Siegel, In re, 49S00-9111-DI-891
| Decision Date | 14 April 1999 |
| Docket Number | No. 49S00-9111-DI-891,49S00-9111-DI-891 |
| Citation | 708 N.E.2d 869 |
| Parties | In the Matter of Michael J. SIEGEL. |
| Court | Indiana Supreme Court |
Attorney Michael J. Siegel filed, on behalf of a client, a voluntary bankruptcy petition that the respondent knew misrepresented the ownership status of the client's personal residence. For this intentional deception of a tribunal, we find that respondent Siegel should be suspended from the practice of law.
The respondent's admission to this state's bar in 1975 confers with us disciplinary jurisdiction over this matter. This case formally commenced with the Disciplinary Commission's filing of a four-count Verified Complaint for Disciplinary Action in 1991. That complaint was subsequently amended three times. The last amended complaint was filed in December 1996. This Court appointed a hearing officer pursuant to Ind.Admission and Discipline Rule 23(11)(b) who, following hearing, has tendered to us her findings of fact and conclusions of law, finding that the respondent violated the Rules of Professional Conduct for Attorneys at Law. The respondent has petitioned this Court for review of those findings and conclusions. Admis.Disc.R. 23(15). This matter is now before this Court for final resolution as the final arbiter of attorney misconduct and sanction. Matter of Manns, 685 N.E.2d 1071 (Ind.1997). We note that the Commission carries the burden of proof to demonstrate attorney misconduct by clear and convincing evidence. Matter of Christoff and Holmes, 690 N.E.2d 1135 (Ind.1997).
The Commission moved to dismiss Counts I and II of the complaint at the commencement of the hearing. Because the hearing officer granted that motion, we will consider only the allegations of misconduct in Counts III and IV of the complaint. Under Count IV, we find that the Commission failed clearly and convincingly to demonstrate that the respondent violated the Rules of Professional Conduct.
We now find that under Count III, a client retained the respondent in 1987 to provide legal advice with regard to a demand from third parties that he return partial distribution from a trust. The client had used a $49,000 partial distribution from the trust to purchase a home in Indianapolis. He was unmarried at the time of purchase, but subsequently married. After his marriage, the client did not grant his wife any title to the real estate.
Third parties demanded that the client return $10,000 to the trust. The client retained the respondent to represent his interests, telling him that his main concern was to retain his home. The respondent recommended that he file a Chapter 7 bankruptcy petition in order to discharge his obligation to repay the trust. On September 25, 1987, the respondent filed a petition for bankruptcy on behalf of his client. In the petition, the respondent sought an exemption for the client's entire $37,000 equity in the residence, pursuant to I.C. 34-2-28-1 et seq. Under the law as it existed at that time, ownership of the home jointly with his wife would have resulted in exemption of the entire equity in the home, and not just the $7,500 equity exemption available for individual ownership. When the petition was filed, the respondent knew that the residence was not titled jointly in the client and his wife's name. On October 6, 1987, some 11 days after filing the petition for bankruptcy, the respondent prepared a quitclaim deed conveying the property from the client to the client and his wife as tenants in the entireties. During the course of the bankruptcy, the client's wife was required to quitclaim her interest in the residence to the bankruptcy trustee. The client lost all equity in his real estate except for the $7,500 statutory exemption.
In his petition for review, the respondent argues that the equitable doctrine of laches should be invoked to require a finding of no misconduct under Count III. In civil law, the doctrine of laches has three elements: inexcusable delay in asserting a right; implied waiver from a knowing acquiescence of existing conditions; and circumstances resulting in prejudice to the adverse party. Simon v. City of Auburn, Ind., Bd. of Zoning Appeals, 519 N.E.2d 205 (Ind.Ct.App.1988), Matter of Geisler, 614 N.E.2d 939, 941 (Ind.1993). Successful invocation of the doctrine in civil cases has included proof that available witnesses did not have a distinct recollection of the details of the case or that they had no access to records which would disclose the same. French v. State, 547 N.E.2d 1084, 1088 (Ind.1989).
The facts underlying invocation of the doctrine in this disciplinary case, the respondent argues, are that some six years passed between the alleged misconduct and the time a grievance was filed with the Commission detailing the charges. An additional four years elapsed between the filing of the grievance and hearing of this case. The respondent contends that, due to the passage of time, he could not remember the circumstances giving rise to Count III and therefore was prejudiced by being unable to provide an adequate defense for himself at hearing of this matter.
No statute of limitations exists for disciplinary cases in this state, and we have never expressly ruled that laches may be invoked as a defense to disciplinary charges. 1 There may be factual situations in which the expiration of time destroys the fundamental fairness of the entire proceeding. Geisler, 614 N.E.2d 939, 940 (other citations omitted). However, mere delay does not preclude disciplinary action--generally, there must be some showing of clear and specific prejudice. Id.
The record in the present case does not contain a sufficient factual basis demonstrating that specific prejudice resulted from a delay between the filing of the grievance against the respondent and final hearing. On November 23, 1993, the respondent...
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Table of Cases
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