Roberts, Matter of, 881S207

Citation442 N.E.2d 986
Decision Date18 January 1983
Docket NumberNo. 881S207,881S207
PartiesIn the Matter of James T. ROBERTS.
CourtSupreme Court of Indiana

William B. Keaton, Keaton & Keaton, P.C., Rushville, for respondent.

Martha S. Hoover, Staff Atty., Indianapolis, for Ind. Supreme Court Disciplinary Com'n.

PER CURIAM.

This disciplinary matter has been brought by the Indiana Supreme Court Disciplinary Commission by way of a Verified Complaint charging the Respondent with failing to report improper conduct of a venireman. The Hearing Officer appointed pursuant to Admission and Discipline Rule 23 has heard this matter and has submitted his findings and conclusions of law. The Respondent has petitioned for review and has requested oral argument. The Commission has filed a response.

This Court has reviewed all matters submitted in this case and now finds that Respondent's request for oral argument should be denied. The Court finds further that the Respondent, James T. Roberts, was admitted to the Indiana Bar in May, 1968. The Respondent was a shareholder in the law firm of Roberts and Szakaly in Nashville, Brown County, Indiana. As such, he was employed as local counsel for plaintiffs in the case of Mott v. Garrity in the Brown Circuit Court. Thomas Ely was a member of the venire summoned for the jury of the trial in said cause. On August 26, 1980, Thomas Ely signed a jury questionnaire, upon penalty of perjury, and gave the name of his wife's employer as Key Tool Company. His wife, Carol Ely, was in fact employed as a secretary by Respondent's law firm.

At the time of the trial of the cause the Respondent knew of the existence of the questionnaire. He conducted voir dire of the jurors but did not question Thomas Ely about his wife's employment. The court inquired of the panel of jurors whether they had any corrections or changes to make in their questionnaires. Thomas Ely made no response. During voir dire, counsel for the defendant also questioned Thomas Ely specifically about his relationship with the Respondent, but Ely again failed to disclose the connection.

Thomas Ely sat as a juror in the cause. After the jury had retired for deliberations, the Respondent disclosed to opposing counsel the relationship between Thomas and Carol Ely and that Mrs. Ely was his employee.

Thereafter, the trial judge, the Honorable Samual Rosen, approached the Respondent in an effort to resolve this matter of non-disclosure in his court. The Respondent informed the judge that he would make a complaint to the Indiana Commission on Judicial Qualifications charging the judge with improper conduct. The Respondent had, in fact, already filed such complaint. The Commission dismissed Respondent's complaint on March 13, 1981, as being frivolous and unfounded.

In light of the foregoing findings and considerations, this Court concludes that the Respondent knew of, but failed to reveal promptly to the court the improper conduct of a juror. Thereby, the Respondent violated Disciplinary Rule 7-108(G). Furthermore, the Respondent engaged in conduct involving dishonesty and misrepresentation, conduct that is prejudicial to the administration of justice and conduct that adversely reflects on his fitness to practice law, in violation of Disciplinary Rules 1-102(A)(4), (5) and (6) of the Code of Professional Responsibility for Attorneys at Law.

The Hearing Officer further found misconduct by reason of Respondent's filing of a frivolous grievance against the trial judge, even though such misconduct was not specifically or generally charged under the verified complaint filed in this cause. In his petition for review the Respondent now contends that this finding of misconduct is erroneous in that there was no allegation in the complaint which would support such finding. The Disciplinary Commission counters that this issue was tried by the express or implied consent of the parties and that under Trial Rule 15(B) the complaint should be so amended.

Respondent's assertion of error presents a question which this Court has not previously addressed. That is, in a disciplinary proceeding can the complaint be impliedly amended to include additional allegations of misconduct? The answer to this question rests in an analysis of the nature and character of a disciplinary proceeding.

At the onset it must be understood that this type of litigation is neither criminal nor civil.

Preliminarily, it would be well to note that disbarment and suspension proceedings are neither civil nor criminal in nature but are special proceedings, sui generis, and result from the inherent power of courts over their officers. Such proceedings are not lawsuits between parties litigant but rather are in the nature of an inquest or inquiry as to the conduct of the respondent. They are not for the purpose of punishment, but rather seek to determine the fitness of an officer of the court to continue in that capacity and to protect the courts and the public from the official ministration of persons unfit to practice. Ex parte Wall, 107 U.S. 265, 2 S.Ct. 569, 27 L.Ed. 552 (1882). Thus the real question at issue in a disbarment proceeding is the public interest and an attorney's right to continue to practice a profession imbued with public trust. In re Fisher, 179 F.2d 361 (7th Cir.1950), cert. denied sub nom. Kerner, et al. v. Fisher, 340 U.S. 825, 71 S.Ct. 59, 95 L.Ed. 606 (1950). In Re Echeles (7th Cir.1970), 430 F.2d 347 at 349.

Although this Court has not specifically denominated the attorney disciplinary process as "sui generis ", previous decisions have recognized the unique character of such proceedings and resolved issues of constitutional application within the framework of this understanding. See, In re Crumpacker (1978), 269 Ind. 630, 383 N.E.2d 36, cert. denied 444 U.S. 979, 100 S.Ct. 481, 62 L.Ed.2d 406; In re Wireman (1977), Ind., 367 N.E.2d 1368, cert. denied 436 U.S. 904, 98 S.Ct. 2234, 56 L.Ed.2d 402; In re Murray (1977), 266 Ind. 221, 362 N.E.2d 128, appeal dismissed, 434 U.S. 1029, 98 S.Ct. 758, 54 L.Ed.2d 777. Additionally, Admission and Discipline Rule 23, Section 14(a) specifically provides that "(t)he rules of pleading and practice in civil cases shall not apply...." in disciplinary proceedings.

Other jurisdictions have followed the same analysis of the nature of disciplinary proceedings. See gen. Ohio State Bar v. Illman (1976), 45 Ohio...

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  • Berk, In re, 90-542
    • United States
    • United States State Supreme Court of Vermont
    • 6 Diciembre 1991
    ...117 (1968). Thus, findings concerning uncharged behavior cannot be used to support a conclusion of misconduct. See In re Roberts, 442 N.E.2d 986, 988 (Ind.1983) (attorney charged with misconduct "is entitled to know in advance the extent of the charges against him"). When determining sancti......
  • Moore, Matter of, 1281S343
    • United States
    • Supreme Court of Indiana
    • 26 Septiembre 1983
    ...fitness of an officer of the court to continue in that capacity and to protect the courts and public from unfit persons. In re Roberts (1983), Ind. 442 N.E.2d 986. The effective administration of justice, the fair resolution of disputes, and the preservation of individual liberties through ......
  • Briggs, Matter of, 1078S235
    • United States
    • Supreme Court of Indiana
    • 13 Enero 1987
    ...not a criminal proceeding and the application of standards generally afforded a criminal defendant is not appropriate here. In re Roberts (1983), Ind., 442 N.E.2d 986. Similarly, the Respondent has failed to cite nor could we find any authority which could support his contention that Articl......
  • Hite v. Haase, 43A03-9810-CV-431.
    • United States
    • Court of Appeals of Indiana
    • 16 Mayo 2000
    ...were published prior to her submission of her appellant's brief. See Smith v. Johnston, 711 N.E.2d 1259 (Ind.1999) and In re Roberts, 442 N.E.2d 986 (Ind.1983). 10. She asserts with no citation that a "dispute arose between Plaintiff and Defendant Cross' counsel, regarding the release of th......
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