probation, during which Howard would be required to have both a practice monitor and an additional monitor from the Lawyers’ Assistance Program; and (b) a two year prohibition, following his two year probationary period, on forming a professional association for the practice of law with Elizabeth Rodriguez.

Rule Violation

The parties have not filed any objections to the Board’s Final Report. Nonetheless, this Court has an obligation independently to review the record and determine if there is substantial evidence to support the Board’s factual findings.

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Related

In Re Howard
765 A.2d 39 (Supreme Court of Delaware, 2000)

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Bluebook (online)
765 A.2d 39, 2000 Del. LEXIS 460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-a-member-of-the-bar-of-the-supreme-court-of-the-state-of-delaware-del-2000.