Farr, Matter of

Decision Date03 February 1976
Docket NumberNos. 974S196 and 974S197,s. 974S196 and 974S197
Citation264 Ind. 153,340 N.E.2d 777
PartiesIn the Matter of John A. FARR. In the Matter of Thomas L. HULSE.
CourtIndiana Supreme Court

Stewart, Irwin, Gillion, Fuller & Meyer, Indianapolis, for appellant.

Richard H. Grabham, Executive Secretary Indiana Supreme Court Disciplinary Commission, David B. Hughes, Indianapolis, Trial Counsel, for appellee.

PRENTICE, Justice.

This is a disciplinary matter and is before the Court for consideration and disposition upon the findings of fact, conclusions and recommendation of Philip S. Kappes, the Hearing Officer, the Disciplinary Commission's petition and supporting brief for review thereof and the Respondent's brief in opposition to said petition.

The Court, having considered the foregoing, now denies the Commission's petition as to the Hearing Officer's findings of fact and now adopts said findings but grants said petition as to the Hearing Officer's conclusions and recommendation; and having considered said findings of fact, now adopts the Hearing Officer's conclusions, as fully supported by said facts, but declines to follow his recommendation that no discipline be imposed.

The very complicated circumstances of this case present classic and intricate questions of conflicts of interest and the impropriety and appearance of impropriety that may flow therefrom, which this Court believes are matters frequently overlooked by otherwise highly ethical lawyers. In view of the recent origin of our program for the discipline of lawyers of this state and the improvement of the public image of the legal profession, the publication of the adopted findings and conclusions in full is warranted, in order that all may be adequately forewarned of the delicate balance often obtaining between ethical and unethical practices and the attitude of this Court regarding

sanctions for violations. HEARING OFFICER'S FINDINGS OF

FACT, DETERMINATIONS, AND RECOMMENDATIONS

'The Disciplinary Commission of the Supreme Court of Indiana (The Commission) has charged John A. Farr and Thomas L. Hulse (Respondents) with violation of the Code of Professional Responsibility as adopted March 8, 1971, and the preexisting Canons of Professional Ethics. The precise charges will be examined in the course of these Findings of Fact, Determinations, and Hearing Officer's Recommendations. The matters, though filed separately as to each Respondent (Hulse, Cause No. 974S196 and Farr, Cause No. 974S197) were by consent of Respondents' counsel heard jointly, and are dealt with jointly in these findings.

'THE FACTUAL BACKGROUND

'Most of the evidence is undisputed. It was voluminous. Essentially the Respondents, as practicing attorneys, were employed by the complaining witness, Lena Mae Smiley, (Smiley) and her fourteen year old son, Michael Helterbrand, (Michael) to represent them in a claim for personal injuires to Michael arising outof a fatal automobile accident that occurred on or about October 18, 1966.

'Michael was a passenger in the automobile of William Lee Crooks (Crooks I) an unlicensed operator of the vehicle along with another passenger, Terry Prifogle (Prifogle). The collision was 'head on' on State Road 123, just West of its intersection with County Road 825 West. The other vehicle was owned by the Town of Lapel, Indiana, and was operated by James E. Fisher a Deputy Town Marshall employed by the Town of Lapel who was accompanied by another Lapel Deputy Town Marshall, William Stanford. There was evidence that the Marshall's vehicle was traveling at a high rate of speed at night without headlights or emergency lights. The impact occurred on the right hand side of the road for the police vehicle, but there was evidence that immediately prior to the collision it had been traveling on the left hand side of highway 123.

'Prifogle died instantly. All others sustained varying degrees of injury. Michael being perhaps the most severely and permanently injured.

'Smiley employed Respondents to act as attorney for her son and herself. During the course of such representation, Respondents advised Smiley that her son had no cause of action against Crooks I (the host driver) because Michael gave a statement indicating no improper driving on the Part of Crooks I. Respondents recommended proceeding against the police officer, driver and Town of Lapel and not against Crooks I. Mrs. Smiley concurred and authorized the attorneys to proceed.

