Murray, Matter of

• Decision Date: 26 April 1977
• Docket Number: No. 175S21,175S21
• Citation: 362 N.E.2d 128,266 Ind. 221
• Parties: In the Matter of John Joseph MURRAY,
• Court: Indiana Supreme Court

Page 128

362 N.E.2d 128

266 Ind. 221

In the Matter of John Joseph MURRAY,

No. 175S21.

Supreme Court of Indiana.

April 26, 1977.

Saul I. Ruman, Hammond, for appellant.

David B. Hughes, Indianapolis, for appellee.

PER CURIAM.

This is a disciplinary proceeding before this Court on an amended four-count complaint filed by the Disciplinary Commission pursuant to Admission and Discipline Rule 23, Section 12. A hearing on the complaint, filed in this cause, was conducted by a Hearing Officer appointed by this Court, and the Hearing Officer has filed with this Court his findings of fact and conclusions of law. The respondent now petitions this Court for review of these findings and conclusions, and further petitions for oral argument. Both parties have filed briefs in this matter. This Court now denies the respondent's petition for oral argument.

In his petition for review, the respondent first asserts that he was denied due process of law by the Hearing Officer's refusal to grant several discovery motions prior to the hearing on the merits of this disciplinary proceeding. The record demonstrates that after the complaint was served on the respondent, a motion for the production of documents and interrogatories were filed under this cause. Additionally, the respondent filed his notice to take depositions of various witnesses. In response to these pleadings, the Disciplinary Commission moved to quash the deposition subpoenas. At a pre-trial conference, both parties argued the motion to quash, which the Hearing Officer eventually granted; it was the Hearing Officer's conclusion that Admission and Discipline Rule 23, as then in effect, did not authorize the discovery sought by the respondent.

At the time this matter was presented for consideration to the Hearing Officer, Admission and Discipline Rule 23, Section 14(a) provided that the rules of pleading and practice in civil cases shall not apply and disciplinary proceedings shall be heard on the complaint and answer. No provision of the rule authorized discovery. ¹

The respondent's argument appears to be the assertion of a denial of procedural due process. While the parameters of such right remain undefined, it has been generally held that the right of procedural due process, as applied to the states by the 14th Amendment of the Constitution of the United States, and as applied in this state under Article 1, Section 12, of the Constitution of Indiana, includes notice and an opportunity to be heard. Mueller v. Mueller (1972), 259 Ind. 366, 287 N.E.2d 886; State ex rel. Red Dragon Diner v. Superior Court of Marion County, etc., et al. (1959), 239 Ind. 384, 158 N.E.2d 164; Neill v. Ridner (1972), 153 Ind.App. 149, 286 N.E.2d 427.

This due process standard has been applied to proceedings involving the suspension or revocation of the license to practice law, and it has been generally held that such proceedings must provide the respondent attorney with notice of the charges and an opportunity to be heard. In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed. 117, reh. den. 391 U.S. 961, 88 S.Ct. 1833, 20 L.Ed. 874; In re Stivers (1973), 260 Ind. 120, 292 N.E.2d 804.

The respondent does not cite, nor is this Court aware of any authority which expands the requirements of due process to require pre-trial discovery in disciplinary proceedings. Additionally, from an examination of the record of proceedings in this matter, it appears that all witnesses subpoenaed by the respondent were available to testify at the hearing, the respondent was provided with a list of witnesses prior to the hearing, and the respondent was afforded the opportunity to cross-examine the witnesses who were called by the Disciplinary Commission. Accordingly, this Court concludes that the failure to grant discovery prior to the trial on the merits of this cause did not constitute an abridgment of the respondent's right to due process of law.

The respondent next asserts that the complaint filed in this cause enlarged upon the charges which were contained in the grievance initially submitted by the complainants. In particular, the respondent objects to that portion of the complaint alleging undue influence by a third party, arguing that the respondent has not had an opportunity to answer such charges at the administrative level of the disciplinary process.

The complaint filed by the Disciplinary Commission in all disciplinary cases is predicated on the grievance filed, but it would be absurd to hold that the grievance must be strictly construed, and the complaint must be narrowly limited to charges specified in the grievance. The vast majority of grievances are filed by persons not skilled in the law; the function of the Disciplinary Commission is to review the grievances, dismiss those which are baseless, and then frame a complaint so as to place the alleged misconduct within the structure of the Code of Professional Responsibility.

