Mann, Matter of, No. 1177S799

Docket NºNo. 1177S799
Citation385 N.E.2d 1139, 270 Ind. 358
Case DateFebruary 22, 1979

Page 1139

385 N.E.2d 1139
270 Ind. 358
In the Matter of Robert G. MANN.
No. 1177S799.
Supreme Court of Indiana.
Feb. 22, 1979.

Page 1140

Forrest B. Bowman, Jr., Indianapolis, for respondent.

Sheldon A. Breskow, Indiana Supreme Court Disciplinary Com'n, Indianapolis, for Supreme Court Disciplinary Comn.

[270 Ind. 359] PER CURIAM.

This cause is now before this Court on a Verified Complaint filed by the Disciplinary Commission of the Supreme Court pursuant to Admission and Discipline Rule 23, Section 12. As provided for by Admission and Discipline Rule 23, a Hearing Officer was appointed. The cause was heard and the Hearing Officer has filed his findings of fact and conclusions of law. The Respondent has petitioned this Court for review of the findings and conclusions and both parties have submitted legal briefs relative to the issues now before this Court.

Under the Verified Complaint Respondent is charged with transmitting a sum of money from his client in a criminal matter to one of the arresting officers for the purpose of improperly influencing the outcome of his client's criminal prosecution. More specifically, the Respondent is charged with counselling and assisting his client in fraudulent and illegal acts, with engaging in illegal conduct and with engaging in conduct contrary to a Disciplinary Rule in violation of Disciplinary Rules 7-102(A)(7) and (8). The Respondent, additionally, is charged with stating or implying that he was able to improperly influence a public official, violating a Disciplinary Rule, circumventing a Disciplinary Rule, engaging in illegal conduct involving moral turpitude, engaging in conduct involving dishonesty and deceit, engaging in conduct prejudicial to the administration of justice and engaging in conduct which adversely reflects in his fitness to practice law in violation of Disciplinary Rules 9-101(C) and 1-102(A)(1), (2), (3), (4), (5) and (6) of the Code of Professional Responsibility.

In his Petition for Review the Respondent raises an issue which goes to the core of this case and must be resolved at the outset, to-wit: the use in a disciplinary proceeding of testimony given by the Respondent in a criminal proceeding under a grant of immunity.

The record in this case establishes that the Respondent testified in a criminal case tried in Marion Criminal Court, Division 4, such testimony being given under a grant of immunity pursuant to the terms of I.C. 35-6-3-1, which provides as follows:

35-6-3-1 (9-1601a). Compelling incriminating testimony Immunity from prosecution Exceptions. Any witness, in any criminal proceeding, before a court or grand jury, who refuses to answer any question and/or produce any evidence of any kind on [270 Ind. 360] the ground that he may be incriminated thereby, may be ordered by the court to answer any question and/or produce any evidence upon a written request by the prosecuting attorney: Provided, That the witness shall be provided with timely notice and a separate hearing on the merits of the order. Unless the court finds that the issuance of the order would be clearly contrary to public interest, the witness shall comply with the order of the court. If, but for this section the witness would have been privileged to withhold the answer given or the evidence produced, he shall not be prosecuted or subjected to penalty or forfeiture for or on account of any answer given or evidence produced: Provided, further, That such immunity shall not be allowed in the case of any perjury, false swearing or contempt committed in answering, or failing to answer, or in producing, or failing to produce, evidence in accordance with the order of the court. (Acts 1969, ch. 153, Sec. 1, p. 317.)

The testimony given under such grant has been used by the Disciplinary Commission throughout the entire disciplinary process and is crucial to a finding of misconduct.

Page 1141

The Respondent challenges the use of this immunized testimony asserting that such violated the terms of the Criminal Court Order granting the immunity and violated I.C. 35-6-3-1 in that a disciplinary sanction would constitute a penalty or forfeiture. This issue is one of first impression for this Court.

The argument of the Respondent fails to recognize the distinction in the law between a criminal proceeding and a disciplinary action. In some instances similar considerations may apply, but these two bodies of law are different in origin and are not parallel in all particulars.

