Public Law No. 154-1990 (H.E.A. 1044), Matter of

• Decision Date: 02 November 1990
• Docket Number: No. 49S00-9006-OR-388,49S00-9006-OR-388
• Citation: 561 N.E.2d 791
• Parties: In re The Matter of PUBLIC LAW NO. 154-1990 (H.E.A. 1044).
• Court: Indiana Supreme Court

Page 791

561 N.E.2d 791

In re The Matter of PUBLIC LAW NO. 154-1990 (H.E.A. 1044).

No. 49S00-9006-OR-388.

Supreme Court of Indiana.

Nov. 2, 1990.

Gary P. Price, Lewis Kappes Fuller & Eads, Indianapolis, for petitioner Ted B. Lewis.

Edward O. DeLaney, Barnes & Thornburg, Indianapolis, for intervening petitioners Legal Services Organization of Indiana, Inc., Legal Services of Maumee Valley, Inc., Legal Services Program of Northern Indiana, Inc., and Legal Services Program of Northwest Indiana, Inc.

William F. Harvey, Arthur H. Northrup, Indianapolis, Theodore L. Sendak, Crown Point, Robert S. Koor, Muncie, for respondents.

DICKSON, Justice.

This case requires us to determine whether a particular legislative enactment is valid notwithstanding a provision in the Constitution of Indiana that assigns to the judicial branch a subject matter central to the enactment.

The 106th General Assembly of the State of Indiana enacted Sections 15 through 24 of Public Law No. 154-1990 (House Enrolled Act No. 1044), Ind.Code Secs. 33-20-1-1 through 33-20-9-2, entitled "Interest-Bearing Attorney Trust Accounts" (hereinafter referred to as the Attorney Trust Account Act). The Act establishes a system by which interest on certain client funds held in attorneys' trust accounts may be directed to a "Trust Account Board" to create a trust account fund to be used for the expressed purpose of enhancing the delivery of civil legal assistance to Indiana clients eligible for legal aid, and to be used for other specified purposes.

Petitioner Ted B. Lewis, on behalf of himself and other attorneys, brought this action for declaratory relief as an original action in this Court. He seeks a writ declaring, among other things, that an included "immunity clause," Ind.Code Sec. 33-20-2-1, shielding attorneys from disciplinary action for participation in the statutory attorney trust account program, does not contravene Article 3, Section 1, of the Constitution of Indiana.

In view of the unique circumstances which give rise to this case, this Court has recognized an unconventional procedural process for its resolution. By separate order entered June 20, 1990, we ordered the establishment of the Indiana Attorney Trust Account Fund held in abeyance, and invited any interested attorney to file a response in opposition to the petition for declaratory relief. Deadlines for such submissions were established and have now expired, with several responses having been submitted. As to the question of constitutionality of the "immunity clause," the petitioners and several responding attorneys have filed memoranda in support of their respective positions. One such responding attorney has filed an alternative motion seeking, in part, a judgment on the pleadings. Because the constitutionality of the "immunity clause" is solely a question of law, the presentation of factual evidence is not necessary. We therefore deem this issue closed and ripe for adjudication.

We begin our review by noting that every statute stands before this Court cloaked with a presumption of constitutionality. B & M Coal Corp. v. United Mine Workers (1986), Ind., 501 N.E.2d 401; American National Bank and Trust Co. v. Indiana Dep't. of Highways (1982), Ind., 439 N.E.2d 1129. It is our duty to bring it into harmony with constitutional requirements, if the language permits. If it is capable of any constitutional interpretation, it must be upheld. Progressive Improvement Ass'n v. Catch All Corp. (1970), 254 Ind. 121, 258 N.E.2d 403. As we observed in Johnson v. St. Vincent Hospital, Inc. (1980), 273 Ind. 374, 382, 404 N.E.2d 585, 591:

A statute is not unconstitutional simply because the court might consider it born of unwise, undesirable, or ineffectual policies.

The petitioner designates Ind.Code Sec. 33-20-2-1 as the "immunity clause" of the Attorney Trust Account Act. The clause provides:

An attorney is not subject to disciplinary action as a result of any action taken in accordance with this article.

A related provision, Ind.Code Sec. 33-20-5-8, states:

An attorney:

(1) does not breach a fiduciary duty;

(2) is not liable in damages; and

(3) is not subject to disciplinary action; because of a deposit of money in an interest-bearing attorney trust account if the attorney acted in accordance with a good faith judgment that the money constituted qualified funds. [Emphasis added.]

