Moore, Matter of, No. 1281S343

Docket NºNo. 1281S343
Citation453 N.E.2d 971
Case DateSeptember 26, 1983
CourtSupreme Court of Indiana

Page 971

453 N.E.2d 971
In the Matter of Robert E. MOORE.
No. 1281S343.
Supreme Court of Indiana.
Sept. 26, 1983.

Page 972

Thurman M. DeMoss, Franklin, for respondent.

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

PER CURIAM.

This proceeding is before this Court on a single count Verified Complaint filed by the Disciplinary Commission of the Supreme Court pursuant to Admission and Discipline Rule 23, Section 12. As provided in Admission and Discipline Rule 23, a Hearing Officer was appointed, conducted a hearing, and has tendered his findings. The Respondent now seeks review of these findings by this Court. Both parties have filed briefs in support of their respective positions.

Before reviewing the evidence of alleged misconduct, a general challenge to this disciplinary proceeding must be addressed. In his petition for review Respondent asserts that procedural due process is not met by the use of the preponderance of evidence test set forth in this Court's disciplinary rules. Citing Santosky v. Kramer (1982), 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599. Respondent argues that a finding of misconduct involving unlawful behavior should be predicated, at least, on a "clear and convincing evidence" standard of proof.

Santosky v. Kramer, supra, involved the termination of parental rights; applying the factors set forth in Mathews v. Eldridge (1976), 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18, a majority of the United States Supreme Court concluded that a "fair preponderance of the evidence standard" in such proceeding was inconsistent with due process. 1 In the course of this analysis, the Court noted that an intermediate standard of proof (clear and convincing) 2 has been mandated where the individual interests at stake in a particular state proceeding are both "particularly important" and "more substantial than the mere loss of money" or necessary to preserve fundamental fairness in a government-initiated proceeding that threatened an individual with "a significant deprivation of liberty" or "stigma". Santosky v. Kramer, 455 U.S. at 756, 102 S.Ct. at 1395.

The interests at stake in the authority cited by Respondent are the fundamental liberty interests associated with the freedom of choice in matters of family life. The interests at stake in the present proceeding are those associated with the judicial license to practice law in this jurisdiction.

Page 973

While the latter is important, it pales in significance when compared to the liberty interests incidental to family life, the adverse social consequence of civil commitment [Addington v. Texas (1979), 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323], the deprivation incidental to deportation [Woodby v. IMS (1966), 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362] or the overtones of denaturalization [Chaunt v. U.S. (1960), 364 U.S. 350, 81 S.Ct. 147, 5 L.Ed.2d 120]. This difference clearly distinguishes the present case from the cited authority.

An attorney disciplinary action is neither criminal nor civil. This type of proceeding is not intended for the purpose of punishment, but rather to determine the fitness of an officer of the court to continue in that capacity and to protect the courts and public from unfit persons. In re Roberts (1983), Ind. 442 N.E.2d 986. The effective administration of justice, the fair resolution of disputes, and the preservation of individual liberties through advocatory representation relate in good measure to the effectiveness of this disciplinary process.

The procedures adopted by this Court to charge, hear and review issues of professional misconduct recognize the delicate balance of the competing interests. A Respondent is afforded discovery, given timely and complete notice, allowed to confront accusers in an open hearing and permitted a full review by this Court. In re Roberts, Supra. We are inclined to conclude that the Constitution of the United States does not mandate the application of a rigidly defined standard of proof in disciplinary proceedings where the attorney charged with professional misconduct is afforded a fair opportunity to respond to such allegation.

However, even though an intermediate standard of proof may not be required, we are pursuaded that such standard is an appropriate description...

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15 practice notes
  • Matter of Doe, No. CIV-90-1020-JB.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 4, 1992
    ...v. Peck, 88 Conn. 447, 452-53, 91 A. 274, 276 (1914); State ex rel. Florida Bar v. Dawson, 111 So.2d 427, 431 (Fla.1959); In re Moore, 453 N.E.2d 971, 973 (Ind.1983) (per curiam); In re Czachorski, 41 Ill.2d 549, 554, 244 N.E.2d 164, 167 (1969); State v. Scott, 230 Kan. 564, 566, 639 P.2d 1......
  • Rivkind, Matter of, No. SB-88-0043-D
    • United States
    • Supreme Court of Arizona
    • May 10, 1990
    ...failure to appear for a client at a hearing, and accepting cocaine as payment for legal services warrants disbarment); Matter of Moore, 453 N.E.2d 971 (Ind.1983) (prosecutor who possessed two envelopes of marijuana seeds, about 750 grams of marijuana and thirty marijuana plants is disbarred......
  • Oliver, Matter of, No. 784
    • United States
    • Indiana Supreme Court of Indiana
    • June 12, 1986
    ...128. As for the level of proof required, violations need be proven by "clear and convincing evidence." Matter of Moore (1983), Ind., 453 N.E.2d 971. Although this standard is frequently described as being intermediary between "preponderance of the evidence" and "beyond a reasonable doubt," ......
  • Smith, Matter of, Nos. 18S00-8802-DI-255
    • United States
    • Indiana Supreme Court of Indiana
    • June 13, 1991
    ...an officer of the court to continue in that capacity and to protect the courts and public from unfit persons. In re Moore (1983), Ind., 453 N.E.2d 971. To hold, as the Respondents would have us, that the close scrutiny of attorney/client transactions in the pursuit of private civil rights i......
  • Request a trial to view additional results
15 cases
  • Matter of Doe, No. CIV-90-1020-JB.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 4, 1992
    ...v. Peck, 88 Conn. 447, 452-53, 91 A. 274, 276 (1914); State ex rel. Florida Bar v. Dawson, 111 So.2d 427, 431 (Fla.1959); In re Moore, 453 N.E.2d 971, 973 (Ind.1983) (per curiam); In re Czachorski, 41 Ill.2d 549, 554, 244 N.E.2d 164, 167 (1969); State v. Scott, 230 Kan. 564, 566, 639 P.2d 1......
  • Rivkind, Matter of, No. SB-88-0043-D
    • United States
    • Supreme Court of Arizona
    • May 10, 1990
    ...failure to appear for a client at a hearing, and accepting cocaine as payment for legal services warrants disbarment); Matter of Moore, 453 N.E.2d 971 (Ind.1983) (prosecutor who possessed two envelopes of marijuana seeds, about 750 grams of marijuana and thirty marijuana plants is disbarred......
  • Oliver, Matter of, No. 784
    • United States
    • Indiana Supreme Court of Indiana
    • June 12, 1986
    ...128. As for the level of proof required, violations need be proven by "clear and convincing evidence." Matter of Moore (1983), Ind., 453 N.E.2d 971. Although this standard is frequently described as being intermediary between "preponderance of the evidence" and "beyond a reasonable doubt," ......
  • Smith, Matter of, Nos. 18S00-8802-DI-255
    • United States
    • Indiana Supreme Court of Indiana
    • June 13, 1991
    ...an officer of the court to continue in that capacity and to protect the courts and public from unfit persons. In re Moore (1983), Ind., 453 N.E.2d 971. To hold, as the Respondents would have us, that the close scrutiny of attorney/client transactions in the pursuit of private civil rights i......
  • Request a trial to view additional results

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