Merritt, Matter of, No. 1074S210

Docket NºNo. 1074S210
Citation363 N.E.2d 961, 266 Ind. 353
Case DateJune 10, 1977
CourtSupreme Court of Indiana

Page 961

363 N.E.2d 961
266 Ind. 353
In the Matter of John Newton MERRITT.
No. 1074S210.
Supreme Court of Indiana.
June 10, 1977.

Richard L. Tandy, Greenwood, for appellant.

David B. Hughes, Trial Atty., Indiana Supreme Court Disciplinary Comm'n, Indianapolis, for appellee.

PER CURIAM.

This is disciplinary proceeding before this Court on an eight count amended complaint filed by the Indiana Supreme Court Disciplinary Commission against the respondent in this cause. A hearing on this complaint has been conducted by a Hearing Officer appointed by this Court and the Hearing Officer has filed his findings of fact, conclusions of law, and recommendations in this cause. Neither the respondent[266 Ind. 354] nor the Disciplinary Commission have petitioned for review.

This Court, after considering all matters which have been submitted in this cause, now adopts and accepts as its own, the findings of fact and conclusions of law submitted by the Hearing Officer, which are as follows:

FINDINGS OF FACT
GENERAL

1. The respondent, John Newton Merritt, was admitted to the Bar of the State of Indiana on September 22, 1971.

2. The respondent is currently living in Daphne, Alabama. Between September of 1971 and February of 1975, the respondent practiced law as a sole practitioner in Noblesville, Hamilton County, Indiana.

3. Respondent closed his law office December of 1974 and prior thereto his secretary, Vicki Shannon, left his employment but agreed to continue stopping by the Clerk's office in the Hamilton County Court House to pick up court notices for respondent.

Page 962

Neither Vicki Shannon or respondent had ever went (sic) to such Clerk's Office following the termination of her employment to pick up any Court notices with regard to respondent's cases.

4. The respondent states that he believed that the Hamilton County Bar Association would take care of his pending cases which said belief was based upon a conversation had with Michael Howard, an attorney of Hamilton County, held in the Offices of the Disciplinary Commission of this Court on March 7, 1975. The respondent did not contact the Hamilton County Bar Association to determine whether in fact such Association was taking care of the disposition of his cases.

COUNT I

1. The respondent was retained in April of 1973 to act as attorney for James W. Black for the purpose of defending Black on charges of Sodomy and Contributing to the Delinquency of a Minor which were then pending in the Hamilton County Superior Court and respondent entered his appearance on behalf of such defendant on April 27, 1973.

[266 Ind. 355] 2. Black did not have sufficient funds to pay attorney fees or to post bond. Black's only major asset was a substantial equity in real estate located at 5252 East 82nd Street, Indianapolis, Indiana, and Black desired to sell his real estate so that he could post bond and pay attorney fees.

3. On May 21, 1973, the Judge of the Hamilton Superior Court ordered that the defendant, Black, be transferred to the Indiana State Reformatory for safekeeping by making the following order:

'The Court, being duly advised, now orders the Sheriff of Hamilton County, Indiana, to transfer the defendant, James Black, to the custody of the Superintendent of the Indiana State Reformatory, Pendleton, Indiana, for the welfare of the defendant and for his personal safekeeping, and this order shall be sufficient authority for said Superintendent to retain the custody of said defendant all until further order of this Court. So ordered this 21st day of May, 1973.' Prior to Black's transfer to the Indiana State Reformatory for safekeeping, the respondent obtained from Black a promissory note in the amount of Two Thousand Dollars ($2,000.00) secured by a mortgage on Black's real estate as security for the payment of attorney fees. On April 27, 1973, the respondent filed a motion on behalf of defendant suggesting that such defendant was insane.

4. The respondent discussed the sale of Black's real estate with two different real estate agents representing competing real estate agencies.

5. On July 12, 1973 in an effort to obtain the signature of Black on a listing agreement for such real estate, the respondent took a real estate agent, Bruce Schwartz, to the Indiana State Reformatory at Pendleton, Indiana, where Black was then held for safekeeping.

