Kesler, Matter of, 877S602

• Decision Date: 15 November 1979
• Docket Number: No. 877S602,877S602
• Parties: In the Matter of John A. KESLER.
• Court: Indiana Supreme Court

Page 574

397 N.E.2d 574

272 Ind. 161

In the Matter of John A. KESLER.

No. 877S602.

Supreme Court of Indiana.

Nov. 15, 1979.

John A. Kesler, pro se.

Robert W. McNevin, Indianapolis, for appellant.

[272 Ind. 162] David B. Hughes, Indianapolis, for appellee.

DISCIPLINARY ACTION

PER CURIAM.

This proceeding is before the Court on a Verified Complaint for Disciplinary Action filed by the Indiana Supreme Court Disciplinary Commission pursuant to Admission and Discipline Rule 23, Section 12. Under the procedures set forth in Admission and Discipline Rule 23, this Court appointed a Hearing Officer, a hearing was held and the Hearing Officer has filed Findings of Fact relative to the allegations raised in the Verified Complaint. Respondent now petitions this Court for review of the Hearing Officer's findings. Both parties have filed briefs and a Brief of Amicus Curiae has been received and considered by this Court. Additionally, Respondent has requested oral argument, which is now denied.

In his Petition for Review and Brief, the Respondent has raised several issues of a general nature challenging the validity of this disciplinary proceeding. These matters must be resolved before assessing the evidence of unethical behavior presented in this case.

Respondent asserts that the charges raised in the complaint should have been dismissed in that the alleged professional misconduct was the subject matter of a previous proceeding in the Vigo Circuit Court. Respondent contends that the doctrines Res Judicata and Estoppel by Judgment preclude the relitigation of these issues.

The Verified Complaint filed in this cause charges the Respondent with professional misconduct in the course of the administration and distribution of the Estate of Elsie M. Grammer. The complainant who brought this matter to the attention of the Disciplinary Commission was the primary beneficiary under the estate, John L. Smith. At approximately the same time Mr. Smith forwarded his grievance, he filed his objections to the Final Report in the Grammer estate. The later pleading was eventually dismissed by the Judge of the Vigo Circuit Court pursuant to a Verified Stipulation of Fact tendered by Mr. Smith to the Court. Respondent now argues that by accepting this stipulation, the Vigo Circuit Court adjudicated the facts and issues now before this Court under the present disciplinary proceeding.

The argument presented by Respondent fails to recognize that the Vigo Circuit Court did not have jurisdiction to resolve the issues now before this Court.

The Constitution of the State of Indiana vests this Court with exclusive jurisdiction in matters involving the admission and discipline of attorneys. Indiana Constitution, Article 7, Section 4. By reason of this constitutional duty, this Court has adopted substantive standards of performance and procedures for the adjudication, as an Original Action in this Court, of alleged misconduct. The distinction between the authority of this Court in disciplinary matters and the validity of a trial court's judgment has prompted this Court to note on several occasions that professional misconduct by the members of the Bar of this State is to be determined independent from criminal or civil matters out of which allegations of misconduct may arise. In re Mann, (1979) Ind., 385 N.E.2d 1139; In re Crumpacker, (1978) Ind., 383 N.E.2d 36; In re Wireman, (1977) Ind., 367 N.E.2d 1368, Cert. denied, 436 U.S. 904, 98 S.Ct. 2234, 56 L.Ed.2d 402. Thus, while the Vigo Circuit Court had authority to determine and resolve the issues raised by reason of objections filed by Mr. Smith, it was without authority to bind this Court to a decision embracing professional misconduct. The evidence presented in this cause indicates that the decision by the Vigo Circuit Court did not purport to invade the province of this Court.

In view of the above considerations, we now find that the Hearing Officer did not err in denying Respondent's Motion to Dismiss. We further find that Respondent's assertion, as raised in his Answer and Petition for Review, to the effect that the determination of the Vigo Circuit Court precludes consideration of allegations of misconduct charged under this complaint, is without merit.

Respondent has also argued that he was twice placed in jeopardy by reason of the Vigo Circuit Court's consideration of the objections and this Court's disciplinary procedure. Double jeopardy is a constitutional doctrine applicable in criminal proceedings; a disciplinary action under Admission and Discipline Rule 23 is not a criminal proceeding. Accordingly, we now find that the assertion of double jeopardy is also without merit.

