In re Discipline of Wilka

Lawyer Timothy Wilka (defendant) represented a client who risked losing visitation rights with his young daughter if the client was using any illegal drugs. To combat allegations that the client had been using methamphetamines, the client took a drug test. When Wilka received the test results from the hospital, the results showed that the client had not used methamphetamines but that he had recently used marijuana. Marijuana use was enough to jeopardize the client’s visitation rights. Wilka called the hospital and asked whether he could receive a form that showed only the results of the methamphetamine test. The hospital employee tore off the bottom the form, which was the part listing the marijuana results, and sent the partial form to Wilka. Wilka then submitted the partial form to the court as evidence that the client had not used methamphetamines. However, the other side’s attorney was familiar with the hospital’s form and recognized that this was not a complete copy. Also, the ragged bottom made the court suspicious that the form was not complete. The court asked Wilka multiple times whether something was missing from the form. Each time, Wilka provided accurate but evasive and misleading responses to the effect that the form was what he had received from the hospital. The court ordered Wilka to provide a certified copy of the results. Wilka later provided a full copy and apologized to the court for his behavior. Wilka was criminally charged for his behavior but was eventually found guilty of civil contempt and fined $100. The Disciplinary Board of the State Bar of South Dakota (plaintiff) also charged Wilka with professional misconduct for breaching his duty of candor to the court and recommended a public reprimand. However, the referee recommended only a private reprimand because Wilka had not provided any false information. Wilka had a history of complaints about his professional conduct and some prior discipline.