## Facts

- Timothy J. Wilka, a South Dakota attorney, represented Travis Van Overbeke in a divorce/visitation dispute where the opposing party sought restricted visitation based on alleged methamphetamine use.
- Wilka advised his client to obtain a hospital urinalysis; the complete report was negative for methamphetamine but positive for cannabinoids.
- Wilka requested and obtained a physically truncated version of the hospital report showing only the methamphetamine portion, omitting the cannabinoid result.
- At a visitation hearing, Wilka offered the truncated report into evidence to show the client tested negative for methamphetamine.
- When the trial judge questioned whether the report was complete, Wilka gave answers that were technically accurate but evasive and misleading, avoiding disclosure that he knew the report had been deliberately truncated.
- The court ordered Wilka to obtain and file a certified copy; Wilka later submitted the full report and apologized.
- The judge reported the conduct to disciplinary authorities; Wilka was also held in civil contempt related to the incident and fined.
- Disciplinary authorities found misconduct and recommended public censure; a referee agreed misconduct occurred but recommended only a private reprimand based on remorse and the absence of literal document falsification.

## Issues

1. Whether a lawyer violates duties of candor and honesty by submitting an intentionally incomplete evidentiary document and responding evasively to judicial inquiries about its completeness.
2. Whether the appropriate discipline for that misconduct, considering aggravating and mitigating circumstances, is public censure rather than a private reprimand.

## Decision

- The South Dakota Supreme Court held that Wilka committed professional misconduct by presenting an intentionally incomplete drug-test report without disclosure and by misleading the court through evasive answers.
- The court concluded that “literal truth” does not satisfy the duty of candor when the lawyer’s statements and omissions are calculated to mislead a tribunal.
- The court rejected the referee’s recommendation of a private reprimand and imposed the Disciplinary Board’s recommended sanction of public censure.
- The court treated Wilka’s later production of the full report and apology as mitigation, not as a defense to misconduct.
- The court determined that prior contempt/criminal consequences did not eliminate the need for attorney discipline because disciplinary sanctions serve protective and institutional purposes.

## Legal Principles

- A lawyer’s duty of candor to a tribunal prohibits not only affirmative falsehoods but also misleading half-truths and omissions intended to deceive the court.
- Offering evidence a lawyer knows is materially incomplete or misleading, without disclosure, constitutes misrepresentation inconsistent with professional obligations.
- When a judge directly questions the completeness or accuracy of a submission, counsel must respond fully and directly; evasive answers that conceal material facts violate the duty of candor.
- In selecting sanctions, courts weigh the nature of the misconduct, the lawyer’s mental state, actual or potential harm to the judicial process, prior disciplinary history, and the need to protect the public and courts.
- Professional discipline is distinct from contempt or criminal sanctions; its primary aims are protection of the public and courts and preservation of confidence in the legal profession.

## Conclusion

The court publicly censured Wilka for intentionally presenting a truncated drug-test report and misleading the trial judge through evasive answers, holding that candor requires more than technically accurate statements and that a public sanction was warranted to protect the courts and the integrity of the profession.


In re Discipline of Wilka, 638 N.W.2d 245 (S.D. 2001)