DOVER, Del. (Legal Newsline) – The Delaware Supreme Court sided with the Board on Professional Responsibility on March 9 to extend the suspension of attorney S. Harold Lankenau.
Lankenau had been suspended from practicing law for a period of 18 months, and the Board on Professional Responsibility filed a report with the Delaware Supreme Court recommending that the suspension be extended by six months.
According to court records, in testimony prior to his disciplinary hearing, Lankenau knowingly concealed unrelated ethical violations.
The board included attorneys Richmond L. Williams, John L. Reed and Deborah L. Miller. It conducted a hearing on Nov. 17, 2016, regarding the counts in the petition for discipline filed against Lankenau. Patricia Bartley Schwartz represented the Office of Disciplinary Counsel, and Lankenau represented himself.
During the hearing, Williams raised the issue of whether Lankenau had violated Rule 3.3 of the Delaware Lawyers’ Rules of Professional Conduct that states an attorney should “not knowingly make false statements 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.”
During the hearing, the board discussed evidence, including Lankenau’s alleged violations of Rule 3.4(c) (requiring a Delaware Office); Rule 3.3(a)(l) requiring candor to a tribunal; Rule 8.4(c), prohibiting conduct involving dishonesty, fraud, deceit or misrepresentation and Rule 8.4(d), which prohibits conduct prejudicial to the administration of justice.
According to court records, Lankenau was terminated from the Lundy Law Firm in September 2014 for taking firm funds. This was one of the allegations that served as the foundation for disciplinary hearings that led to his initial suspension in Delaware.
According to court records, Lankenau began practicing law at the Kofsky Firm in December 2014. That firm did not have a Delaware office.
At hearings for Lankenau’s initial suspension, it was discovered that while working at the Kofsky firm, he handled one Delaware case. He testified that he served as local counsel on a case that at the time was pending in the U.S. District Court of Delaware.
Lankenau acknowledged that he filed two complaints in Delaware Superior Court.
According to court documents, Lankenau also noted that while those were not his cases, he told officials at the firm that they needed to find an attorney in Delaware to act as local counsel in order to be able to file the suit.
However, when officials asked him 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.
According to Superior Court Civil Rule 90, members of the Delaware Bar are required to maintain an office in the state in order to be able to practice as an attorney in that court.
Despite knowing the firm did not have a Delaware office, Lankenau filed two complaints in the court.
The court found that there was no evidence to suggest that Lankenau tried to find local counsel.
Lankenau knew that he had filed the suits and during his disciplinary hearings claimed he did not intend to deceive the panel. However, he testified that he “gave a vague answer” that did not clearly reveal the issues.
In an attempt to justify his misstep, Lankenau said he was “overwhelmed and not thinking completely clearly” after testifying for about an hour.
Having been asked if he was practicing law in Delaware in any capacity after joining the Kofsky firm, the Supreme Court found that his testimony could only be viewed as evasive and deliberately incomplete.
In court records, Lankenau testified about the D.C. case and said he had told them to find different counsel, but he did not mention the Delaware complaints, which he should have done to provide a complete and accurate answer to the board to ensure it wasn’t left with a false impression.
False testimony includes both testimony that states information that is incorrect and testimony that is inaccurate or misleading because it is incomplete. He allegedly did nothing to supplement his incomplete and incorrect testimony or correct any incorrect impression his testimony may have created.
The board found that while an attorney isn’t expected to speak perfectly in every instance, when an attorney testifies before a board or tribunal, his or her testimony should be responsive, accurate and complete.
“Evasive or deliberately vague answers are inappropriate because they can be equally deceptive,” the board wrote. “We feel that the obligation of full candor is heightened in circumstances when the attorney has a personal stake in the outcome, such as a disciplinary hearing.”
Because of his inaccurate testimony, the Delaware Supreme Court ruled that the board handling his initial discipline did not have a complete understanding of his professional misconduct, nor could it consider the balance of mitigating factors to determine the sanctions he should fact for the infractions.
The court also determined that Lankenau engaged in conduct of dishonesty by not revealing the Delaware
Lankenau argued that additional penalties should include a public reprimand, not additional suspension.
The board suggested that a public reprimand may be appropriate if the violations were negligent. However, Lankenau’s violations were knowing.