There are two provisions of the Constitution of Indiana pertinent to our discussion. Article 3, Section 1 provides:

The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial; and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided. [Emphasis added.]

Article 7, Section 4, provides in part:

The Supreme Court shall have no original jurisdiction except in admission to the practice of law; discipline or disbarment of those admitted; the unauthorized practice of law; discipline, removal and retirement of justices and judges; supervision of the exercise of jurisdiction by the other courts of the State; and issuance of writs necessary or appropriate in aid of its jurisdiction. [Emphasis added.]

The scope of the judicial department's functions under Section 4 was enunciated in Matter of Mann (1979), 270 Ind. 358, 361, 385 N.E.2d 1139, 1141:

It is the exclusive province of this Court to regulate professional legal activity.

In Mann we held that a legislative grant of immunity under Ind.Code Sec. 35-6-3-1 (immunity from incriminating testimony given pursuant to court order) does not extend to attorney disciplinary proceedings because "to hold otherwise would suggest an unconstitutional invasion into this Court's constitutional authority." Id.

The petitioner contends that the statute and its included attorney discipline immunity provisions constitute matters merely "incident of the practice of law," or matters of procedure legislatively appended to the substance of the practice of law. The intervening petitioners argue that these provisions do not involve the taking of client funds but apply to a new form of property created by the legislature and thus are a permissible regulation of the commercial aspect of the practice of law. We do not agree. By declaring an absolute immunity from the disciplinary rules and procedures adopted by the judicial department, the Attorney Trust Account Act clearly oversteps the boundary set by Article 3, Section 1, of the Constitution of Indiana.

That this boundary may have concerned the drafters of the Act appears likely from the inclusion of Ind.Code Sec. 33-20-2-2:

This article does not apply to an activity that is:

(1) the practice of law; and

(2) regulated by the judicial department of state government.

Regardless of the reasons for its inclusion, the effect of this provision would be to declare that the duties and obligations with respect to client funds held by an attorney are matters outside the practice of law and not subject to regulation by this Court. This result is contrary to both existing standards and past enforcement.

The obligations of an attorney for the safekeeping of property of others are prescribed in Rule 1.15 of the Indiana Rules of Professional Conduct adopted by this Court. The commingling of clients' funds by lawyers has been the source of the greatest number of disciplinary proceedings brought in this state. Matter of Indiana State Bar (1990), Ind., 550 N.E.2d 311, 312. The improper use of entrusted client funds to generate interest without remittance to the client has even been specifically addressed. This Court imposed sanctions upon an attorney who retained interest income earned from client funds in Matter of Kesler (1979), 272 Ind. 161, 397 N.E.2d 574, cert. denied (1980), 449 U.S. 829, 101 S.Ct. 96, 66 L.Ed.2d 34.

The immunity provisions of the Attorney Trust Account Act clearly and literally attempt to exercise by limitation the attorney disciplinary function of the judicial department. Notwithstanding the presumption of constitutionality and our duty to harmonize the Attorney Trust Account Act with constitutional requirements if possible, we are unable to view the attorney immunity provisions of the act as compatible with Article 3, Section 1, of the Constitution of Indiana.

The remaining question is whether this constitutional infirmity applies only to the immunity provisions or to the entire Act. The test for severability expressed in Dorchy v. Kansas (1924), 264 U.S. 286, 289-90, 44 S.Ct. 323, 324, 68 L.Ed. 686, 689-90, was quoted with approval in In re City of Mishawaka (1972), 259 Ind. 530, 533, 289 N.E.2d 510, 512:

A statute bad in part is not necessarily void in its entirety. Provisions within the legislative power may stand if separable from the bad.... But a provision, inherently unobjectionable, cannot be deemed separable unless it appears both that, standing alone, legal effect can be given to it and that the legislature intended the provisions to stand, in case others included in the act and held bad should fall.

In determining legislative intent, we consider whether or not the legislature would have passed the statute had it been presented without the invalid features. Id.

Apart from the attorney discipline immunity provisions, the Attorney Trust Account Act establishes a fund to receive proceeds from interest generated from attorney trust accounts and a board to establish procedures and oversee the utilization of fund. It is clear that, without the Act's immunity from discipline, the present rules and precedent of this Court prohibit Indiana attorneys from participation in a program whereby interest earned on their clients' funds is redirected for other purposes without the clients' consent. Thus, without the immunity clause, the remaining provisions of the Act can have no practical legal effect. The...