Gutman, Matter of, 582-S-188

• Decision Date: 25 September 1992
• Docket Number: No. 582-S-188,582-S-188
• Citation: 599 N.E.2d 604
• Parties: In the Matter of Phillip E. GUTMAN.
• Court: Indiana Supreme Court

Page 604

599 N.E.2d 604

In the Matter of Phillip E. GUTMAN.

No. 582-S-188.

Supreme Court of Indiana.

Sept. 25, 1992.

Robert W. McNevin, Indianapolis, for respondent.

Charles M. Kidd, Staff Atty., Indianapolis, for Indiana Supreme Court Disciplinary Com'n.

PER CURIAM.

This case is before us on a petition for reinstatement to the practice of law by Petitioner Phillip E. Gutman. After a hearing pursuant to Admission and Discipline Rule 23, Section 18, a majority of the Supreme Court Disciplinary Commission adopted the findings of the Hearing Officer and tendered to this Court its recommendation that the Petitioner should not be reinstated. The Petitioner moved for review, and the parties briefed their respective positions. Accepting the Commission's recommendation, this Court entered an order on June 8, 1992, denying the petition for reinstatement. This opinion more fully sets out the particular findings and our determination of how such findings support each of the elements found in Admis.Dis.R. 23(4)(b).

Admis.Disc.R. 23(4) allows a person who has resigned from the bar to petition for reinstatement after five years have elapsed from the date of the order accepting the resignation. If costs have been imposed, they must be paid before a petition for reinstatement may be filed. Subsection (b) of that rule further provides that the petition for reinstatement may be granted if the petitioner establishes by clear and convincing evidence before the Disciplinary Commission that:

(1) He desires in good faith to obtain restoration of his privilege to practice law;

(2) He has not practiced law in this State or attempted to do so since he was disciplined (3) He has complied fully with the terms of the order for discipline;

(4) His attitude towards the misconduct for which he was disciplined is one of genuine remorse;

(5) His conduct since the discipline was imposed has been exemplary and above reproach;

(6) He has a proper understanding of and attitude towards the standards that are imposed upon members of the Bar and will conduct himself in conformity with such standards;

(7) He can safely be recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and in general to aid in the administration of justice as a member of the Bar and an officer of the Courts; ...

Adopting the findings and determination of the Hearing Officer, the Disciplinary Commission concluded, by a four to two vote, that this Petitioner failed to sustain his burden of proof particularly under Rule 23(4)(b)(4) on the issue of remorse, (4)(b)(6) on the issue of understanding of and conformity with professional standards, and (4)(b)(7) on the issue of professional fitness. The Petitioner challenged this determination arguing that the substantial evidence of exemplary conduct since his resignation should be sufficient to sustain his burden under the rule.

In reviewing the Commission's findings and recommendation in this reinstatement proceeding, we employ the review process applicable to disciplinary actions before the Court. Said process involves a de novo examination of all matters tendered before the Court. The Hearing Officer's findings, in this instance findings adopted by a majority of the Commission, receive emphasis due to the unique opportunity for direct observation of witnesses, but they are not binding, and this Court reserves the right to reach the ultimate determination. In re Gemmer (1991), Ind., 566 N.E.2d 528; In re Kern (1990), Ind., 555 N.E.2d 479.

On September 6, 1985, this Court accepted Petitioner's resignation from the Bar tendered pursuant to Admission and Discipline Rule 23, Section 17, and concluded as moot the disciplinary action pending against him at that time. In re Gutman (1985), Ind., 482 N.E.2d 456.

The basis of the disciplinary complaint was criminal conduct culminating in a guilty verdict by a jury in the United States District Court for the Southern District of Indiana of conspiracy to commit extortion and interference with commerce by extortion, in violation of 18 U.S.C. S 1951. The opinion of the United States Court of Appeals, Seventh Circuit, which affirmed Petitioner's conviction, set out the circumstances surrounding the underlying crime. U.S. v. Gutman, 725 F.2d 417 (7th Cir.1984).

