Indiana Law Review Discipline of Attorneys for Personal Misconduct Donna H. Fisher* William G. Hussmann** I. Introduction During this past year's Survey period, the Indiana Supreme Court again decided a large number and wide variety of attorney discipline cases.' Many of these cases address instances of attorney neglect, conflicts of interest and misappropriation of funds, which involve violations of the Code of Professional Responsibility obvious to most practicing lawyers.^ These cases do not need elaboration and will not be addressed by this article. This Article will discuss the large number of a alcohol and substance abuse cases decided by the court and the possible changes in the court's approach that could result if the new Model Rules of Profes- sional Conduct are adopted.^ In addition, the Article will highlight some less familiar issues of first impression decided by the court during the Survey period. Member of the Indiana Bar. Associate with the law firm of Jennings, Maas & Stickney, Indianapolis; B.A., Susquehanna University, 1969; J.D., Indiana University — Indianapolis, 1983. **Member of the Indiana Bar. Staff attorney for the Indiana Supreme Court Disciplinary Commission; B.S., 1972; J.D., 1976, Valparaiso University. '1984-1985 Ind. Sup. Ct. Disciplinary Comm'n Ann. Rep. at 5, 6. ^In addition to the disbarment cases covered by this Article, the court also awarded disbarment in In re Burge, 474 N.E.2d 991 (Ind. 1985) (neglect, failure to account for his client's funds, deceit, misrepresentation); In re Brault, 471 N.E.2d 1124 (Ind. 1984) (con- version and misuse of client's funds, misrepresentation, neglect); In re Deloney, 470 N.E.2d 65 (Ind. 1984) (forgery, misuse of funds); In re Aungst, 467 N.E.2d 698 (Ind. 1984) (failure to preserve testamentary trust, bad checks). The court ordered suspensions of varying length in In re Budnick, 466 N.E.2d 36 (Ind. 1984) (contempt of court); In re Frey, 475 N.E.2d 688 (Ind. 1985) (sharing fees with non-lawyer who recommends lawyer's services); In re Miller, 462 N.E.2d 76 (Ind. 1984) (neglect, failure to identify client funds, use of misleading trade name); In re Strain, 477 N.E.2d 85 (Ind. 1985) (misrepresentation to client concerning untimely appeal); In re Vickery, 468 N.E.2d 849 (Ind. 1984) (obstruction of justice); In re Wilcox, 467 N.E.2d 1182 (Ind. 1984) (neglect, failure to return funds); In re Hailey, 473 N.E.2d 616 (Ind. 1985) (neglect); In re Lewis, 474 N.E.2d 962 (Ind. 1985) (misrepresenta- tion and neglect); In re Jackson, 474 N.E.2d 994 (Ind. 1985) (failure to perform agreed services, retention of fee). ^The Model Rules of Professional Conduct will be considered at this year's meeting of the Indiana State Bar Association's House of Delegates. See Rakestraw, Rule 1.6, Saga of Misunderstanding, Conflicting Purposes, Juggled Priorities, 29 Res. Gestae 119 (Editor's Note) (1985). 259 260 INDIANA LA W REVIEW [Vol. 19:259 II. Alcohol and Substance Abuse A. Discipline for Personal Misconduct—Standards Of the nine attorney disbarments ordered by the Indiana Supreme Court during the Survey period, three involved alcohol or substance abuse/ Several other substance abuse cases resulted in suspensions/ These cases are instructive because they indicate our supreme court's approach to an issue that has received widely varied treatment in other jurisdictions^ and which has received different treatment by the Model Code of Professional Responsibility and the Model Rules of Professional Conduct/ Several sections of the Model Code of Professional Responsibilty, adopted in Indiana on March 8, 1971, and amended through 1985,* are relevant to an attorney's non-law-related conduct. Disciplinary Rule 1- 102(A)(3) charges that "[a] lawyer shall not . . . [e]ngage in illegal conduct involving moral turpitude."' Disciplinary Rule 1- 102(A)(6) forbids an attorney to engage in any conduct that '* adversely reflects on his fitness to practice law,'"" and Canon 9 instructs that a lawyer must avoid "even the appearance of professional impropriety."" These Disciplinary Rules "state the minimum level of conduct below which no lawyer can fall without being subject to discipHnary action.'"^ The Disciplinary Rules are supplemented by Ethical Considerations, aspirational in nature,'^ that 'In re Hayes, 467 N.E.2d 20 (Ind. 1984); In re McCarthy, 466 N.E.2d 442 (Ind. 1984); In re Ewers, 467 N.E.2d 1184 (Ind. 1984). 