VIRGINIA:



BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD



VSB DOCKET NO. 01-000-0920



IN THE MATTER OF EDWARD DELK,



PETITIONER.





ORDER OF RECOMMENDATION





On November 16, 2001, this matter came before the Disciplinary Board, consisting of William C. Boyce, Jr., Chester J. Cahoon, Jr., Karen A. Gould, Roscoe B. Stephenson, III and John A. Dezio, Chairman, on the Petition for Reinstatement by Edward Delk to reinstate his license to practice law in the Commonwealth of Virginia. Mr. Delk surrendered his license to practice law on December 15, 1989, while facing disciplinary charges.

The petitioner, Edward Delk, was represented by Rhetta M. Daniel, Esq. Richard E. Slaney, Assistant Bar Counsel, appeared for the Virginia State Bar. The hearing was transcribed by Donna T. Chandler, Court Reporter, Chandler & Halasz, P.O. Box 9349, Richmond, VA 23227, telephone (804)730-1222.

This matter is governed by Rule 13(J) of the Rules of Court, Part Six, Section IV. Pursuant to that provision, it is the petitioner's burden to show by clear and convincing evidence that he is a person of honest demeanor and good moral character and that he possesses the requisite fitness to practice law.

In addition to the testimony of the petitioner, the Board heard and considered the testimony of three witnesses who appeared on the petitioner's behalf: John H. Foster, D. Min, pastor of Shiloh Baptist Church; Larry Wayne Shelton, Esq., an attorney from the Tidewater area with the law firm of Shelton & Malone, P.C.; and Mr. Thomas G. Johnson, Jr., from the law firm of Wilcox & Savage. The Bar opposed the Petition for Reinstatement and submitted exhibits evidencing Mr. Delk's prior disciplinary record and charges that were pending at the time of his surrender.

The Board also reviewed the petition filed by the petitioner, the affidavit of the petitioner, the testimony and documentary exhibits presented, and letters from the community in response to the Bar's publication of the public hearing on Mr. Delk's Petition for Reinstatement. The Board considered the following factors in reaching its conclusion and recommendation to the Supreme Court as outlined by this Board In the Matter of Alfred L. Hiss, Docket No. 83-26, opinion dated May 24, 1984:

1. The severity of the petitioner's misconduct including but not limited to the nature and circumstances of the misconduct.

2. The petitioner's character, maturity and experience at the time of his disbarment.

3. The time elapsed since the petitioner's disbarment.

4. Restitution to clients and/or the Bar.

5. The petitioner's activities since disbarment including but not limited to his conduct and attitude during that period of time.

6. The petitioner's present reputation and standing in the community.

7. The petitioner's familiarity with the Virginia Rules of Professional Conduct and his current proficiency in the law.

8. The sufficiency of the punishment undergone by the petitioner.

9. The petitioner's sincerity, frankness and truthfulness in presenting and discussing factors relating to his disbarment and reinstatement.

10. The impact upon public confidence in the administration of justice if the petitioner's license to practice law was restored.

In order to assess factors 1 through 10 above, it is necessary to review the circumstances that gave rise to Mr. Delk's surrendering his license in 1989, as well as other disciplinary violations of which Mr. Delk had been found guilty. Mr. Delk had his license suspended in 1985 for three years for failure to disburse properly settlement proceeds from a 1981 real estate settlement. This suspension was stayed while Mr. Delk appealed the suspension to the Virginia Supreme Court. The Supreme Court upheld the suspension, and it became effective July 1, 1987. At the time of his surrender in December of 1989, Mr. Delk was facing additional charges concerning trust violations arising from two separate real estate closings (Lindsey and Jackson) occurring in the Spring of 1987, which were scheduled to be heard by a three-judge panel. In 1989, Mr. Delk was indicted on charges that he had willfully misapplied funds in settlement of the Lindsey real estate transaction in the Spring of 1987. He pled guilty to those charges in January of 1990.

The Board makes the following findings with respect to the Hiss factors enumerated as 1 through 10 above:

1. The severity of the petitioner's misconduct including but not limited to the nature and circumstances of the misconduct. The Board finds the charges pending at the time Mr. Delk surrendered his license to have been serious. Mr. Delk made multiple serious errors in judgment. He had a history of trust account violations and of being out of trust. Mr. Delk attributed being out of trust to his failure to reconcile the bank statements, despite having received his undergraduate degree in accounting. He recognized in 1982 that he had a problem with his trust account, yet the problems continued through 1987. Mr. Delk maintained, however, that he did not use the trust proceeds for his own benefit, however, he could not explain what happened to the missing funds. The Virginia Supreme Court in Mr. Delk's appeal of the three-year suspension found that he had, in fact, used funds from the account for payment of non-trust account matters for his benefit and not for the benefit of his clients. Mr. Johnson spoke eloquently in Mr. Delk's behalf and expressed his feeling that Mr. Delk had received onerous punishment for what was an accounting problem with no evidence of criminal intent. The Board was bothered by Mr. Delk's statement that he did not know what happened to the large amount that he was out of trust, considering that statement to be simply incredible.

2. The petitioner's character, maturity and experience at the time of his disbarment. Mr. Delk was 59-years old at the time of his disbarment. He had been practicing law since 1962. Based upon the evidence adduced at the hearing, Mr. Delk had a good reputation in his community at the time of surrender of his license.

3. The time elapsed since the petitioner's disbarment. The date of the Order accepting the surrender of Mr. Delk's license is December 20, 1989. Therefore, approximately twelve years has elapsed since Mr. Delk's license revocation. Mr. Delk is now 71-years old.