This procedure was followed by the Disciplinary Commission in this case; and, although the complainants did not specifically allege undue influence, facts were asserted in the grievance which would call the respondent's attention to the case in question. Accordingly, we find that the issue of undue influence was present at the administrative level of the disciplinary process. Also, it appears without question that the constitutional requirement of notice has been met.

Additionally, the respondent, in his petition for review, contends that he was not afforded an opportunity to question the complaining witness with leading questions, as though on cross-examination. The record in this proceeding does not support the respondent's contention. The complaining witness was subpoenaed, but was never called as a witness by either party. This assertion of error is without merit.

The remaining portion of respondent's petition for review challenges the sufficiency of the evidence to support the findings of fact and conclusions of law reached by the Hearing Officer. The parties to this action differ as to the 'standard of review' this Court should apply when examining the matters submitted by the Hearing Officer in a disciplinary proceeding. Before this Court can consider the factual issues raised, this question of the appropriate standard of review must be resolved.

It should be noted at the outset that a disciplinary proceeding is an original action in this Court. Ind.Const., Art. 7, § 4. As such, this Court sits as a trial court and must determine issues of fact; this clearly distinguishes the disciplinary proceeding from an appeal. In re Pawlowski (1959), 240 Ind. 412, 165 N.E.2d 595. Recognizing this distinction, in the absence of any agreement by the parties as to factual issues, this Court examines and reviews all matters which have been submitted in a particular cause. An examination of the previous opinions of this Court demonstrates that the findings of fact are only the initial starting point for review by this Court. See, In re Wood (1976), Ind., 358 N.E.2d 128; In re Smith (1976), Ind., 351 N.E.2d 1; In re Bradburn (1966), 248 Ind. 29, 221 N.E.2d 885; In re Holovachka (1964), 245 Ind. 483, 198 N.E.2d 381. It is through this complete examination of all matters that this Court makes its ultimate findings of fact upon which a determination of misconduct is weighed.

The findings of the Hearing Officer thus are reviewed within this Court's consideration of all relevant matters. These findings do receive emphasis in that the Hearing Officer observes the witnesses, absorbs the nuances of unspoken communication, and by this observation attaches credibility to the testimony, but such findings are not necessarily controlling on this Court and never have been. In re Pawlowski, supra.

In the end, the findings of fact reached by this Court are the product of this Court's examination of the entire record with the above noted consideration being given to the findings of fact submitted by the Hearing Officer. Thus, there is no standard of review as applied within appellate procedure, but merely the application of a process of determination whereby this Court finds facts as is required in all original actions.

Under Court I of the complaint, the respondent was charged with creating a knowingly false alibi for a client, who was indicted in a criminal proceeding, and allowing and assisting in the introduction of evidence of this false alibi during the trial of this criminal defendant.

From our examination of all matters which have been filed in this cause and after reviewing the transcript of proceedings, this Court finds that on April 16, 1971, Jerry Laine was indicted by the Starke County Grand Jury for the crime of theft by assisting one Edward Ronkowski escape from the detection and punishment for the commission of the crime of theft. Laine and Ronkowski came to the respondent and informed the respondent that Edward Ronkowski had, in fact, purchased and received stolen property and that Laine was present at the time of purchase. Edward Ronkowski paid the respondent, who, then, agreed to represent both Laine and Ronkowski in the criminal proceedings; the respondent filed an appearance for Laine and did represent him during his trial in October, 1971.

Prior to the trial of Jerry Laine, Mildred Laine, the defendant's mother, advised the respondent that Jerry Laine worked the day shift on April 1 and 2. Also, prior to the aforementioned trial, the defendant's wife, Mary Laine, met with the Respondent, Edward Ronkowski, and others in the respondent's law office, at which time she told them that she kept a private record of the dates and hours her husband worked, which showed that he had worked the day shift at Ronk's Truck Stop on April 1 and 2, 1971. The respondent, or Edward Ronkowski in the respondent's presence, instructed Mary Laine to discard and forget about her records, as they were going to use other time sheets at the trial in support of Jerry Laine's...