Long, Matter of

• Decision Date: 03 January 1986
• Docket Number: 483S130,Nos. 483S129,s. 483S129
• Citation: 486 N.E.2d 1031
• Parties: In the Matter of S. Anthony LONG. In the Matter of Michael K. PHILLIPS.
• Court: Indiana Supreme Court

Page 1031

486 N.E.2d 1031

In the Matter of S. Anthony LONG In the Matter of Michael K. PHILLIPS.

Nos. 483S129, 483S130.

Supreme Court of Indiana.

Jan. 3, 1986.

Karl J. Stipher, Brent Taylor, Indianapolis, for respondent.

Sheldon A. Breskow, Gregory M. Fudge, Indianapolis, for Indiana Supreme Court Disciplinary Comn.

PER CURIAM.

These cases are now before the Court on verified complaints for disciplinary action filed by our Disciplinary Commission. In accordance with the procedures set forth in Admission and Discipline Rule 23, these causes were heard by an appointed hearing officer who now has tendered to this Court his findings of fact and conclusions of law. Both Respondents have petitioned for review of the findings of fact and the parties have filed briefs in support of their respective positions.

In that the Respondents' alleged misconduct emanates from the same general course of events arising in their practice of law as partners and members of a professional corporation, and in that the issues now before this Court are similar, these causes are consolidated for this opinion. ¹

The Respondents are each charged with engaging in conduct that compromises their professional duties in violation of Disciplinary Rules 5-105(A), (B) and (D), 8-101(A)(2) and (3) and 9-101(B) and (C); with charging and collecting excessive fees in violation of Disciplinary Rule 2-106(A); and with engaging in conduct involving dishonesty, deceit or misrepresentation, conduct prejudicial to the administration of justice and conduct which adversely reflects on their fitness to practice law in violation of Disciplinary Rules 1-102(A)(1), (4), (5) and (6) of the Code of Professional Responsibility. The alleged misconduct involves Respondent Phillips' service as attorney for the Warrick County Economic Development Commission in thirteen matters and Respondent Long's alleged participation in eleven of these transactions.

At the onset, it is noted that the record now before the Court consists of the findings of fact tendered by the Hearing Officer, the exhibits introduced during the course of the hearing and the pleadings of the parties. Neither party has filed a transcription of the testimony before the Hearing Officer.

Admission and Discipline Rule 23, Section 15(c), provides as follows:

(c) In the event a party does not concur in a factual finding made by the hearing officer and asserts error in such finding in the petition for review, such party shall file with the petition for review a record of all the evidence before the hearing officer relating to this factual issue. Within thirty (30) days of the filing of the transcript, opposing parties may file such additional transcript as deemed necessary to resolve the factual issue so raised in the petition for review. Any transcript filed must be settled, signed and certified as true and correct by the hearing officer. The fee paid for procuring a transcript or additional transcript shall be included in the costs of the disciplinary proceeding.

This Court has previously held that, in the event a party chose not to present all of the evidence, the findings of fact tendered by the Hearing Officer would constitute the factual basis upon which the allegation of misconduct would be measured. In re Sekerez (1984), Ind., 458 N.E.2d 229.

In their arguments to this Court on their petitions for review, Respondents cite to testimony before the Hearing Officer in support of their position. Additionally, Respondents point to various exhibits which were considered during the course of the hearing. This does not constitute the record of proceedings contemplated under the above noted rule and is not sufficient to controvert the Hearing Officer's findings of fact.

Thus, the factual findings of the Hearing Officer establish the factual basis of our assessment of misconduct under the verified complaints filed in these causes. This does not mean, however, this Court must accept the conclusions of fact and law reached by the Hearing Officer. In re Crumpacker (1978), 269 Ind. 630, 383 N.E.2d 36.

Predicated on the findings of fact tendered in these causes, this Court now finds that both Respondents are duly licensed attorneys subject to the disciplinary jurisdiction of this Court. From February 1978 until the fall of 1978, they were partners in a law firm; since the fall of 1978, Respondents have engaged in the practice of law as members of a professional corporation. Respondent Long, at all times relevant to the matters involved in this proceeding, has served as the County Attorney and Prosecuting Attorney for Warrick County, Indiana. In 1973, at the request of the members of the Chamber of Commerce in Boonville, Indiana, Respondent Phillips assisted in creation of the Warrick County Economic Development Commission (WCEDC). At the organizational meeting of this Commission, Phillips was retained as counsel. It was further decided that legal fees for the Commission and other expenses would be paid out of the proceeds of economic development and pollution control bond issues. Long did not participate in the creation or organization of the WCEDC and did not have involvement with this agency prior to 1978. Long, however, "pinch-hit" from time to time as EDC counsel and on occasion did serve as EDC counsel when Phillips was not available.

Before the fees at issue were charged, Phillips made a diligent inquiry to determine customary charges for similar legal services and was advised that charging on a percentage basis was the common practice. Phillips obtained a "suggested schedule" of fees for municipal bond issues approved by the Indiana State Bar Association. The fees charged in the transactions which are the subject of this complaint were all calculated on a percentage basis, were based on the suggested fee and, were within the range of fees customarily charged by attorneys in Indiana for similar services on behalf of Economic Development Commissions.

In the following cases, Phillips received a fee for his legal services performed on behalf of the WCEDC in connection with a pollution control or economic development bond issue sought by private entities and approved by the WCEDC, Warrick County Council and Warrick County Commissioners:

1) On January 7, 1975, Phillips received a fee of $11,000 in connection with a $5,500,000 bond issue sought by ALCOA; he performed an estimated 150 hours of work in this transaction;

2) On November 21, 1977, Phillips received a fee of $24,495 in connection with a $10,650,000 bond issue sought by ALCOA; he performed an estimated 200 hours of work in this transaction;

3) In the winter of 1978, Phillips received a fee of $1,500 in connection with a $300,000 bond issue sought by Stahl Equipment, Inc.; he performed an estimated 50-70 hours of work in this transaction;

4) On December 21, 1978, Phillips received a fee of $13,125 in connection with a $4,375,000 bond issue sought by ALCOA; he performed an estimated 150 hours of work in this transaction;

5) On October 19, 1979, Phillips received a fee of $13,750 in connection with a $550,000 bond issue sought by Warrick Cablevision, Inc.; he performed an estimated 150 hours of work in this transaction;

6) On April 1, 1980, Phillips received a fee of $4,000 in connection with a $200,000 bond issue sought by Warrick Cablevision, Inc.; he performed an estimated 50 hours of work in this transaction;

7) On April 7, 1980, Phillips received a fee of $15,000 in connection with a $1,000,000 bond issue sought by Amax, Inc.; he performed an estimated 100 hours of work in this transaction;

8) In 1980, Phillips received a fee of $23,600 in connection with a $2,360,000 bond issue sought by Ague Development Corporation; he performed approximately 175 hours of work in this transaction;

9) On April 5, 1982, Phillips received a fee of $30,000 in connection with a $10,255,000 bond issue sought by ALCOA; he performed approximately 200 hours of work in this transaction;

10) In 1983, Phillips received a fee of $24,950 in connection with a $12,475,000 bond issue...