Craven, Matter of

• Citation: 271 Ind. 67,390 N.E.2d 163
• Decision Date: 30 May 1979
• Docket Number: No. 278S32,278S32
• Parties: In the Matter of Robert F. CRAVEN.
• Court: Indiana Supreme Court

Page 163

390 N.E.2d 163

271 Ind. 67

In the Matter of Robert F. CRAVEN.

No. 278S32.

Supreme Court of Indiana.

May 30, 1979.

Vance M. Waggoner, Rushville, for appellant.

Sheldon A. Breskow, Ind. Supreme Court, Disciplinary Comm., Indianapolis, for appellee.

DISCIPLINARY ACTION

PER CURIAM.

This proceeding is before the Court on an one-count verified complaint filed by the Indiana Supreme Court Disciplinary Commission pursuant to Admission and Discipline Rule 23, § 12. Pursuant to the provisions of Admission and Discipline Rule 23, this cause was heard by an appointed Hearing Officer. The Respondent has petitioned this Court to review the findings and conclusions of the Hearing Officer and both parties to this proceeding have submitted briefs in support of their respective positions.

In his petition for review, the Respondent challenges specific findings of fact and the factual and legal conclusions drawn relative to the findings, asserting that the findings and conclusions are contrary to the evidence. Issues of this nature are resolved through the review process employed by this Court in disciplinary proceedings. In the case of In re Murray, (1977) 266 Ind. 221, 362 N.E.2d 128, appeal dismissed, 434 U.S. 1029, 98 S.Ct. 758, 54 L.Ed.2d 777 (1978), this court detailed this process of review:

"It should be noted at the outset that a disciplinary proceeding is an original action in this Court. Ind.Const., Art. 7 § 4. As such, this Court sits as a trial court and must determine issues of fact; this clearly distinguishes the disciplinary proceeding from an appeal. In re Pawlowski (1959), 240 Ind. 412, 165 N.E.2d 595.

"Recognizing this distinction, in the absence of any agreement by the parties as to factual issues, this Court examines and reviews all matters which have been submitted in a particular cause. An examination of the previous opinions of this Court demonstrates that the findings of fact are only the initial starting point for review by this Court. See, In re Wood (1976), 265 Ind. 616, 358 N.E.2d 128; In re Smith (1976), 266 Ind. 6, 351 N.E.2d 1; In re Bradburn (1966), 248 Ind. 29, 221 N.E.2d 885; In re Holovachka (1964), 245 Ind. 483, 198 N.E.2d 381. It is through this complete examination of all matters that this Court makes its ultimate findings of fact upon which a determination of misconduct is weighed. The findings of the Hearing Officer thus are reviewed within this Court's consideration of all relevant matters. These findings do receive emphasis in that the Hearing Officer observes the witnesses, absorbs the nuances of unspoken communication, and by this observation attaches credibility to the testimony, but such findings are not necessarily controlling on this Court and never have been. In re Pawlowski, Supra.

"In the end, the findings of fact reached by this Court are the product of this Court's examination of the entire record with the above noted consideration being given to the findings of fact submitted by the Hearing Officer. Thus, there is no standard of review as applied within the appellate procedure, but merely the application of a process of determination whereby this Court finds facts as is required in all original actions."

Under the complaint filed in this cause, the Respondent is charged with professional misconduct in the course of the legal representation of a client with a claim for medical malpractice. The Respondent is specially charged with representing clients when the exercise of the Respondent's professional judgment would or reasonably could be affected by his own financial, business, property, and personal interests in violation of Disciplinary Rule 5-101(A); with failing to adequately represent clients in violation of Disciplinary Rule 6-101(A)(3); with deceiving or attempting to deceive his clients, thereby engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Disciplinary Rule 1-102(A)(4); and with engaging in conduct which adversely reflects upon his fitness to practice law, in violation of Disciplinary Rule 1-102(A)(6).