4. Restitution to clients and/or the Bar. Mr. Delk has made restitution to all clients and financial institutions effected by his actions, albeit part of the restitution was achieved after the Bank of the Commonwealth obtained a judgment against Mr. Delk in 1988.

5. The petitioner's activities since disbarment including but not limited to his conduct and attitude during that period of time. According to the testimony presented by the petitioner, Mr. Delk has been a responsible member of society since being disbarred. From December 1989 to December 1992, Mr. Delk served as a part-time consultant and developer of housing for the elderly and for low- and moderate- income families. During that time, he also served as a part-time independent contractor selling water filters. From December 1992 to March 1995, Mr. Delk was employed as a part-time instructor at Commonwealth College. From January 1994 to March 1995, Mr. Delk was employed as a paralegal by Holmes & Associates, P.C. Since then, Attorney James Winstead has employed Mr. Delk as a paralegal. He is also presently teaching paralegal courses part-time for Bryant & Stratton College (formerly known as Commonwealth College). Mr. Delk has not sought the restoration of his civil liberties.

6. The petitioner's present reputation and standing in the community. In addition to the three witnesses who testified on his behalf, Mr. Delk had numerous letters submitted on his behalf supporting his petition for reinstatement and speaking to his reputation and standing in the community. Mr. Delk is active in his church. He has stayed in the community in which he practiced law. By all accounts, he has a good reputation in his community. The witnesses who testified on behalf of Mr. Delk were uniform in their testimony regarding Mr. Delk's stellar reputation for truthfulness and veracity.

7. The petitioner's familiarity with the Virginia Rules of Professional Conduct and his current proficiency in the law. Mr. Delk has taken continuing legal education courses on Virginia law since being disbarred in 1989. The Board is satisfied that the petitioner established by clear and convincing evidence familiarity with the current Virginia Rules of Professional Conduct, and that he has maintained his knowledge of Virginia law.

8. The sufficiency of the punishment undergone by the petitioner. The Board considers the loss of Mr. Delk's license since 1989 not to be sufficient punishment for the specific misconduct that was pending at the time of his license surrender. The pattern and practice of his misconduct and the fact that he continued to commit trust account violations after being suspended in 1985 merited the loss of his license. The Board does not feel that the length of license revocation necessarily means that Mr. Delk has been rehabilitated and will practice as an ethical member of the Virginia State Bar. Mr. Delk had a reputation for honesty and truthfulness at the time that he committed these ethical violations.

9. The petitioner's sincerity, frankness and truthfulness in presenting and discussing factors relating to his disbarment and reinstatement. The Board found Mr. Delk to be sincere and frank in some of his testimony to the Board in discussing the factors relating to his license surrender and conviction on federal charges. There was a conflict between Mr. Delk's testimony and that of the persons involved in one of the real estate settlements in which disciplinary charges were pending at the time of his surrender. Mr. Delk testified that he had the Jacksons' permission to endorse their names to the settlement check. The Jacksons executed an affidavit in 1988 that they had not authorized anyone to endorse the checks. As mentioned above with regard to the first factor, the Board was bothered by Mr. Delk's statement that he did not know what happened to the large amount that he was out of trust, considering that statement to be simply incredible. With the exception of the Jackson real estate closing, Mr. Delk was remorseful about what he had done. Mr. Delk explained that he wanted his license reinstated so that he could return to the practice of law. He promised to scrutinize carefully his trust accounting and to never permit his accounts to go out of trust.

10. The impact upon public confidence in the administration of justice if the petitioner's license to practice law was restored. Letters received from citizens in the Tidewater area in response to the Bar's notification of the public hearing asked that Mr. Delk's law license be restored to him. Letters received from lawyers in the Tidewater were largely supportive of his reinstatement, with two exceptions from attorneys who felt that revocation due to trust account violations should never be the subject of reinstatement.

The Board recommends that Mr. Delk's license not be reinstated. The Board's opinion is that Mr. Delk's misconduct resulting in the surrender of his license was of a serious nature arising out of several separate incidents that occurred over a several-year period. His misconduct occurred several times, despite his prior involvement in the disciplinary process and having been suspended for trust account violations. Despite the argument of petitioner and his counsel that Mr. Delk has rehabilitated himself and will not commit any further transgressions, the Board is concerned that Mr. Delk's ethical violations would be repeated. The fact that Mr. Delk was unable to say what had happened to the missing escrow funds, leads the Board to question his candor. The Board is also concerned about the message that will be conveyed to the public and the Bar if a lawyer revoked for trust account violations were to be reinstated. Accordingly, the Board recommends that Mr. Delk's license not be reinstated.

As required by Paragraph 13(K)(10)(e) of the Rules of Court, Part Six, Section IV, the Board finds the cost of this proceeding to be as follows:

Copying $ 371.72

Transcripts/court reporter $ 784.40

Mailing of notice of hearing $ 806.79

Administrative fee $ 750.00

Total $2,712.91

It is ORDERED that the Clerk of the Disciplinary System forward this Order of Recommendation and the record to the Virginia Supreme Court for its consideration and disposition.

It is further ORDERED that the Clerk of the Disciplinary System forward an attested copy of this Order of Recommendation by certified mail, return receipt requested, to the Petitioner at his address of record with the Virginia State Bar, 2727 Holly Point Boulevard, Chesapeake, Virginia 23325-4651, and to Rhetta M. Daniel, Petitioner's Counsel, P.O. Box 5167, Richmond, Virginia 23220-0167, and hand delivered to Richard E. Slaney, Assistant Bar Counsel, for the Virginia State Bar.

ENTERED this ____ day of January, 2002.

Virginia State Bar Disciplinary Board

 

John A. Dezio, First Vice Chairman