Moore, Matter of
| Decision Date | 15 May 1996 |
| Docket Number | No. 79S00-9406-DI-576,79S00-9406-DI-576 |
| Parties | In the Matter of E. Kent MOORE. |
| Court | Indiana Supreme Court |
The respondent, E. Kent Moore, has been charged with engaging in conduct intended to disrupt a tribunal, committing a criminal act which adversely reflects on his fitness as a lawyer, and engaging in conduct prejudicial to the administration of justice. 1 In accordance with Ind.Admission and Discipline Rule 23, a Hearing Officer was appointed; a hearing was conducted; and the Hearing Officer has tendered his report to this Court. The respondent now petitions the Court for review of the Hearing Officer's report. Both parties have filed briefs relating to the petition for review.
This Court's review in disciplinary cases is de novo in nature and involves consideration of the entire record submitted in the case. In re Robak, 654 N.E.2d 731 (Ind.1995); In re Blackwelder, 615 N.E.2d 106 (Ind.1993). The Hearing Officer's report, being a product of direct observation of witnesses, is given appropriate emphasis, but this Court is the final arbiter of disputed facts and ultimately determines all factual and legal conclusions. In re Robak, supra.; In re Levinson, 604 N.E.2d 599 (Ind.1992); In re Gemmer, 566 N.E.2d 528 (Ind.1991).
Applying the above-noted standard of review, this Court now finds that on December 17, 1993, the respondent, representing a father and grandparents seeking visitation rights, appeared in the Tippecanoe Circuit Court for a hearing before the judge. Prior to the scheduled hearing, the respondent and opposing counsel met with the judge in chambers to discuss the resolution of issues before the court. During the meeting, opposing counsel suggested that the respondent was not being truthful. As the respondent and opposing counsel were leaving the chambers, the respondent told opposing counsel that he was offended by his comment and took opposing counsel's tie in his hand. After the respondent released the tie, opposing counsel called the respondent a "son of a bitch." The respondent struck opposing counsel with one blow causing him to fall back onto a table in the judge's chambers. The judge ordered the attorneys out of his office and thereafter recused himself from the case.
In his petition for review, the respondent challenges factual and legal conclusions offered by the Hearing Officer. The respondent asserts that at the time the above-noted contact took place between the respondent and opposing counsel, the court was not in session. Building on this rickety premise, the respondent concludes that his conduct was not intended to disrupt a tribunal. The respondent further asserts that his conduct was a "simple battery" and not a "violent" act; therefore, the criminal act in this case did not adversely reflect on the respondent's fitness as an attorney. Lastly, the respondent argues that since the judge recused himself, the hearing was not delayed, and the parties settled the case in the end, the conduct of the respondent was not prejudicial to the administration of justice.
This Court finds little merit to the arguments offered by the respondent. The respondent is attempting to diminish the totality of the circumstances by artfully isolating the components. We do not embrace this analytical approach in disciplinary matters. This Court assesses disciplinary misconduct on the totality of the circumstances found in the case.
Evidence should not be weighed in fragmentary parts, but rather viewed as a whole to see or understand the pattern which it presents. It has been said that test is not to be applied to isolated items, but rather to the probative force of all the items when put together. In re Pawlowski, 240 Ind. 412, 165 N.E.2d 595 (1960).
The fact that the parties had concluded their discussion before the trial court judge does not mean that the responsibility for professional decorum before a tribunal automatically ceased. The significant facts are that immediately after concluding discussion in chambers of a case pending before the judge, the respondent grabbed and struck opposing counsel thereby knocking him over a table in the judge's office. When the crucial events occurred, the respondent was before a tribunal. See, In re McClure, 652 N.E.2d 863 (Ind.1995). Accordingly, we find that the respondent intentionally disrupted a tribunal and, accordingly, violated Ind. Professional Conduct Rule 3.5(c).
The respondent is also charged with violating Prof.Cond.R. 8.4(b) by engaging in a criminal act that adversely reflects on his honesty, trustworthiness, or fitness as a lawyer in other respects. As noted in the Comment to this rule, "although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice." There must be a nexus between the criminal act and one of the three personal qualities set forth in Prof.Cond.R. 8.4(b), to-wit: honesty, trustworthiness, or fitness as an attorney. In re McClure, supra; In re Stults, 644 N.E.2d 1239 (Ind.1994). The respondent's attempt to somehow characterize the battery in this case as inconsequential misses the point. Again, the totality of the circumstances establishes that respondent struck an opposing counsel while exiting from a conference in a judge's chambers. The force of the blow knocked opposing counsel across a table in the office. We find no difficulty in concluding that the requisite nexus is present. The respondent's conduct clearly and unequivocally reflected adversely on his fitness as an attorney. The respondent violated Prof.Cond.R. 8.4(b).
The respondent raises a "no harm, no foul" defense to the charge that striking opposing counsel in chambers was conduct prejudicial to the administration...
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