Kern, Matter of

• Decision Date: 21 June 1990
• Docket Number: No. 49S00-8806-DI-547,49S00-8806-DI-547
• Citation: 555 N.E.2d 479
• Parties: In the Matter of Kenneth C. KERN.
• Court: Indiana Supreme Court

Page 479

555 N.E.2d 479

In the Matter of Kenneth C. KERN.

No. 49S00-8806-DI-547.

Supreme Court of Indiana.

June 21, 1990.

Kenneth Kern, Indianapolis, Mark Lane, Washington, D.C., for respondent.

Sheldon A. Breskow, Executive Secretary, Indianapolis, for Ind. Supreme Court Disciplinary Com'n.

PER CURIAM.

This case is before the Court on a two count complaint charging the Respondent, Kenneth C. Kern, with violating the Code of Professional Responsibility and the Rules of Professional Conduct for Attorneys at Law which superseded the Code effective January 1, 1987. The Hearing Officer appointed pursuant to Admission and Discipline Rule 23 has submitted her findings concluding that the Respondent engaged in misconduct under Count II but finding insufficient evidence to prove misconduct under Count I. The Respondent has petitioned for review of the findings, and the Commission has responded. The Respondent has also filed a Motion to Strike the Disciplinary Commission's Brief and a Request for Sanctions wherein he contends that the charges are frivolous and unfounded and that costs of this proceeding should be assessed against the Commission.

The review process employed in disciplinary cases involves a de novo examination of all matters presented to the Court. In re Hampton (1989), Ind., 533 N.E.2d 122. This includes a review not only of the Hearing Officer's report but also of the entire record tendered in the case. The Hearing Officer's findings receive emphasis due to the unique opportunity for direct observation of witnesses, but this Court reserves the right to make the ultimate determination. In re Stanton (1986), Ind., 492 N.E.2d 1056. Respondent's objections to the findings and conclusions will be resolved within the context of this review process. Respondent's Motion to Strike is hereby denied.

Upon review of all matters submitted before us, this Court finds that the Respondent was admitted to the Bar of this State in 1965 and is, thus, subject to this Court's disciplinary jurisdiction. The Respondent represented Dr. Lon Kaminsky, a Tippecanoe County chiropractor, in various criminal, civil and licensing board charges and complaints filed by the Tippecanoe County Prosecutor and the Indiana State Attorney General. The Respondent also served as counsel for Kaminsky et al. in a civil suit in the United States District Court, Southern District of Indiana, filed against attorneys from the above described offices and others associated with the charges and complaints.

The federal law suit was the result of Kaminsky's and the Respondent's belief that a conspiracy existed between those offices and the American Medical Association in an attempt to stop Kaminsky's chiropractic practice specifically and to interfere with the chiropractic practice in this state in general. The Hearing Officer also found that there had developed a "get" Kern mentality at the Attorney General's Office and the Tippecanoe County Prosecutor's Office because of Respondent's style and his representing Kaminsky in the federal law suit.

Count I of the complaint charges that, by conspiring with a third party to defraud the Office of the Attorney General and to illegally obtain confidential information, much of which was comprised of attorney work product, the Respondent circumvented a disciplinary rule through the actions of another; engaged in illegal conduct involving moral turpitude; engaged in conduct involving dishonesty, fraud, deceit and misrepresentation; engaged in conduct that is prejudicial to the administration of justice; and engaged in conduct that adversely reflects on his fitness to practice law, all in violation of Disciplinary Rules 1-102(A)(2), (3), (4), (5) and (6) and 7-102(A)(8) of the Code of Professional Responsibility for Attorneys at Law.

Relative to this count, we find that, in the summer of 1986, Respondent's client, Kaminsky, hired Peter Lisa as investigator. Lisa worked out of the Washington D.C. area for Excalibur Research, Inc., and had been interested in the subject of organized medicine's opposition to chiropractic and other alternative health services.