'During the course of this employment it became known that Respondents law firm was regularly employed as counsel for Farm Bureau Insurance Company and that this company held the liability coverage on the automobile driven by Crooks I and owned by his father William H. Crooks (Crooks II). Thereafter while continuing to represent Smiley and Michael, Respondents undertook to aid in the defense of Crooks I in a criminal proceeding wherein he had been charged with:

I Involuntary Manslaughter

II Reckless Homicide

III Causing the death of another, etc.

IV Driving a vehicle, etc.

Crooks I was found guilty of Count IV. The verdict was found on appeal to be erroneous. (Crooks v. State (1971), 256 Ind. 72, 267 N.E.2d 52).

'Respondents also represented Crooks I in four civil actions filed against him by Fisher, Stanford, Prifogle's Estate, and a subrogation suit by Indiana Insurance Co. for the property damage to the Lapel Marshall's auto.

'Respondents initiated suit on behalf of Smiley and Michael about October 10, 1968, and continued in such representation until they withdrew December 14, 1971, after notifying Smiley in advance of this intention. The suits as filed named the Town of Lapel and Fisher as Parties Defendant. No other Defendants were added to these suits nor were demands made against any other persons during Respondents' representation of Smiley and Michael. I find that the foregoing statement of facts is true and supported by the evidence presented.

'Other pertinent facts and points of evidence will be referred to in connection with the issues discussed elsewhere herein.

'The cause was ably presented to this Hearing Officer by Counsel for the Commission and Respondents. It consisted of a stipulation of fact, seven Commission witnesses, and fifty-six Commission Exhibits, and twelve witnesses and fifteen exhibits for Respondents. The testimony of the Witnesses was taken and has been transcribed by the Court provided stenotype reporter.

'The evidence was presented in complete form. The parties appeared to spare no effort to discover and present every pertinent facet of this case. For this reason we have for consideration numerous issues some of which appear to be matters of first impression under the Code of Professional Responsibility.

'I

'The first question presented concerns the applicability of the Canons of Professional Ethics and the Code of Professional Responsibility to this proceeding.

'The problem arises from the fact that at the inception of Respondents' employment (Oct. 1966) the ethical standards with which Indiana lawyers were charged were the Canons of Professional Ethics. (Canons) At the time of the termination of employment (Dec. 1971) lawyers were governed by the Code of Professional Responsibility (Code adopted March 8, 1971). At the hearing counsel for Respondents stated that their clients were willing to be tested by the highest ethical standards and they thereby waived their paragraph of answer questioning the applicability of the Code of Professional Responsibility. For this Respondents must be commended. Nonetheless, the Hearing Officer is still confronted with the question of whether or not it is within the power of Respondents to waive their rights and to consent to being judged by the Code rather than the Canons.

'The Supreme Court has plenary power over the admission and disbarment of attorneys authorized to practice before the Court of Indiana. This power includes the power to establish ethical standards which govern the conduct of lawyers. This the Indiana Supreme Court has done. In 1966 the standards were the Canons, in 1971 the standards were the Code.

'That there should be an established set of ethical standards promulgated in advance of any attempt to discipline lawyers for violation thereof is only 'fair play' and too obvious to require elaboration. However, there appears to be no reason why a lawyer may not, with his consent, be judged by a standard higher than that established by the Supreme Court. The Respondents have so consented. This Hearing Officer will, therefore, test the conduct of Respondents by both the Canons and the Code; and recommends this procedure to the Court.

'II

'The function of the hearing officer is to find facts, make conclusions of law, and, where so disposed, make recommendations for discipline or non-discipline to the Court.

'In viewing the proceedings here presented it must be remembered that we are required to determine whether Respondents have been guilty of some unethical conduct. In discharging this responsibility we must, of necessity, review not only what they did in representing their client; but also what they might have done.

'It is not required that we determine the correctness of the services rendered or legal advice given. Our, sole function is to examine Respondents' professional conduct and to measure that conduct against applicable ethical standards (here: the Canons and the Code).

'So far as human mentality is capable, we are to examine this conduct in the light of the circumstances existing or reasonably ascertainable at the time they occurred. 'Hindsight' in this exercise should be shunned, even though it may, at times, be difficult to separate in the body of the evidence.

'This is a classic conflict of interest case which presents, as well, the question of the scope of a lawyer's authority to proceed in the face of such conflict with the informed consent of all parties to the conflict.

'III

'Was there a conflict of interest between Smiley...

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