In his Petition for Review the Respondent specifically incorporates several additional paragraphs of his Answer challenging the constitutionality of this proceeding. Respondent argues that he should have been afforded an opportunity to personally appear before the Disciplinary Commission prior to the Commission's decision to file a complaint in this cause. He asserts that the failure to allow this meeting was a denial of due process.

Respondent has not cited, nor are we aware of, any authority to support Respondent's argument. The procedures set out in Admission and Discipline Rule 23 provide for an appropriate notice and hearing at which time an individual can confront those making allegations against him and raise matters in defense. These rules meet the requirements of due process. See, In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117, Reh. denied, 391 U.S. 961, 88 S.Ct. 1833, 20 L.Ed.2d 874; In re Wireman, supra ; In re Murray, (1977) Ind., 362 N.E.2d 128. Additionally, Respondent has not shown any prejudice by reason of the lack of a hearing with the Disciplinary Commission prior to the filing of the complaint. In light of these considerations, we find no constitutional infirmity in the proceedings under this cause.

The other issues incorporated from Respondent's Answer are the assertions that this proceeding denied him his constitutional right to enter into a private contract with Mr. Smith and that the disciplinary process and various provisions of the Code of Professional Responsibility are unconstitutionally vague. These issues, however, are raised in a general manner and not supported by specific argument or any citation of authority. We, accordingly, find that these issues, as they stand without sufficient specificity, do not present an issue for determination by this Court.

In another portion of his Petition for Review the Respondent claims that he did not receive a fair hearing before the Hearing Officer. It is asserted that the Hearing Officer was biased and prejudiced against the Respondent, that politically slanted news accounts prevented a fair hearing, that "leaks" of information to the press precluded fair consideration, and that the Disciplinary Commission did not serve Respondent with a copy of the Commission's proposed findings.

In support of his allegation of bias and prejudice, the Respondent sets forth the Hearing Officer's decisions concerning the credibility of witnesses, the denial of a continuance, and the adoption of the Commission's proposed findings. The Respondent, however, has not pointed to any evidence in addition to these decisions. If adverse rulings and findings, without additional corroboration, could establish bias or prejudice, this Court would never be able to affirm a determination in any type of review. Accordingly, we must find the evidence in this cause insufficient to support a finding of bias or prejudice.

We further find that Respondent's assertions that press coverage of this matter, alleged "leaks" of confidential information, and the failure of the Commission to serve a copy of proposed findings do not demonstrate error in these proceedings. Respondent contends that certain events transpired and that the news coverage of these proceedings led to his defeat in a political campaign, but he has not shown nor does the record demonstrate that these alleged events improperly influenced the Hearing Officer or created an environment in which a fair hearing could not be conducted. We further note that it is this Court and not the Hearing Officer which makes the ultimate determination of fact in a disciplinary proceeding. In re Crumpacker, supra; In re Murray, supra. It being our responsibility to make such decisions we note that the extra judicial circumstances related by the Respondent are not relevant to our determination.

In the remaining portion of his Petition for Review, the Respondent asserts error in the Hearing Officer's findings and argues that this Court should arrive at certain factual and legal conclusions by reason of the evidence of record. These issues will be resolved through this Court's determination of what acts were done by the Respondent and whether or not this conduct constitutes a violation of the Code of Professional Responsibility.

As previously noted, the Respondent is charged with unethical behavior while acting as attorney for the Estate of Elsie Grammer. More specifically, the Respondent is charged with violating Disciplinary Rules 1-102(A)(4) and (6) of the Code of Professional Responsibility by filing and swearing to a false and misleading "Petition for Partial Distribution" in the Grammer estate; with violating Disciplinary Rule 9-102(A) by commingling client's funds; and with violating Disciplinary Rule 7-101(A)(3) by engaging in conduct which prejudiced and damaged John L. Smith.

Having examined all matters submitted in this cause, we now find that Respondent was admitted to the Bar of Indiana in 1951 and is engaged in the private practice of law.

On April 2, 1973, the Respondent and John L. Smith ("Smith") were appointed Co-Executors of the Last Will of Elsie M. Grammer. Respondent was also the attorney for the Estate. The Co-Executors qualified, gave their joint and several surety bond in the sum of...