In re Howard, 240, 2000.

• Citation: 765 A.2d 39
• Decision Date: 09 November 2000
• Docket Number: No. 240, 2000.,240, 2000.
• Parties: In the Matter of a Member of the Bar of the Supreme Court of the State of Delaware: Kevin M. HOWARD, Respondent.
• Court: United States State Supreme Court of Delaware

765 A.2d 39

In the Matter of a Member of the Bar of the Supreme Court of the State of Delaware: Kevin M. HOWARD, Respondent.

No. 240, 2000.

Supreme Court of Delaware.

Submitted: May 26, 2000.

Decided: November 9, 2000.

Charles Slanina, Esquire of Tybout, Redfearn & Pell, Wilmington, Delaware, for Respondent. Andrea L. Rocanelli, Esquire, Wilmington, Delaware, for the Office of Disciplinary Counsel.

Before WALSH, HOLLAND, and BERGER, Justices.

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 ordered 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. § 4753, 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 Howard 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. We have made a careful and independent review of both the factual findings and the conclusions of law that are set forth in the Board's Final Report. We are satisfied that the record supports the Board's finding that Howard violated Rule 8.4(b). We now consider the appropriate sanction to be imposed given the particular circumstances of this case and given this Court's prior decisions in other relevant disciplinary cases.

Appropriate Sanction

This Court has exclusive authority and wide latitude in disciplining the members of our Bar.⁸ Thus, while the Board's recommendations on the appropriate sanction to be imposed are helpful, they are not binding on this Court.⁹ In formulating an appropriate sanction, this Court looks to the framework set forth in the ABA Standards for Imposing Lawyer Sanctions ("ABA Standards") and to relevant precedent.¹⁰

In making an initial determination of an appropriate sanction, the Court begins by examining three key factors: (a) the ethical duty violated; (b) the lawyer's mental state; and (c) the extent of the actual or potential injury caused by the lawyer's misconduct.¹¹ After weighing these three factors and making an initial determination of an appropriate sanction, the Court then will look at the aggravating and mitigating circumstances of the particular case to determine if the discipline should be increased or decreased.¹²

In this case, the record supports the following findings. First, Howard violated his duties to the general public and to the legal system by breaking the law and failing to maintain the public's trust and confidence as an officer of this Court. Howard's misconduct, however, did not implicate any duty to a particular client. Second, Howard engaged in intentional criminal acts for which he pled guilty to two misdemeanor charges. Intentional misconduct is the most culpable form of misconduct. Finally, while Howard's intentional misconduct may have severely undermined the public's confidence in the legal profession, his misconduct did not result in an articulable injury to any individual other than, perhaps, himself.

ABA Standards

The relevant ABA Standard addressing the appropriate discipline for a lawyer who has engaged in criminal conduct is Standard 5.1, which...