Oliver, Matter of, 784

Decision Date12 June 1986
Docket NumberNo. 784,784
Citation493 N.E.2d 1237
PartiesIn the Matter of Stephen A. OLIVER. S 299.
CourtIndiana Supreme Court

Ronald E. Elberger, Indianapolis, for respondent.

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


Respondent Stephen A. Oliver, an attorney admitted to the bar of this Court, has been charged under a complaint alleging that he engaged in conduct which violates the Code of Professional Responsibility for Attorneys at Law. In accordance with our procedural rules in disciplinary actions, a hearing officer has conducted a hearing and filed a report to this Court. The Disciplinary Commission has petitioned for review of the officer's findings and both parties have filed briefs.

Respondent stands charged with violation of three separate sections of the Code:

1. Rule 1-102(A)(3)--illegal conduct involving moral turpitude,

2. Rule 1-102(A)(5)--conduct prejudicial to the administration of justice, and

3. Rule 1-102(A)(6)--conduct that adversely reflects on his fitness to practice law.

We find that Oliver's behavior constituted a violation of the second of these and did not constitute a violation of the other sections of the Code. Accordingly, disciplinary sanctions are being imposed.


The facts surrounding the conduct alleged in the complaint are not substantially disputed. On November 29, 1982, the Respondent and his brother-in-law went to a local tavern in Martinsville, Indiana, between 5 and 7 p.m. While at the tavern, Oliver consumed alcoholic beverages. Respondent left the tavern in his 1981 Honda and headed toward his residence using a state highway. En route to his home, Respondent failed to negotiate a curve in the roadway and struck a tree. This was a one-car accident and Respondent was the only person injured. Approximately one hour after the accident, the alcohol content of Respondent's blood was measured at .23 per cent.

Three days later, Oliver was charged by information in the Morgan County Court with the offense of operating a vehicle while intoxicated, a Class A misdemeanor. On December 14, 1982, Oliver pleaded guilty to this charge. The trial judge withheld acceptance of this plea on the condition that Respondent complete fifty hours of community service, attend alcohol education school, contribute $250.00 to charity in lieu of a fine and commit no further offense for a period of one year. Oliver met the terms of this informal probation and it was successfully terminated on January 16, 1984.

1. Conduct Involving Moral Turpitude

The hearing officer appointed by this Court, upon her review of the evidence, found that Oliver's conduct did not constitute illegal behavior involving moral turpitude. Since disciplinary matters are original actions, this Court sits as fact-finder. While the hearing officer is in a superior position to judge the evidence put before her, we examine and review all matters which have been submitted in a particular cause. The findings of fact rendered by the hearing officers are the initial starting point for that review. In re Murray (1977), 266 Ind. 221, 362 N.E.2d 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," this Court described it earlier this year as "akin to that required in criminal trials," one reserved for those actions which are penal in nature. Orkin Exterminating Co. v. Traina (1986), Ind., 486 N.E.2d 1019, 1022.

The general definition of moral turpitude, as employed in disciplinary proceedings, was set forth in Baker et al. v. Miller (1956), 236 Ind. 20, 24, 138 N.E.2d 145, 147:

In proceedings of this character moral turpitude has always been a controlling factor in the disciplinary action to be taken by the court where there has been a charged of misconduct by a member of the bar. The problem of defining moral turpitude is not without difficulty. There is certain conduct involving fraud, perjury, theft, embezzlement, and bribery where there is no question but that moral turpitude is involved. On the other hand, because the law does not always coincide exactly with principles of morality there are cases that are crimes that would not necessarily involve moral turpitude. Acts which normally at common law were not considered wrong, do not by reason of statutory enactment making them a crime, add any element of moral turpitude. For example, willfully running a stop light or exceeding the speed limit does not necessarily involve moral turpitude.

Webster's International Dictionary (2d Edition) defines "turpitude" as: "Inherent baseness or vileness of principle, words, or actions; depravity."

Black's Law Dictionary (4th Edition) defines "moral turpitude" as: "An act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man."