During the time in question, the Petitioner was the President Pro Tem of the Indiana Senate. The case grew out of the efforts of the Indiana Railroad Association to get Indiana's "full crew" law repealed. In 1972, the Indiana Senate passed a bill to this effect which became law. Sometime in 1973, an arrangement for "something in return" was effectuated between the executive director of the Indiana Railroad Association and three members of the Indiana Senate, one of whom was the Petitioner. The "something in return" was $1,000 per month for five years, to be split among the three senators. The payments were a precondition to the senators' assisting the railroads in getting favorable legislation in the future. The payments were made from 1973 to 1976. Each $1,000 check was sent to one of the senators who then sent checks for $333 to Petitioner and the third co-conspirator. The Petitioner deposited his checks in a personal account rather than in the account of his law partnership. The prosecution was allowed to present evidence regarding a $40,000 check from the Association to Petitioner, although this was not part of the charges. This check the Petitioner again deposited in a personal account and did not report as partnership income. According to a railroad president's testimony, the payment was a bribe or payoff for other assistance rendered by the Petitioner to the railroads, although the Petitioner claimed that this fee was for legal services.

The disciplinary complaint charged the Petitioner with engaging in illegal conduct involving moral turpitude and conduct which adversely reflects on his fitness to practice law, in violation of Disciplinary Rules 1-102(a)(1), (3) and (6); with using his public position to obtain a special advantage in legislative matters and accepting a thing of value when he knows that it is for the purpose of influencing his action as a public official, in violation of 8-101(A)(1) and (3); and accepting private employment in a matter in which he had substantial responsibility while he was a public employee and stating or implying that he is able to influence improperly or upon irrelevant grounds a legislative body in violation of 9-101(B) and (C) of the Code of Professional Responsibility for Attorneys at Law. Petitioner tendered his resignation after all appeals of his criminal conviction had been exhausted although he had already made arrangements with his law firm to wind down his professional responsibilities.

As a result of the conviction the Petitioner served approximately ten months in the Federal Penitentiary at Terre Haute, Indiana. Since October 7, 1985, he has been employed in the public finance department of a corporation where he develops projects and makes presentations in the tax exempt investment banking field almost exclusively to public service entities.

The unchallenged findings establish that more than five years have elapsed since the order accepting Petitioner's resignation; that he has paid all costs, and that he has substantially complied with the provisions of Admis.Dis.R. 23(26) and (27) requiring notice to clients. Under the specifically enumerated elements of Rule 23(4)(b), the findings establish that the petitioner desires in good faith to obtain restoration of his privilege to practice law; he has not practiced law in this state since the order accepting his resignation; he has complied fully with the terms of the Order Accepting Resignation; and his conduct since the discipline was imposed has been exemplary and above reproach.

Petitioner points out that the evidence in support of the latter issue is substantial. As part of this reinstatement process, the Disciplinary Commission sought input from the local Bar. In response, 21 letters were submitted, 19 of which strongly supported the reinstatement while two objected because of Petitioner's conviction for crimes concerning breach of the public trust. In addition, several witnesses testified favorably on behalf of the Petitioner on this point. Petitioner argues that this evidence of exemplary conduct since his removal from the Bar, or "clean time," conclusively establishes his rehabilitation and professional fitness.

In examining fitness to practice law, this Court exercises its duty to assure the public that those who hold licenses to provide service can be trusted to do so in a responsible and competent way. We consider whether an attorney can be trusted to keep his client's secrets, give effective legal advice, fulfill his obligations to the courts, and so on. In re Oliver (1986), Ind., 493 N.E.2d 1237.

Exemplary behavior since the misconduct is one of several elements which must be proved in order to successfully establish professional fitness after discipline. In addition, Admis.Dis.R. 23(4)(b) and particularly subsection (4)(b)(7) require a close analysis of a range of relevant issues. Because a petitioner for reinstatement comes before us with a record of impaired professional fitness, he must prove that he has overcome those weaknesses which produced the earlier misconduct, has been rehabilitated, and is now trustworthy. See In re Rosellini (1987), 108 Wash.2d 350, 739 P.2d 658, 660; In re Brown (1980), 166 W.Va. 226, 229, 273 S.E.2d 567, 570. Such petitioner bears a heavier burden than one who must prove fitness at an initial admission to the Bar. A petitioner for reinstatement must undergo a more exacting scrutiny, and a more rigorous showing of professional moral character is required for purposes of reinstatement than for original admission to the Bar. See In re Wegner (Minn....