6. In July of 1973, the Indiana State Reformatory policy required the approval of the Committing Court before an inmate held for safekeeping would be allowed to visit with persons other than the inmate's attorney of record.

7. On July 12, 1973, the respondent did not have Court permission for Bruce Schwarz to visit Black and the respondent advised the Prison Official in charge of approving visitation on said date that respondent was Black's attorney of record and that Schwartz was from respondent's law office or had come with respondent from his office on business. Respondent did not tell such prison official that Schwartz was not an attorney. Said Prison Official believed from respondent's statements that both the respondent and Schwartz were attorneys for Black and thereafter approved visitation for Black with respondent and Schwartz. Respondent[266 Ind. 356] was aware on such date that the Indiana State Reformatory would not allow Schwartz to visit with Black as such was against it's (sic) policy and respondent's representation with regard to Schwartz's capacity was therefore made for the purpose of obtaining visitation by Schwartz with Black.

Page 963

8. On July 16, 1973, the respondent returned to the Indiana State Reformatory with Bruce Schwartz for a second visit with Black at which time respondent made a similar misrepresentation to Prison Officials with regard to Schwartz's capacity.

9. Respondent knew that in order to obtain a fee for his services on behalf of Black that it would be necessary for Black's real estate to be sold. The respondent therefore had a personal interest in having Black list and sell his real estate with a realtor and respondent's representation with regard to Schwartz were not made solely to benefit his client.

10. As a result of respondent's representations with regard to Schwartz, the said Bruce Schwartz was able to visit Black within the confines of the Indiana State Reformatory without Court approval and such visits resulted in Black giving Schwartz a listing contract for Black's real estate. The listing contract given Schwartz was later determined to be ineffectual because Black had earlier given another listing agreement to another real estate agency which found a buyer for Black's real estate.

11. The order of the Hamilton Superior Court with regard to the safekeeping of the defendant, Black, as entered on May 21, 1973 did not specifically or expressly limit the visitation of the defendant, Black, except as such visitation was effected by the visitation policy of the Indiana State Reformatory.

12. Respondent's conduct as set forth above in gaining the admission of Bruce Schwartz into the Indiana State Reformatory to visit with James Black was a course of conduct involving dishonesty, fraud, deceit and misrepresentation.

COUNT II

1. In June of 1973, Phyllis Bucci was the estranged second childless wife of James W. Black, the defendant in the criminal action pending in the Hamilton Superior Court as set forth in the findings with regard to Count I.

2. On or about June 27, 1973, Mrs. Bucci was contacted by a real estate agent employed by the Gallery of Homes [266 Ind. 357] Agency and was requested to accompany such realtor to the office of respondent which she consented to do.

3. While at respondent's office on said date the respondent asked Mrs. Bucci to sign a quitclaim deed conveying all of her interest in the real estate located at 5252 East 82nd Street. The respondent did not know at the time who the record owners of said Black real estate were other than his client James W. Black.

4. Mrs. Bucci told respondent that she would convey her interest in said real estate only if she would receive a portion of the proceeds from the eventual sale of the real estate.

5. The respondent in writing agreed to pay Mrs. Bucci one-third of the net proceeds of the sale of such property subject to all liens and encumbrances thereon and thereafter she signed the quitclaim deed prepared by and tendered to her by the respondent. The quitclaim deed, unbeknownst to Mrs. Bucci, conveyed her interest in the real estate to respondent.

6. Thereafter the respondent conveyed his interest in such real estate to his client James W. Black and the real estate was sold. To date Mrs. Bucci has received no money from respondent or anyone else in payment or part payment for said conveyance.

7. In July of 1973 the respondent told his client James W. Black that Black's wife had executed a conveyance of her interest in the real estate and that she would get nothing from the sale of the real estate.

8. On the date that she signed such quitclaim deed, the said Phyllis Bucci did not own any legal interest in such real estate as the real estate was owned and titled solely in the name of her husband, James W. Black.