Under the Constitution of the State of Indiana, this Court is given exclusive jurisdiction relating to the disbarment or discipline of attorneys. Ind.Const., Art. 7, Sec. 4. Thus, it is this Court's constitutional responsibility to preserve the integrity of the legal profession and safeguard the public from those who do not meet acceptable standards of professional behavior. This Court has adopted rules of conduct and rules of procedure to effectuate this constitutional mandate.

Standards of criminal conduct are legislative in origin. The legislative branch...

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16 practice notes
  • Smith, Matter of, Nos. 18S00-8802-DI-255
    • United States
    • Indiana Supreme Court of Indiana
    • June 13, 1991
    ...the Bar of this state is independently determined from any other proceeding. In re Kern, supra; In re Hampton, supra; In re Mann (1979), 270 Ind. 358, 385 N.E.2d 1139. Within this disciplinary context, the determination of a proper fee requires consideration of the interests of both client ......
  • Phelps v. Sybinsky, No. 49A05-9912-CV-554.
    • United States
    • Indiana Court of Appeals of Indiana
    • October 20, 2000
    ..."exclusive province" to regulate attorney conduct by requiring attorneys to violate the Rules of Professional Conduct. See Matter of Mann, 270 Ind. 358, 361, 385 N.E.2d 1139, 1141 (1979) (citing Ind. Const. Art. VII, § 4). As explained above, the Indiana law requires that, once a child has ......
  • Fletcher, Matter of, No. 98S00-9406-DI-563
    • United States
    • Indiana Supreme Court of Indiana
    • September 1, 1995
    ...legal activity. In re The Matter of Public Law No. 154-1990 (H.E.A. 1044), (1990), Ind., 561 N.E.2d 791, 792, citing In re Mann (1979), 270 Ind. 358, 385 N.E.2d 1139. This Court has exclusive jurisdiction in matters involving the admission and discipline of attorneys. In re Kesler (1979), 2......
  • Hawkins v. Auto-Owners (Mut.) Ins. Co., AUTO-OWNERS
    • United States
    • Indiana Court of Appeals of Indiana
    • October 2, 1991
    ...this court. It is the exclusive province of the Indiana Supreme Court to regulate professional legal activities. Matter of Mann (1979) 270 Ind. 358, 385 N.E.2d 1139; Ind. Const. Art. 4, Sec. 4; Ind.Rules of Procedure, Admission and Discipline Rule 23 Sec. 1. We will therefore confine our di......
  • Request a trial to view additional results
16 cases
  • Smith, Matter of, Nos. 18S00-8802-DI-255
    • United States
    • Indiana Supreme Court of Indiana
    • June 13, 1991
    ...the Bar of this state is independently determined from any other proceeding. In re Kern, supra; In re Hampton, supra; In re Mann (1979), 270 Ind. 358, 385 N.E.2d 1139. Within this disciplinary context, the determination of a proper fee requires consideration of the interests of both client ......
  • Phelps v. Sybinsky, No. 49A05-9912-CV-554.
    • United States
    • Indiana Court of Appeals of Indiana
    • October 20, 2000
    ..."exclusive province" to regulate attorney conduct by requiring attorneys to violate the Rules of Professional Conduct. See Matter of Mann, 270 Ind. 358, 361, 385 N.E.2d 1139, 1141 (1979) (citing Ind. Const. Art. VII, § 4). As explained above, the Indiana law requires that, once a child has ......
  • Fletcher, Matter of, No. 98S00-9406-DI-563
    • United States
    • Indiana Supreme Court of Indiana
    • September 1, 1995
    ...legal activity. In re The Matter of Public Law No. 154-1990 (H.E.A. 1044), (1990), Ind., 561 N.E.2d 791, 792, citing In re Mann (1979), 270 Ind. 358, 385 N.E.2d 1139. This Court has exclusive jurisdiction in matters involving the admission and discipline of attorneys. In re Kesler (1979), 2......
  • Hawkins v. Auto-Owners (Mut.) Ins. Co., AUTO-OWNERS
    • United States
    • Indiana Court of Appeals of Indiana
    • October 2, 1991
    ...this court. It is the exclusive province of the Indiana Supreme Court to regulate professional legal activities. Matter of Mann (1979) 270 Ind. 358, 385 N.E.2d 1139; Ind. Const. Art. 4, Sec. 4; Ind.Rules of Procedure, Admission and Discipline Rule 23 Sec. 1. We will therefore confine our di......
  • Request a trial to view additional results

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