'In re Thomas, 472 N.E.2d 609 (Ind. 1985); In re Jones, 464 N.E.2d 1281 (Ind. 1984). "See, e.g.. In re Chase, 299 Or. 391, 702 P.2d 1082 (1985) (attempted possession of cocaine is not misdemeanor involving moral turpitude; while sale and trafficking of- fenses constitute moral turpitude, possessory offenses do not); Disciplinary Counsel v. Gross, 11 Ohio St. 3d 48, 463 N.E.2d 382 (1984) (possession of marijuana and methaqualone, and driving under the influence adversely reflect on attorney's fitness to practice law and warrant indefinite suspension); Committee on Professional Ethics and Misconduct v. Shumin- sky, 359 N.W.2d 442 (Iowa 1984) (possesion of marijuana and four amphetamine tablets violates DR 1-102(A)(6) and EC 1-5 and 9-6 warranting indefinite suspension); In re WiUis, 371 N.W.2d 794 (S.D. 1985) (respondent's testimony before grand jury on immunity that he had used cocaine on "several occasions" resulted in 180-day suspenison from law prac- tice for failing to maintain integrity of the profession and for moral turpitude). 'Compare Model Code of Professional Responsibility (amended 1979) with Model Rules of Professional Conduct (1983). '^See Ind. Code of Professional Responsibility Table of Contents (amended 1984). ^Ind. Code of Professional Responsibility, DR 1- 102(A)(3) (1984). '"M, DR 1- 102(A)(6). "/c^., Canon 9. '^M, Preamble and Preliminary Statement. ''Id. 1 986] DISCIPLINE OF A TTORNEYS 26 1 caution a lawyer to be temperate, dignified, and to promote public con- fidence in the legal profession."* The specific conduct constituting moral turpitude, impropriety, or intemperance is left undefined by the Code. This lack of definition has caused the split in interpretation among jurisdictions'- reflected in the Code's own footnotes. Essentially, the split is between jurisdictions which hold that offenses or convictions which do not affect an attorney's fitness to practice his profession are not grounds for discipline and jurisdictions which hold that the power to discipline may be exercised where an attorney's misconduct outside the scope of his profession includes offenses which are contary to **justice, honesty, modesty or good morals.'"^ The new ABA Model Rules of Professional Conduct, adopted by the ABA House of Delegates in August, 1983," omits the "moral tur- pitude" language of the Code's Disciplinary Rule 1-102. Rule 8.4 of the Model Rules, which most closely resembles the Model Code's Disciplinary Rule 1-102, provides: It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Con- duct, knowingly assist or induce another to do so, or do so through the acts of another; 'Vf/., EC 1-5, 9-1, and 9-6. These Ethical Considerations state: EC 1-5: A lawyer should maintain high standards of professional conduct and should encourage fellow lawyers to do likewise. He should be temperate and dignified, and he should refrain from all illegal and morally reprehensible conduct. Because of his position in society, even minor violations of law by a lawyer may tend to lessen public confidence in the legal profession. Obedience to law exemplifies respect for law. To lawyers especially, respect for the law should be more than a platitude. EC 9-1: Continuation of the American concept that we are to be governed by rules of law requires that the people have faith that justice can be obtained through our legal system. A lawyer should promote public confidence in our system and in the legal profession. EC 9-6: Every lawyer owes a solemn duty to uphold the integrity and honor of his profession; to encourage respect of the law and for the courts and the judges thereof; to observe the Code of Professional Responsibility; to act as a member of a learned profession, one dedicated to public service; to cooperate with his brother lawyers in supporting the organized bar through the devoting of his time, efforts, and financial support as his professional standing and ability reasonably permit; to conduct himself so as to reflect credit on the legal profession and to inspire the confidence, respect, and trust of his clients and of the public; and to strive to avoid not only professional impropriety but also the appearance of impropriety. "The split among the jurisdictions is reflected in the Code's own footnotes. Id., DR 1-102 nn.l3, 14. ''Id., n.l4 (quoting In re Wilson, 391 S.W.2d 914, 917 (Mo. 1965)). "ABA/BNA Lawyers Manual on Professional Conduct (BNA) S 01:101 (1984). 262 INDIANA LAW REVIEW [Vol. 19:259 (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fltness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a govern- ment agency or official; or (0 knowingly assist a judge or judicial officer in conduct that is a violation of appHcable rules of judicial conduct or other law.'