Smith, Matter of
| Decision Date | 02 October 1991 |
| Docket Number | No. 28S00-8806-DI-532,28S00-8806-DI-532 |
| Citation | 579 N.E.2d 450 |
| Parties | In the Matter of Brian W. SMITH. |
| Court | Indiana Supreme Court |
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 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 consulted and discussed with the Respondent from 1982 to 1987, pursuing a professional license complaint against William Haseman before the Indiana Board of Realtors on behalf of Orman, and representing Orman in a claim for Black Lung benefits. The Respondent also pursued a claim for Social Security benefits on behalf of Orman's minor daughter, but he waived any attorney fee for this matter.
Although there was conflicting testimony on the issue, the hearing officer concluded that Orman and the Respondent had an agreement for the Respondent to retain the $1,497 already paid to him by Orman as compensation for matters not part of the Social Security claim.
The Commission challenges this conclusion contending that there was no such agreement, and the...
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Geisler, Matter of, 75S00-9105-DI-374
...remains the ultimate factfinder and arbiter of misconduct and sanction. Matter of Levinson (1992), Ind. 604 N.E.2d 599; Matter of Smith (1991), Ind., 579 N.E.2d 450; Matter of Gemmer (1991), Ind., 566 N.E.2d 528. Respondent's challenges to the findings will be addressed within the context o......
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Atanga, Matter of
...by the recommended facts and conclusions. Our review is de novo on the record. In re Levinson (1992), Ind., 604 N.E.2d 599; In re Smith (1991), Ind., 579 N.E.2d 450. Respondent's challenges to the tendered findings of fact will be considered in this process of Upon consideration of the matt......
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Sheaffer, Matter of
...remains the ultimate fact-finder and arbiter of misconduct and sanction. Matter of Geisler (1993), Ind., 614 N.E.2d 939; Matter of Smith (1991), Ind., 579 N.E.2d 450; Matter of Gemmer (1991), Ind., 566 N.E.2d 528. The respondent's challenges will be addressed within the context of this revi......
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Kinney, Matter of
...remains the ultimate fact-finder and final arbiter of misconduct and sanction. In re Geisler, 614 N.E.2d 939 (Ind.1993); In re Smith, 579 N.E.2d 450 (Ind.1991); In re Gemmer, 566 N.E.2d 528 (Ind.1991). The Commission's objections to the findings of the hearing officer will be resolved withi......