Smith, Matter of, 28S00-8806-DI-532

• Docket Nº: No. 28S00-8806-DI-532
• Citation: 579 N.E.2d 450
• Case Date: October 02, 1991
• Court: Supreme Court of Indiana

Page 450

579 N.E.2d 450 In the Matter of Brian W. SMITH. No. 28S00-8806-DI-532. Supreme Court of Indiana. Oct. 2, 1991.

Laurie Baiden Bumb, Evansville, for respondent.

David F. Hughes, Staff Atty., Indianapolis, for the Indiana Supreme Court Disciplinary Com'n.

DISCIPLINARY ACTION

PER CURIAM.

The Respondent, Brian Smith, has been charged in a complaint for disciplinary action with two counts, committing an illegal act that reflects adversely on his honesty, trustworthiness or fitness as a lawyer in violation of Rule 8.4(b) and failing to act with reasonable diligence and promptness, in violation of Rule 1.3 of the Rules of Professional Conduct for Attorneys at Law. The hearing officer appointed pursuant to Admission and Discipline Rule 23 has heard the case and has tendered his findings of fact and conclusions of law finding misconduct under the second count but finding for the Respondent under the first count. The Disciplinary Commission has petitioned for review challenging the findings and conclusion as to Count I.

This review is a de novo examination of all matters presented. It includes a review not only of the hearing officer's report but also of the entire record; the hearing officer's findings receive emphasis due to the unique opportunity for direct observation of witnesses, but this Court makes the ultimate determination as to misconduct. In re Gemmer (1991), Ind., 566 N.E.2d 528.

The charges involve the Respondent's representation of Paul E. Orman in several legal matters. Under the first count, we find that in October of 1986, Orman retained the Respondent to represent him in a Social Security disability claim. Orman prevailed and recovered benefits of approximately $14,930. The Social Security Administration authorized payment of $1,497 as attorney fees to be paid

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out of the benefits, but on June 4, 1987, before the fee was forwarded to the Respondent, Orman paid to the Respondent $1,497 as attorney's fee for such representation. On July 13, 1987, the Social Security Administration advised Orman that its check for $1,497 was sent to the Respondent.

Prior to and during this same period of time the Respondent represented Orman in several other matters. A civil proceeding for quiet title and action for fraud against William Haseman was handled on a contingency fee basis. However, the Respondent represented Orman in other matters for which he was not compensated. These included some minor matters on which Orman...