Pawlowski, In re

• Decision Date: 30 March 1960
• Docket Number: No. 29751,29751
• Citation: 165 N.E.2d 595,240 Ind. 412
• Parties: In the Matter of Joseph T. PAWLOWSKI.
• Court: Indiana Supreme Court

Page 595

165 N.E.2d 595

240 Ind. 412

In the Matter of Joseph T. PAWLOWSKI.

No. 29751.

Supreme Court of Indiana.

March 30, 1960.

Rehearing Denied April 26, 1960.

Leo L. Cook and Harry S. Taylor, South Bend, for respondent.

Arthur A. May, Robert E. Zimmerman, Joseph A. Roper, South Bend, amicus curiae.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Asst. Atty. Gen., Robert W. McNevin, Dep. Atty. Gen., Casimir J. Pajakowski, South Bend, Elbert Gilliom, Indianapolis, for the Disciplinary Commission.

ARTERBURN, Chief Justice.

The Disciplinary Commission of the Supreme Court of this State has filed an information for the disbarment of Joseph T. Pawlowski, a practicing attorney in South Bend, St. Joseph County, Indiana. This proceeding comes before us pursuant to Rule 3-22. The Attorney General prosecuted the proceedings. The Hon. Clifford O. Wild was appointed by this Court as Commissioner to hear the evidence and report his findings. A hearing was held before the Commissioner, who has filed a transcript of the evidence heard, along with findings.

The primary issue formed on the information and answer was whether or not with respect to six specifications therein, the respondent's conduct as an attorney was such as to constitute grounds for his disbarment.

We should keep in mind that this proceeding is not an appeal but rather an original action filed in this Court. We are sitting as any trial court, hearing a matter referred to a commissioner for the purpose of taking evidence and submitting his recommendations along with the evidence to the court for action. We may thus review and weigh the evidence and are not limited in its examination as on an appeal.

In Lowe's Revision of Works' Indiana Practice Forms 3, §§ 53.65 and 53.66, pp. 334, 335, it is said:

'The report of a master commissioner is advisory only and is merely a means of bringing the evidence before the court, and as an aid to the court in the performance of its duties. The court is not bound to accept the master's findings or conclusions, but may accept such as it approves and reject such as it disapproves. Where the evidence is properly reported, and the correctness of the master's finding in challenged, the court must review the evidence, and, if the finding is erroneous, disregard it, and make the proper decision itself.

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'The distinction between a trial by a referee and by a commissioner should be observed. When a matter is referred to a master commissioner, as such, the trial of the issues is not submitted to him, but he is simply to hear the evidence and report the evidence or the evidence and the facts. The trial still remains with the court, and it is for the court to apply the law to the facts, make a finding thereon, and render judgment accordingly.'

Without enlarging upon this opinion, we point out that in Flanagan's Indiana Trial and Appellate Practice, § 1712, Comment 8, p. 337, substantially the same comment is made, namely that the report of a commissioner is 'only advisory to the court'. Indiana, in that respect, conforms with the overwhelming rule prevailing elsewhere. 7 C.J.S. Attorney and Client § 37, p. 804; 33 A.L.R., p. 748.

We not only have the power, but the duty, to re-examine the evidence, regardless of the recommendation and ultimate finding of the Commissioner to satisfy ourselves as to the facts in the case.

The information consisted of six separate specifications.

Specification No. 1 with the Commissioner's finding reads as follows:

'(1) That, on or about the 8th day of December, 1947, while said Attorney Pawlowski was engaged in the defense of one Nelson Williams in the State of Michigan, Berrien County, said Joseph T. Pawlowski did offer to Joseph Killian a bribe if the charges then pending against said Nelson Williams and Roman Luczkowski, who was similarly charged in a companion case, were dismissed; that said Joseph Killian was then and there the duly elected, qualified and acting prosecuting attorney in and for the County of Berrien, State of Michigan.'

'(Disciplinary Commissions' Exhibit #2, being the deposition of Imogene Dasse is admitted in evidence, the objection to its admission and the motion to strike it out interposed by Respondent being hereby now over ruled. The said deposition is admitted, not as supporting any specific allegation involving deponent and Respondent, but for the purpose of shedding light of a chain of conduct as alleged in Specification #1 of Information of States Exhibit 6, pg 32-statement of Mr. Newkirk)'

'Your Commissioner now finds that, during the trial of the case of the People of the State of Michigan vs Nelson Williams in the Berrien County, Michigan Circuit Court in December, 1947 on a felony charge; Joseph T. Pawlowski, as defense counsel, and Joseph E. Killian, Prosecuting Attorney in the case, had a conversation in the court house, just outside the court room during a recess while said trial was in progress. At said time and place Respondent, Joseph T. Pawlowski, said in substance to said Prosecuting Attorney that he would receive a substantial 'fee' of five hundred dollars if the charges then pending against defendant and being tried were dismissed.'