^ The Comment to Rule 8.4, also adopted by the ABA,'^ clearly indicates that the omission of moral turpitude language was deliberate and that Rule 8.4 is not intended to be a basis for discipline for a lawyer's acts not relevant to his practice of law.^ As the following cases indicate, Indiana can be numbered among the jurisdictions interpreting the Code of Professional Responsibility as directing discipline for a lawyer's personal misconduct outside the practice of law. Within the next year, the new Model Rules of Professional Conduct will be considered by the House of Delegates of the Indiana State Bar Association and recommendations will be made regarding the '^MoDEL Rules of Professional Conduct Rule 8.4 (1983). '^M, Rule 8.4 comment. ^Id. That comment includes the following observation: Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offense carry no such implication. Tradi- tionally, the distinction was drawn in terms of offenses involving "moral tur- pitude." That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to the fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those charac- teristics relevant to law practice. Offenses involving violence, dishonesty, or breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation. * * * Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role of attorney. The same is true of abuse of positions of private trust, such as trustee, executor, administrator, guardian, agent and of- ficer, director, or manager of a corporation or other organization. Id. 1986] DISCIPLINE OF ATTORNEYS If^^ Model Rules' adoption in Indiana.^' Should Model Rule 8.4 be adopted as written, it may markedly change the court's current approach to personal misconduct cases as reflected in the following cases decided during the Survey period. B. Substance Abuse - Cocaine and Marijuana In In re Turner,^^ respondent Turner's car was stopped by a police officer. The officer searched Turner's car and found "a quantity" of marijuana. Turner was arrested and charged with possessing marijuana in violation of Indiana Code section 35-48-4-11(1).^^ Turner pleaded guilty to a Class A misdemeanor and served six days of a sixty-day sentence before being placed on probation.^"* After initiation of disciplinary proceedings, Turner entered into a Conditional Agreement for discipline with the Indiana Supreme Court Disciplinary Commission, which charged Turner with violations of Disciplinary Rules 1-102(A)(1), (3), and (6) of the Code of Professional Responsibility. By way of mitigation, the parties acknowledged "that at the time of his arrest, the respondent was not using marijuana, nor was he violating any traffic law, nor was he endangering the public in any way."^^ Citing Canon 1 of the Code of Professional Responsibility charging attorneys with maintaining the integrity of the profession, and Ethical Con- sideration 1-5, the court found that Turner had been involved with an illegal substance, a crime in Indiana, and had engaged in misconduct which reflected adversely on his profession.^ The court made no comment on whether it considered Turner's possession of marijuana a violation of the Disciplinary Rules as charged by the Disciplinary Commission and, therefore, did not specifically decide whether possession of marijuana ^^See supra note 3. "463 N.E.2d 477 (Ind. 1984). ^'IND. Code § 35-48-4-1 l(i) (Supp. 1985) provides: A person who: (1) Knowingly or intentionally possesses (pure or adulterated) marijuana, hash oil, or hashish; (2) Knowingly or intentionally grows or cultivates marijuana; or (3) Knowing that marijuana is growing on his premises, fails to destroy the marijuana plants; commits possession of marijuana, hash oil, or hashish, a class A misdemeanor. However, the offense is a class D felony (i) if the amount involved is more than thirty (30) grams of marijuana or two (2) grams of hash oil or hahish, or (ii) if the person has a prior conviction of an offense involving marijuana, hash oil, or hashish. ^M63 N.E.2d at 477-78. ''Id. at 478. "^Id. 264 INDIANA LA W REVIEW [Vol. 19:259 constituted moral turpitude or whether such possession reflected adversely on Turner's fitness to practice law. Indiana case law holds that violation of an Ethical Consideration alone will not support disciphne.^^ It is unclear, therefore, from the Turner decision, that absent a Conditional Agreement, the court would have held marijuana possession to be a proper subject for attorney discipline. Approximately three weeks after the Turner decision, the court handed down the decision of In re Jones.