9. Respondent's conduct in obtaining the quitclaim deed from Phyllis Bucci and assuring her in writing that she would receive one-third of the net proceeds from the sale

Page 964

of such real estate constituted a course of conduct involving dishonesty, fraud, deceit and misrepresentation.
COUNT III

1. On June 20, 1974, a default judgment was entered against Jeffrey Martin in a paternity action entitled Sherry Paskins, b/n/f vs. Jeffrey Martin, Cause No. J5--359 in the Hamilton Circuit Court.

2. On August 15, 1974, the respondent entered his appearance in the above mentioned cause and filed a Motion to Correct Errors on behalf of the defendant Jeffrey Martin.

[266 Ind. 358] 3. At such time there was pending against such defendant a Verified Motion for Rule to Show Cause which was set for...

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5 practice notes
  • Practice and procedure: Patent and trademark cases rules of practice; representation of others before Patent and Trademark Office,
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...from numerous cases, including Silverman v. Commodities Futures Trading Commission, 562 F.2d 432, 439 (7th Cir. 1977); and In re Merritt, 363 N.E.2d 961, 971 (Ind. 1977). See also Florida Bar v. Murrell, 74 So.2d 221 (Fla. 1954). Under the proposed rules, a sanction would be a matter within......
  • Part II
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...from numerous cases, including Silverman v. Commodities Futures Trading Commission, 562 F.2d 432, 439 (7th Cir. 1977); and In re Merritt, 363 N.E.2d 961, 971 (Ind. 1977). See also Florida Bar v. Murrell, 74 So.2d 221 (Fla. 1954). Under the proposed rules, a sanction would be a matter within......
  • Walton, Matter of, No. 1079S277
    • United States
    • Indiana Supreme Court of Indiana
    • November 2, 1981
    ...N.E.2d 514; In re Snyder (1977), 267 Ind. 441, 370 N.E.2d 899; In re Turner (1977), 266 Ind. 625, 366 N.E.2d 166; In re Merritt (1977), 266 Ind. 353, 363 N.E.2d 961; In re Connor (1976), 265 Ind. 610, 358 N.E.2d 120. Unfortunately, as in most human endeavors, neglect, procrastination and no......
  • Jones v. State, No. 476S102
    • United States
    • Indiana Supreme Court of Indiana
    • June 10, 1977
    ...the instruction does not amount to an argument of a particular phase of the case. See Pfeifer v. State (1972), 152 Ind.App. 315, 283 [266 Ind. 353] N.E.2d 567. The court's instruction does not place undue emphasis on the giving of a Page 961 We find no reversible error in this record. The j......
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3 cases
  • Walton, Matter of, No. 1079S277
    • United States
    • Indiana Supreme Court of Indiana
    • November 2, 1981
    ...N.E.2d 514; In re Snyder (1977), 267 Ind. 441, 370 N.E.2d 899; In re Turner (1977), 266 Ind. 625, 366 N.E.2d 166; In re Merritt (1977), 266 Ind. 353, 363 N.E.2d 961; In re Connor (1976), 265 Ind. 610, 358 N.E.2d 120. Unfortunately, as in most human endeavors, neglect, procrastination and no......
  • Jones v. State, No. 476S102
    • United States
    • Indiana Supreme Court of Indiana
    • June 10, 1977
    ...the instruction does not amount to an argument of a particular phase of the case. See Pfeifer v. State (1972), 152 Ind.App. 315, 283 [266 Ind. 353] N.E.2d 567. The court's instruction does not place undue emphasis on the giving of a Page 961 We find no reversible error in this record. The j......
  • Aungst, Matter of, No. 481S118
    • United States
    • Indiana Supreme Court of Indiana
    • September 4, 1984
    ...Responsibility by similarly using the trust funds, without authority or permission, for his own purposes. See gen. In re Merritt, (1977) 266 Ind. 353, 363 N.E.2d The findings under this count portray an attorney who, as a trustee, for a period of time diverted trust funds under his control ......

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