Lockyear, In re

• Decision Date: 08 January 1974
• Docket Number: No. 772S97,772S97
• Citation: 261 Ind. 448,305 N.E.2d 440
• Parties: In the Matter of Thomas LOCKYEAR.
• Court: Indiana Supreme Court

Page 440

305 N.E.2d 440

261 Ind. 448

In the Matter of Thomas LOCKYEAR.

No. 772S97.

Supreme Court of Indiana.

Jan. 8, 1974.

Thomas Lockyear, Gaylon Clark, Evansville, for respondent.

John B. Ramming, Indianapolis, K. Richard Hawley, Mount Vernon, for appellee.

ARTERBURN, Chief Justice.

This proceeding was instituted by a 'Verified Complaint For Public Reprimand' filed July 18, 1972. The Honorable Paul R. Schnaitter was appointed Hearing Officer and heard the issues involved. On November 6, 1973, he filed his Findings of Fact and Recommendations stating that the Disciplinary Commission failed to prove its allegation that the fee charged by the Respondent was excessive; therefore, the Respondent was not guilty of misconduct. These Findings of Fact and Recommendations are as follows:

FINDINGS OF FACT AND RECOMMENDATIONS OF HEARING OFFICER

The undersigned, heretofore appointed by this Honorable Court as Hearing Officer and Judge in the above entitled and numbered cause under the provisions of Admission and Discipline Rule 23 of this Court, respectfully reports to this court as follows:

Preliminary Proceedings and Hearing

The Disciplinary Commission of this Court filed a Verified Complaint for Public Reprimand against the Respondent in this Court on July 18, 1972. On the same day, notice was issued by the Clerk of this Court to the Sheriff of Vanderburgh County, Indiana, for service on the Respondent. This notice was served on the Respondent July 20, 1972 and an appropriate return made on that date.

At the time the Complaint was filed, the Disciplinary Commission also filed a Petition for Appointment of Assistant Counsel. Pursuant thereto Hon. K. Richard Hawley, an attorney of Mt. Vernon, Indiana, was approved as Assistant Counsel by this Court August 21, 1972.

Thereafter Hon. Warren W. Martin, Jr., Judge of the Clark Superior Court of Clark County, Indiana, was appointed by the Court as Hearing Officer and Judge in the cause. His death April 20, 1973 left the appointment vacant.

The undersigned was appointed by order of this Court dated June 7, 1973, as corrected June 12, 1973. An oath was taken on that date and transmitted to the Court. After telephone communication with the attorneys for the Disciplinary Commission and the Respondent, the Hearing Officer and Judge issued a Notice of Hearing setting the matter for hearing at 9:00 o'clock A.M. July 17, 1973 in the Court Room of the Vanderburgh Circuit Court in the Vanderburgh County Court House at Evansville, Indiana. A copy of the notice is attached as an exhibit to this report and marked 'Exhibit 1'.

The hearing convened at the time and place fixed in the notice. The Disciplinary Commission appeared by John B. Ramming Executive Secretary, and K. Richard Hawley, Assistant Counsel, and the Respondent appeared in person and by his attorney, Gaylon Clark, of the Evansville Bar.

After being convened the hearing was moved, as permitted by the terms of the notice, to the Court Room of Hon. Paul Luster, J.P., directly across the hall from the Circuit Court Room.

At the hearing it was agreed that the Disciplinary Commission would be given an opportunity after the hearing to file a brief with the Hearing Officer, the Respondent might then file an answer brief and the Disciplinary Commission then have the opportunity to reply to the answer brief. The cause was to be considered submitted after all briefs were filed. The Hearing Officer received the final brief October 9, 1973.

Attached hereto are also the following Exhibits:

Exhibit 2--Verified Complaint for Public Reprimand in Cause No. 772--S--97

Exhibit 3--Notice of Filing of Verified Complaint and Sheriff's return

Exhibit 4--Petition for Appointment of Assistant Counsel

Exhibit 5--Order Approving Appointment of Assistant Counsel

Exhibit 6--Order Appointing Hearing Officer

Exhibit 7--Corrected Order Appointing Hearing Officer

Exhibit 8--Oath of Hearing Officer

At the hearing July 17, 1973 evidence was heard from the following witnesses: Bette Jane White, Joe S. Hatfield, Robert H. Hayes, James M. Buthod, Herman L. McCray, James D. Lopp, Hon. Martin W. Newman, Hon. William H. Miller, William D. Stephens, Thomas Lockyear and Robert D. Norton, and there were received in evidence the depositions of Jack Norman VanStone, Gene E. Brooks and Robert H. Hahn. The Hearing Officer also considered the following documents admitted into evidence:

Certified copy of Order for Admission on Examination

Certified copy of Oath of Thomas Lockyear

Entry Gibson Circuit Court, Cause No. C--70--341, May 11, 1971 (Exhibit A)