^^ In Jones, the respondent, a candidate for Morgan County Prosecutor, was arrested for driving under the influence of intoxicating liquor and for possession of marijuana and hashish. Jones pleaded guilty to driving while intoxicated and possession of marijuana and, pursuant to a plea agreement, was fined, received a suspended sentence, and was ordered to perform community service and attend a drug abuse program." Pursuant to Indiana Code section 35- 48-4-12, the marijuana possession charge was subsequently dropped.^" After his disciplinary hearing on the same facts, respondent Jones petitioned the supreme court for a review of the hearing officer's rec- ommendation for discipline, contending that his conduct was not such that it adversely reflected upon his fitness to practice law, nor were his offenses crimes of moral turpitude as charged by the Disciplinary Com- mission.^' The Commission argued that the court's earlier decision in In re Moore^^ was controlling. In Moore, the respondent, a Deputy Prosecutor of Jennings County, was disbarred for failing to destroy marijuana plants which he knew to be growing on his premises, in violation of pubHc trust and Disciplinary Rules 1-102(A)(1), (3) and (6)." The court noted that while the Moore case involved charges of professional misconduct similar to those in Jones, *'the underlying factual [bases were] unique and distinct. "^"^ The court pointedly stated that **[t]he fact that marijuana was involved in both disciplinary actions does not mean that all issues in such cases are forever decided. "^^ Citing In re Gorman,^^ the court emphasized that ''See Kizer v. Davis, 174 Ind. App. 559, 369 N.E.2d 439 (1977). ^«464 N.E.2d 1281 (Ind. 1984). '"Id. '"Id. ^'464 N.E.2d at 1281. "453 N.E.2d 971 (Ind. 1983). "Id. at 974. 'H64 N.E.2d at 1281. ''Id. at 1282. ^^269 Ind. 236, 379 N.E.2d 970 (1978). In Gorman, the respondent was charged with moral turpitude based in part upon a criminal conviction for possession with intent 1986] DISCIPLINE OF ATTORNEYS 265 the issue for determination was not the *' nature of the drug involved," but rather the "measure of Respondent's conduct viewed in toto, against his moral fitness to continue in the practice of law."^^ The court found that Jones, while seeking public office, had engaged in illegal conduct by possessing marijuana and hashish and driving under the influence of alcohol, thereby placing himself above the law and demonstrating a ''total disregard for societal judgments relating to the possession of controlled substances. "^^ The court also noted that Jones had endangered the public by driving while intoxicated.^^ Based upon this, the court held that ''in its totality" Jones' conduct established that he was morally unfit to practice law and suspended him from practice for three years, foregoing disbarment in consideration of Jones' youth, inexperience, and his support from the Morgan County bench and bar.'^^ In Jones, the court focused on the respondent's public position and the sum total of his conduct. Like Turner, the decision leaves unanswered the question of whether any one of the respondent's offenses standing alone would support discipline. In another marijuana possession case based upon facts similar to Jones, the court ordered the identical sanction of three years suspension. to distribute and distribution and conspiracy to distribute cocaine. Gorman admitted commission of "an illegal act (malum prohibitum), but denie[d] that he [had] done wrong (malum in se), arguing that the use of cocaine is neither addictive nor injurious to health" and, therefore, contended he did not commit moral turpitude. Id. at 237-38, 379 N.E.2d at 971. The court, citing Baker v. Miller, 236 Ind. 20, 24, 138 N.E.2d 145, 147 (1955), discussed the definition of moral turpitude at length, stating: In proceedings of this character moral turpitude has always been a controlling factor in the disciplinary action to be taken by the court where there has been a charge of misconduct by a member of the bar. The problem of defining moral turpitude is not without difficulty. There is certain conduct involving fraud, perjury, theft, embezzlement, and bribery where there is no question but that moral turpitude is involved. On the other hand, because the law does not always coincide exactly with principles of morality there are cases that are crimes that would not necessarily involve moral turpitude. Acts which normally at common law were not considered wrong, do not by reason of statutory enactment making them a crime, add any element of moral turpitude. For example, willfully running a stop light or exceeding the speed limit does not necessarily involve moral turpitude. Webster's International Dictionary (2d Edition) defines "turpitude" as: "Inherent baseness or vileness of principle, words, or actions; depravity." Black's Law Dictionary (4th Edition) defines "moral turpitude" as: "An act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." "464 N.E.2d at 1282 (quoting In re Gorman, 269 Ind. at 238, 379 N.E.2d at 971). 