Kaminsky met with Lisa at Respondent's office often and, at times, with the Respondent present. Lisa was paid through Respondent's office out of an escrow account in the name of Kaminsky. Payments were authorized by Kaminsky, and the checks were signed either by Respondent or his office manager. The money in Kaminsky's escrow account which was used to pay for Lisa's services was deposited by Kaminsky's benefactors and did not come from Kaminsky.

Lisa visited the Office of the Attorney General and the Tippecanoe Prosecuting Attorney's Office and eventually was able to review their internal files pertaining to Kaminsky and to obtain copies of requested information.

Lisa indicated that he was investigating quackery and health care fraud and cited a number of names of persons in government, including the name of Congressman Claude Pepper, but was both vague and confusing as to the exact connection. Just prior to Lisa's appearance, the Attorney General's Office had received a questionnaire from Congressman Pepper's office, and it was assumed that Lisa had some official role with Pepper or Pepper's committee. The second day at the Attorney General's office, Lisa was introduced as having been sent from Pepper's office. Lisa did nothing to correct this misconception and in fact accepted and placed in his briefcase the questionnaire which the Attorney General's Office had received from Congressman Pepper's office and desired to return to the Congressman.

A similar scenario took place at the Tippecanoe Prosecutor's Office where Lisa confirmed that he was being helped in his investigation by the Attorney General's Office and was accepted as working for Congressman Pepper. Thus, he obtained access to records and documents he would never have seen had his true identity been known. The Hearing Officer found that Lisa was able to obtain access to files and records in these offices also because of their failure to require credentials and verification of his status.

Under this guise, Lisa, who was at this time working for Kaminsky, accompanied a deputy prosecuting attorney to a pretrial hearing in the criminal case against Kaminsky. Neither Kaminsky, the Respondent who represented him, nor Lisa acknowledged one another on that occasion.

Thereafter, Lisa returned to the Attorney General's Office, but by this time, both the Attorney General's office and the Tippecanoe County Prosecutor's Office were suspicious of Lisa, and, when he was introduced as someone from Pepper's office, Lisa stated that he was with Congressman Andrew Jacob's office. Lisa was later arrested but he was released because charges were not filed within 72 hours.

Lisa was in the Respondent's office on various occasions during 1986 to copy documents on Respondent's copy machine, including documents obtained from the Attorney General's Office and from the Tippecanoe County Prosecutor's Office, to meet with the Respondent and Kaminsky and to pick up checks drawn for him.

Lisa gave some of the materials so obtained to Kaminsky who turned them over to Respondent for his use in answers and discovery conducted in the various Kaminsky cases. Lisa also delivered the documents he had obtained from the Attorney General's Office to the office of Congressman Jacobs with a cover letter indicating that he had collected the documents for attorney Kern. Lisa later explained that he did so because he felt Kern's name would carry greater weight.

The Hearing Officer found that Respondent did not direct Lisa's activities but knew or should have known that, when dealing with the Tippecanoe Prosecutor's Office and the State Attorney General, Lisa was not going to announce himself as working on behalf of Kaminsky.

The Hearing Officer concluded that there is insufficient factual basis to hold the Respondent responsible for Lisa's conduct and to find misconduct. The Disciplinary Commission has not challenged this conclusion. Nonetheless, as set out previously in this opinion, the review process applicable to attorney disciplinary cases reserves for this Court the right to make the ultimate determination based upon a de novo review of all submitted matters.

Upon such review, we conclude that the evidence is insufficient to prove that the Respondent, by conspiring with Lisa to defraud, engaged in illegal conduct involving moral turpitude or conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Disciplinary Rules 1-102(A)(3) and (4). However, the extent of Respondent's contact with Lisa, Respondent's subsequent use of documents obtained by Lisa, Respondent's awareness of the prosecutorial and adversary nature of the relationship between the offices and Respondent's client, Respondent's collusion with the apparent deception perpetrated by Lisa on the Tippecanoe Deputy Prosecutor indicates that the Respondent had more than ample information to be...