Because this problem of definition makes it easy to lose track of what Rule 1-102(A)(3) seeks to accomplish, some courts have attempted to describe moral turpitude in terms of the objective of the rule. The Supreme Court of California has adopted a definition which seems cogent:

The paramount purpose of the "moral turpitude" standard is not to punish practitioners but to protect the public, the courts and the profession against unsuitable practitioners. (See Hallinan v. Committee of Bar Examiners (1966) 65 Cal.2d 447, 417-472, 55 Cal.Rptr. 228, 421 P.2d 76; In re Rothrock (1940) 16 Cal.2d 449, 454, 106 P.2d 907.) To hold that an act of a practitioner constitutes moral turpitude is to characterize him as unsuitable to practice law. In re Higbie [ (1972) ], 6 Cal.3d 562, 570, 99 Cal.Rptr. 865, 869, 493 P.2d 97, 101.

In re Fahey (1973), 8 Cal.3d 842, 849, 106 Cal.Rptr. 313, 317, 505 P.2d 1369, 1373.

This formulation is consonant with the ABA Model Rules of Professional Conduct which use the term "a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness." Rule 8.4. The Indiana State Bar Association has recently recommended that this Court adopt a revised version of the same rule, which provides that it is professional misconduct to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects." Rule 8.4(b).

Commission of some crimes establishes moral turpitude on its face. These include crimes that necessarily involve an intent to defraud, intentional dishonesty for personal gain, or behavior particularly repugnant to accepted moral standards. Commission of other offenses may or may not involve moral turpitude, and thus conviction of other offenses is not grounds for discipline without additional proof of circumstances surrounding the offense. Hallinan, supra.

Acts which this Court has declared to involve moral turpitude have included standing naked in a window masturbating and waving to attract attention (In re Levinson (1983), Ind., 444 N.E.2d 1175), and misrepresenting the reasons why a bank failed to honor a check which was issued without sufficient funds and failing to appear in court after receiving a summons, necessitating issuance of a bench warrant (In re Schaumann (1983), Ind., 446 N.E.2d 1304). Where the conduct involved driving while intoxicated and another offense, such as possession of marijuana and hashish, this Court has determined that the behavior constituted illegal conduct involving moral turpitude. Matter of Jones (1984), Ind., 464 N.E.2d 1281. Considering Jones in light of cited precedent, this Court noted that it was not simply possession of marijuana which made the respondent guilty of violating the Code:

The fact that marijuana was involved in both disciplinary actions does not mean that all issues in such cases are forever decided. Our analysis involves the consideration of Respondent's conduct, in toto, not the rigid application of discipline because a particular allegation is raised.

Id., at 1282.

Thus, the respondent's violation in Jones was not the result of any one of the acts with which he had been charged, but the result of consideration of all three offenses.

The only other jurisdiction which has considered whether driving while intoxicated is an illegal offense involving moral turpitude has concluded that it is not. Matter of Walker (1977), S.D., 254 N.W.2d 452. The only reported cases under which driving while intoxicated, standing alone, has served as a basis for discipline arose in states under whose statutes any conviction for any criminal offense would serve as a basis for discipline. In re Enright (1938), 160 Or. 313, 85 P.2d 359, rev. on other grounds 239 Or. 82, 396 P.2d 216 (1964) (any misdemeanor or felony conviction a basis for discipline); Matter of Costigan (1972), 39 App.Div.2d 961, 333 N.Y.S.2d 984 (suspension required upon any felony conviction).

While cases involving driving while intoxicated as a basis for attorney discipline are sparse, many states have concluded that driving while intoxicated is not an offense involving moral turpitude in the context of statutes or rules authorizing impeachment of witnesses through introduction of evidence showing that the witness has been convicted of a crime involving moral turpitude. State v. Fournier (1963), 123 Vt. 439, 193 A.2d 924; State v. Deer (1955), Ohio Comm.Pl., 57 O.O. 493, 129 N.E.2d 667; Fee v. State (Tenn.Cr.App.1973), 497 S.W.2d 748; Diamond v. State (1972), 49 Ala.App. 68, 268 So.2d 850; Compton v. Jay (Tex.1965), 389 S.W.2d 639. One state has held that driving while intoxicated is not an offense involving moral turpitude for purposes of alcoholic beverage regulation. Flowers v. Benton County Beer Board (1957), 202 Tenn. 56...

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