Becker, Matter of, 82S00-9204-DI-237
| Decision Date | 14 September 1993 |
| Docket Number | No. 82S00-9204-DI-237,82S00-9204-DI-237 |
| Citation | 620 N.E.2d 691 |
| Parties | In the Matter of Emil J. BECKER, Jr. |
| Court | Indiana Supreme Court |
The Respondent, Emil J. Becker, Jr., was charged in a one-count complaint for disciplinary action with violating Rules 1.1, 3.1, 8.2(a), and 8.4(d) of the Rules of Professional Conduct for Attorneys at Law. Thereafter, the Respondent and the Disciplinary Commission tendered for this Court's approval a "Statement of Circumstances and Conditional Agreement for Discipline" pursuant to Admission and Discipline Rule 23, Section 11(d). After careful review, we find that the agreement should be accepted and approved. All of the charges at issue stem from Respondent's representation of clients in an adoption proceeding.
Adopting the facts agreed by the parties, we find that Respondent represented clients S.T. and C.T. in connection with an adoption petition filed in Vanderburgh Superior Court, Probate Division. The Honorable Robert Lensing presided. The child who was the subject of the Respondent's petition was also the subject of a petition for adoption filed by another party who had custody of the child.
On August 28, 1990, the court held hearings on the competing adoption petitions. During the hearing on S.T. and C.T.'s petition, a tape recorder used to record the proceeding was turned off just prior to a recess. Upon reconvening and after the testimony of a witness, those participating in the hearing discovered that the tape recorder was not reactivated following the recess. Judge Lensing offered both the Respondent and opposing counsel the opportunity to recall the witness, but neither party accepted this invitation. The court reporter later prepared a transcript of the witness's unrecorded testimony from notes she had taken during the testimony.
The court denied S.T. and C.T.'s petition. On December 20, 1990, Respondent filed an appellate brief in the Indiana Court of Appeals, case number 82A01-9012-CV-00527, in which Respondent accused Judge Lensing of various acts of misconduct. In regard to the taping incident, Respondent stated the following in his brief:
The Court also CONTROLLED the recording of the trial and caused the recording to be turned off during some of the most important testimony, which testimony could have been the most beneficial to the Appellants. The Court then claimed that this interruption of the taping was "inadvertent" but no real attempt was made to correct the damage.
. . . . .
The worst part of this case occurred when the judge totally trampled on the rights of the Appellants by controlling the recording of the trial. The judge had the recording equipment under his desk in the court room where he could reach down and turn the recording off and on without anyone knowing and at anytime he desired. When the examination of [the witness] showed her obvious conflict and obvious breach of that confidentiality to her clients it appears that the judge became worried.
Brief of Appellant at pp. 4 and 9.
In his brief, Respondent further characterized the taping incident as follows:
Although the judge left the recording equipment off during the entire testimony of [the witness], he then tried to advise the parties that his inadvertence had caused the break in the recording and he offered to recall the witness. The attorney for the Appellants indicated that it would not be necessary because the damage had already been done and the [witness] had already heard the questions and could not contemplate and rehearse her answers more efficiently. The Court indicated at the time of the Praecipe that the reporter should build a transcript from her shorthand notes, but it is quite obvious when reading the record of this case that her notes are painfully inadequate when viewed against a transcription of a recording tape.
Brief of Appellant at pp. 9-10 (Emphasis ours). 1
The hearing on the competing petitions had been postponed several times. Respondent asserted in his brief that Judge Lensing granted continuances and delayed the hearing so as to extend the amount of time the child was in custody of the other party in order to use length of custody as a factor in granting the adoption to the other party. Specifically, Respondent's brief stated:
The Court allowed continuances which created a time for custody of this child and the Court eventually used that period of time as one of the reason [sic] for allowing the child to be adopted by [the competing party].
Brief of Appellant at pp. 7-8.
Respondent's brief included no citation to statutory, constitutional, or case authority in support of its arguments. The statement of facts contained therein was conclusory and argumentative and included no references to supporting authority from...
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