Blackwelder, Matter of

• Decision Date: 11 June 1993
• Docket Number: No. 49S00-9101-DI-14,49S00-9101-DI-14
• Citation: 615 N.E.2d 106
• Parties: In the Matter of Charles B. BLACKWELDER.
• Court: Indiana Supreme Court

Page 106

615 N.E.2d 106

In the Matter of Charles B. BLACKWELDER.

No. 49S00-9101-DI-14.

Supreme Court of Indiana.

June 11, 1993.

John G. Forbes, William N. Ivers, Stewart & Irwin, Indianapolis, for respondent.

David B. Hughes, Indianapolis, for Indiana Supreme Court Disciplinary Comm.

DISCIPLINARY ACTION

PER CURIAM.

Charles Blackwelder, the respondent in this case, was charged in a complaint for disciplinary action with one count of professional misconduct alleging several violations of the Rules of Professional Conduct for Attorneys at Law. This court appointed a hearing officer pursuant to Admission and Discipline Rule 23(11)(b), and, after a hearing thereon, he tendered his Findings of Fact and Conclusions of Law.

The respondent petitioned for review, contending that several findings were not supported by credible evidence, several were inconsistent, and that the hearing officer failed to make findings as to mitigating factors. Our review of attorney disciplinary cases is de novo in nature and involves a review of the entire record submitted in the case. The hearing officer's findings may receive emphasis given his opportunity to directly observe the witnesses, but this court is the final arbiter of disputed facts and the ultimate conclusions. Matter of Levinson (1992), Ind., 604 N.E.2d 599; Matter of Smith (1991), Ind., 579 N.E.2d 450; Matter of Gemmer (1991), Ind., 566 N.E.2d 528. Respondent's challenges will be addressed within the context of this review process.

After requesting a stay of this decision, the respondent also filed a Petition to Include and Consider Newly Discovered Evidence indicating that one of the complaining witnesses had subsequently been charged with criminal conversion of funds from her employer who was an appellate court judge. We grant respondent's motion and, accordingly, such evidence will be considered in our deliberation and decision.

The respondent is a member of the Bar of this state, having been admitted on June 1, 1978. In October of 1988, Randall and Dianna Gosnell retained the respondent to pursue an appeal of a default judgment entered against the Gosnells. The clients had already filed a pro se Motion to Correct Error, and the trial court had denied it. Respondent filed a timely praecipe for the record, obtained and reviewed the record, but he miscalculated the deadline for filing the record, and, thus, missed the filing date.

Upon discovering his error, the respondent arranged a meeting with the clients and, on January 5, 1989, met with them for approximately two hours. They met again at respondent's office on February 2, 1989, at which time the respondent presented and read to the clients a "Retainer Agreement an (sic) Release of Claims and Covenant Not To Sue."

Therein, the respondent agreed to reimburse the Gosnells for their out-of-pocket expenses in connection with the appeal and to file a joint bankruptcy petition in return for a release. The clients agreed to "... release, acquit and forever discharge Attorney from any and all claims, grievances, suits and causes of action, arising from Attorneys (sic) failure to perfect the appeal ...", and, in a subsequent paragraph, agreed to "... not file any complaint or grievance against Attorney with the Indiana Supreme Court Disciplinary Commission or any bar association." The document also stated that "Attorney also recommended that the Clients take sufficient time to thoroughly consider the offer and to seek the advice of another attorney(s) before making a final decision; and Whereas, Clients have considered the offer and have consulted with another attorney...."

After the execution of the "Retainer Agreement and Release", the respondent refunded to the Gosnells $2,096.00 for expenses incurred by the appeal. Respondent filed the bankruptcy petition and paid the filing fees. The Gosnells obtained a discharge of the default judgment which the respondent had failed to appeal and of approximately $300,000 in unrelated debt.

The Gosnells filed a grievance with the Disciplinary Commission on March 7, 1990. By a letter dated March 5, 1990, to the respondent, Mr. Gosnell expressed his displeasure with respondent and advised that he deemed the "Mal (sic) Practice Agreement" breached by the respondent. In this letter, Gosnell also indicated that he was upset that the respondent had not paid some $450 to the U.S. Trustee's Office, which he felt should have been paid by the respondent pursuant to their agreement.

Respondent...