The main factual issue here was who should be believed--Mr. Killian, the prosecuting attorney, or the respondent Pawlowski? Mr. Killian's testimony was unimpeached. Although many of the witnesses on the other specified charges were persons of doubtful character and credibility because of their implications in crimes, as the Commissioner points out, such challenge cannot be made as to the testimony of Mr. Killian. The evidence shows he has been a practicing attorney in the State of Michigan since 1933; he was in the naval service from 1943 to 1946; he has been an exalted ruler of the Elks Lodge, President of Kiwanis Club, a 32nd degree Mason, Chairman of the District Grievance Committee, a member of the State and American Bar Associations, an active member of the church and for eight years prosecuting attorney.

The essence of Mr. Killian's deposition reads as follows:

'Q. Tell us the entire conversation. A. In connection with Pawlowski's offer to me?

'Q. Yes. A. I have told you the substance of it as nearly as I recall it. I was standing in the rotunda outside the Circuit Court room in the Court-house. As I recall, I was smoking a cigarette during a recess in the trial. Pawlowski approached me and engaged me in conversation and during the course of the conversation stated, in substance to me that if I would see that the charge against whichever defendant was being prosecuted would be dismissed, that charge being a felony, that he would see that I would get a substantial fee of $500. He spoke of it as a fee.'

At another point he says:

'I might say that the reason I remember Mr. Pawlowski's bribe is that it is the only time during the eight years that anybody ever offered me a bribe; so I have quite a vivid memory of it in that connection.'

Mrs. Dassee, who was the mother of the boy involved in the morals charge then being tried in the case in which Killian says the respondent offered him the bribe, testified that Pawlowski came to her house with a woman, the girl friend of the defendant who, in the presence of Pawlowski, offered her $100 if she would drop the morals charges in which her small son was involved. Killian, on cross-examination, stated that Mrs. Dasse had come to him a number of times and reported the offer made in Pawlowski's presence. This evidence was offered to show a motive why, when the attempted bribery of Mrs. Dasse failed, an attempt was made to get the prosecuting attorney for $500 to drop the case.

Mr. Pawlowski, when on the stand, denied that he was present when the offer of $100 was made to Mrs. Dasse to drop the case, but admits that he accompanied the woman to see Mrs. Dasse at her home. He said he remained outside when she went inside to talk to Mrs. Dasse. Such action on the part of Mr. Pawlowski is not probable. An attorney in a case would not ordinarily have another party, a girl friend of the defendant, interview a witness while he sits and waits outside the home. If the visit had an honorable motive in interviewing a party as a witness, why should an attorney make the trip and remain outside? We must believe the testimony of Mr. Killian and Mrs. Dasse. It is consistent and logical. Specification No. 1 has been proved by more credible testimony than that offered by Mr. Pawlowski to the contrary.

Specification No. 2 alleges in brief that Pawlowski, in representing one Verna Walton charged with driving while under the influence of intoxicating liquor, stated he could 'fix' her case for the sum of $400 plus costs and that he was paid that sum. A review of the evidence here results in the testimony of Verna Walton being contradicted by that of respondent Pawlowski. Respondent charged Verna Walton $400 and refunded $350 after she was convicted and sentenced. Pawlowski admitted he returned the sum after some newspaper publicity and when he could not get the arresting officer Pastor to reduce the charge to reckless driving. He stated before the Disciplinary Commission that the higher payment for which refund was made, was merely for results in getting the charge dismissed--not for any trial. We shall have further comments about this evidence later in this opinion. However, at this point we agree with the Commissioner that there was no preponderance of the evidence sufficient to sustain Specification No. 2.

Specification No. 3 reads as follows:

'That, on or about the month of July, 1956, the said attorney. Joseph T. Pawlowski, while representing one Albert Backian, who was then charged with a felony, did state to Mr. Backian an offer to 'fix' and have the charges then pending against Mr. Backian disposed of before the matter was presented to the St. Joseph County Grand Jury for the sum of Four Thousand Dollars ($4000.00); that said Attorney Pawlowski did represent...