Entry Gibson Circuit Court, Cause No. C--70--341, June 2, 1971 (Exhibit B)

Entry Gibson Circuit Court, Cause No. C--70--341, June 2, 1971 (Exhibit C)

Entry Gibson Circuit Court, Cause No. C--70--341, September 14, 1970 (Exhibit D)

Copy of check, White Trucking Company, dated October 22, 1971 (Exhibit E)

Affidavit of Bette Jane White 12/23/73 (Exhibit F)

The parole testimony was taken in shorthand by Mrs. Nadine Lodge, the official Court Reporter for the Fifth Judicial Circuit. This testimony has been transcribed, certified to by the reporter and by the Hearing Officer.

The items of documentary evidence precede the certificates to the transcript, and the three depositions are contained in a separate envelope transmitted herewith. The briefs filed by the parties are also filed herewith.

Findings of Fact

The Respondent, Thomas Lockyear, was admitted to the practice of law in the State of Indiana December 4, 1957, and has continuously since then maintained an office in the City of Evansville, Indiana.

He is a person of excellent reputation, good standing in the community and, excepting for the situation which is the subject of this proceeding, has never been charged with unethical conduct.

On or about October 21, 1970 Jack White, a resident of the Town of Owensville in Gibson County, Indiana, sued his wife, Bette Jane White, for divorce in the Gibson Circuit Court. Seeking legal counsel she was referred to the Respondent by another attorney and employed Respondent to represent her November 1, 1970.

After considering the situation and relying on Mrs. White's belief that Mr. White would 'come to his senses' there was filed for Mrs. White by the Respondent a cross-complaint in the divorce proceeding seeking a limited divorce or separation form bed and board. No order for support or fees pendente lite was asked for or obtained, since the defendant had the power to write checks on a joint bank account for her support. At or near the time of filing the cross-complaint the Respondent charged Mrs. White a fee of $200.00. At the time Respondent was retained, Respondent was advised by Mrs. White that her husband had offered her money and droperty of a total value of approximately $40,000 in settlement of her property rights and alimony.

The expected change in Mr. White's attitude did not develop. A change of venue was taken from Hon. Harvey W. Garrett, the Regular Presiding Judge of Gibson Circuit Court, and Hon. Howard King, the then Judge of the 57th Judicial Circuit, was selected and qualified as Special Judge in the case.

On May 17, 1971 the defendant's cross-complaint was dismissed and the divorce case was submitted to the Court on plaintiff's complaint and the defendant's answer in denial. During the trial the plaintiff denied the existence of an agreement by the terms of which Mrs. White was to recover property and alimony of an aggregate of approximately $100,000, which Mrs. White and her attorney, the Respondent, understood as having been agreed upon before the cause was submitted. The Trial Judge thereupon granted the plaintiff (husband) an absolute Divorce from the defendant (wife) and reserved further proceedings in connection with the determination of property rights and alimony. A decree was entered accordingly which also gave the parties ten days within which to enter into a settlement of their property rights. On June 2, 1971, the parties not having agreed, the Special Judge disqualified himself on the ground that he had heard the evidence as to the settlement and the dispute thereon to such an extent as to possibly bias and prejudice him. The parties thereupon agreed that he nominate a panel for the selection of a successor Special Judge to conduct further proceedings in the case. Thereafter Hon. Ernest Tilly, Jr., Judge of the Knox Circuit Court, was selected and the reserved part of the divorce case was submitted to Judge Tilly, sitting as Special Judge in the Gibson Circuit Court. Thereafter on September 14, 1971 Judge Tilly decided the property and alimony matter, awarding Mrs. White as her sole and separate property a joint bank account in the approximate sum of $4,500, certain real estate owned by Jack White in Owensville, Indiana, together with the household furnishings located therein, a promissory note in the amount of $12,500 made by her mother and secured by a mortgage, and alimony in the sum of $100,000 payable $34,000 in cash and $66,000 payable at the rate of $6,000 beginning January 15, 1972 and a like amount each January thereafter to and including January 15, 1982. The Court further ordered that the plaintiff pay attorneys fees in the sum of $4,700 to defendant's attorney, Thomas Lockyear. This award to Mrs. White, Ignoring the award for attorneys fees, amounted to approximately $125,000. Judge Tilly's award was made, as far as the evidence before the Hearing Officer shows, without any amendment of the pleadings, without any evidence as to the work done by the defendant's attorney, and without any evidence as to the value of such services in Gibson County or any other county in Indiana. The sole criteria before Judge Tilly as shown by the evidence adduced at the hearing held by the Hearing Officer, were the record in the case and the amount of Mrs. White's award.

Between the time he received the $200 retainer in the latter part of 1970 and the date of the decree, the...