Employing the process of review above noted, this Court has reviewed all matters which have been submitted in this cause and now finds that the Respondent, an attorney admitted to practice on December 14, 1955, was engaged in the private practice of law in 1972, and was a partner in the law firm of Craven and Milan, which had offices in Indianapolis and Paoli, Indiana. On March 5, 1972, Rose C. and James W. White, husband and wife, retained Indianapolis attorney, Stanley R. Fish, an associate in the firm of Craven and Milan, to represent them in the prosecution of a medical malpractice claim, resulting from alleged injuries which occurred on or about September 16, 1970.

On March 23, 1972, Mr. Fish, on behalf of the Whites, filed a complaint in the Marion County Superior Court, Room 4, under Cause Number S472-368. Harry Siderys, M. D., John Pittman, M. D., Gilbert Herod, M. D., and Methodist Hospital of Indiana, Inc. were named as defendants. Doctors Siderys, Pittman, and Herod were represented by attorneys Claude M. Spillman, Jr., and Jon D. Krahulik; and Methodist Hospital was represented by attorneys William B. Weisell and Michael A. Bergin.

On November 1, 1972, Mr. Fish left the firm of Craven and Milan. The Respondent assumed representation of the Whites in the aforesaid medical malpractice matter.

Pre-trial conferences were scheduled in this cause for September 28, 1973, and February 21, 1974; a trial date was scheduled for March 11, 1974, this cause being fifth on the calendar.

By agreement of the parties, the scheduled conferences were never held. Sometime prior to February 21, 1974, the Respondent left a telephone message for Jon D. Krahulik indicating his desire to have the trial continued. In response to said message, Jon D. Krahulik drafted and sent a letter to the Respondent setting out his objection to a continuance in the cause and stating that he was "going to prepare to try the case on March 11, 1974."

A standing rule of Marion County Superior Court, Room No. 4, while the Honorable Frank A. Symmes, Jr., was presiding, was that motions for continuance had to be filed in writing with the Court prior to trial. The Respondent, at no time filed such a motion, although he had instructed his secretary to prepare and file a motion requesting a continuance in this cause. The jury trial docket in Judge Symmes' court was set up so that more than one case was scheduled for the same day. Each case was assigned a number and the attorneys were expected to be prepared to try the case on the assigned day. If no cases were settled, only the "first choice" cause would be tried. Should the "first choice" cause be settled, then the "second choice" cause would be tried, and so on. White v. Siderys, et al. was initially scheduled for the "fifth choice" on the docket for March 11, 1974.

Sometime during the week prior to trial, the bailiff of Superior Court Number 4 informed an associate in the Respondent's Indianapolis law office that The White v. Siderys, et al. cause had been moved up on the trial docket. The Respondent was informed by his associate of this conversation prior to March 11, 1974.

Mr. Bergin, through inquiries to the Court and counsel on those cases set ahead of the White cause, discovered sometime on Friday, March 8, that the White cause had been advanced to "first choice" on the Monday, March 11, docket. Subsequently, he contacted Mr. Krahulik (who was out of town on March 8) and informed him of the setting. Both defendants' counsel were in Court and prepared to proceed with trial on Monday morning, March 11, 1974. The Respondent made no further effort to contact the Court regarding the trial setting. He was not in Court on Monday, March 11, and had not informed his client of this trial setting.

On the morning of March 11, 1974, Judge Symmes, having found that the Respondent's office had been advised that the White case was "first choice" on the court's calendar for March 11, on his own motion dismissed the jury and the cause of action.

Shortly after March 11, 1974, the Respondent learned of the dismissal, placed a telephone call to Judge Symmes and went to the court. Judge Symmes would not discuss the matter with the Respondent. On March 18, 1974, the Respondent filed a Motion to Reinstate the cause; this motion was overruled on April 19, 1974. On May 15, 1974, the Respondent filed a Motion to Correct Errors in the cause; this motion was overruled on June 19, 1974. All the post-trial activity was done without the clients' knowledge or consent. The Respondent allowed the time limitations in which an appeal may be perfected to expire without informing the clients the case had been dismissed and without conferring with the clients regarding the appellate possibilities. No further proceedings were ever filed relative to this cause.

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