'H(A N.E.2d at 1282. "'Id. "^Id. 266 INDIANA LA W REVIEW [Vol. 19:259 In In re ThomaSy^^ the respondent, a Deputy Prosecutor in Jackson County, Indiana, was stopped by a state police trooper for failing to make a complete stop at an intersection. The arresting officer subse- quently found marijuana and hydrocodone, a Schedule II controlled substance, in the respondent's possession. Thomas was charged for these offenses, although the charges for possession of a controlled substance were eventually dropped. The respondent pleaded guilty to possession of marijuana and to the traffic offense.'*^ In assessing discipline, the court, as in Jones, examined Thomas' conduct in its entirety, keying on the respondent's duty as prosecutor and the illegality of his conduct. The court determined that the conduct constituted moral turpitude and adversely reflected on the respondent's fitness to practice law."^^ Commenting on the sanction imposed for re- spondent's misconduct, the court stated: In our assessment of an appropriate sanction, we observe that the Respondent violated the very laws he was obligated to enforce in his professional capacity as a Deputy Prosecutor. This, how- ever, does not mean that the Respondent is being disciplined solely because he served as a public official. The use and pos- session of marijuana and controlled substances are illegal in this state and one need not be a Deputy Prosecutor to understand this illegality. . . . Obedience to the law exemplifies respect for law. ... As lawyers, the members of the bar have a particular responsibility to demonstrate these principles.** This statement indicates that although possession and use of a controlled substance is viewed in the context of an attorney's total misconduct foe purposes of determining whether he has engaged in moral turpitude, once that determination is made, the acts of misconduct will be viewed separately to determine a proper sanction. Thus, in Thomas, while a combination of misconduct including a traffic offense and possession of controlled substance by a deputy prosecutor were held to constitute moral turpitude, the illegality of respondent's act of possession was evaluated independently as a basis for his suspension. The court had occasion to discuss cocaine addiction and its effect on an attorney's practice in In re McCarthy. '^^ In McCarthy, the re- spondent attorney spent an average of $2,000 a week to support his ^'472 N.E.2d 609 (Ind. 1985). '^Id. ''Id. at 610. "^Id. ^'466 N.E.2d 442 (Ind. 1984). 1986] DISCIPLINE OF ATTORNEYS 267 cocaine addiction. To finance his habit, McCarthy engaged in various acts of misconduct, including withdrawing money from an estate without authorization."^ In addition, he wrote bad checks, failed to return a cHent's funds promptly, and was guilty of neglect.'*'' Based upon these acts, the supreme court ordered McCarthy disbarred for violations of Canons 1, 6, 7, and 9.'*'' Commenting on the respondent's cocaine addiction, the court stated: It is indeed unfortunate when a person trained to be a profes- sional loses grasp of priorities and subjugates professional re- sponsibilities to the demands of an addiction. Apparently, Respondent has suffered this p^sonal tragedy. But this is only a part of the total misfortune generated by this addiction. The results are equally calamitous to the client who is disserved by a person thought to be trusted. The public must have confidence that when they place their trust in an attorney they will receive faithful, professional assistance. If an attorney cannot so respond, he is unfit to con- tinue in the profession/^ The respondent's addiction was not considered in mitigation of his of- fenses.^" One month after its McCarthy decision, the court addressed another cocaine-related case in In re Ewers.^^ In Ewers, the respondent placed an advertisement in a local newspaper seeking to hire *' 'a recent female high school graduate desirous in working with horses.' "" Two female police department employees responded to the advertisement. They later met with respondent at which time all three used the respondent's cocaine. During a second meeting in which cocaine was also used, the respondent was arrested and charged with possession of cocaine" and possession "'/