Stanton, Matter of, 684
| Decision Date | 19 May 1986 |
| Docket Number | No. 684,684 |
| Citation | 492 N.E.2d 1056 |
| Parties | In the Matter of Nile STANTON. S 253. |
| Court | Indiana Supreme Court |
Nile Stanton, pro se.
William G. Hussman, Jr., Staff Atty., Indianapolis, for the Indiana Supreme Court Disciplinary Com'n.
This cause is before this Court on a Verified Complaint for Disciplinary Action charging the Respondent with eleven counts of misconduct under the Code of Professional Responsibility for Attorneys at Law. The appointed Hearing Officer in this case now tenders his findings and conclusions that the Respondent engaged in misconduct under some, but not all of the counts. Both parties have petitioned for review. Additionally, in his petition, the Respondent makes a request for a personal appearance before this Court to answer inquiries. There being no provision for such an appearance in the rules governing review of disciplinary matters, we view Respondent's request as a petition for oral argument and hereby deny the same.
In the respective petitions for review and responses thereto, each party challenges selected findings and conclusions of fact and law. The review process in disciplinary cases involves this Court's examination not only of the Hearing Officer's findings and conclusions, but also of the entire record tendered in the case. The Hearing Officer's findings receive emphasis due to his unique opportunity for direct observation of the witnesses. In re McDaniel (1984), Ind., 470 N.E.2d 1327; In re Welke (1984), Ind., 459 N.E.2d 725. This, however, makes neither the findings nor the conclusions of fact and law binding upon this Court. In re Long and Phillips (1986), Ind., 486 N.E.2d 1031. Any challenges to the findings and conclusions will be considered within such review process, and any conflicts will be resolved by this Court's ultimate determination.
Upon review of all matters submitted in this case, we find generally that the Respondent, Nile Stanton, was admitted to the Bar of this State in 1973 and is, thus, subject to this Court's professional disciplinary jurisdiction.
Under Count I of the complaint now before this Court, the Respondent is charged with neglecting a legal matter entrusted to him, failing to carry out a contract for professional employment and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, conduct prejudicial to the administration of justice and conduct that adversely reflects on his fitness to practice law, in violation, respectively, of Disciplinary Rules 6-101(A)(3), 7-101(A)(2) and 1-102(A)(4), (5) and (6) of the Code of Professional Responsibility. Upon examination of all matters now before this Court, we find under Count I that, during 1979, Steve Hernandez, an inmate at the Indiana State Prison, met the Respondent and ultimately retained him to file a Petition for Post-Conviction Relief. Initially, the Respondent was paid $1,500 to review the transcript. On March 14, 1980, the Respondent was paid a partial fee of $3,000 to proceed with the petition. He did not file the petition, did not make an accounting as to how much, if any, of the fee was actually earned and did not refund any of the fee.
In his petition for review, Respondent argues that his representation of Mr. Hernandez did not constitute professional misconduct. Respondent asserts that the $3,000 fee was less than one-half of the $6,500 fee originally requested and that this reduced fee was accepted only on the condition that the Respondent would proceed at his own pace. Respondent further contends that Mr. Hernandez, himself, requested the delay in the filing of the petition.
Respondent's arguments are unsupported. Respondent charged and received $1,500 dollars for the purpose of reviewing the record and then further received $3,000 to proceed with the case. Respondent did not proceed slowly, there is no evidence that he proceeded at all. In August 1981, Hernandez wrote Respondent expressing his frustrations with the delays and lack of communication, stating that he had decided against a hearing, and requesting a refund of the $3,000. With the exception of some messages and correspondence, Respondent has done nothing in this case.
Under the above noted findings, we now conclude that the Respondent has engaged in professional misconduct as charged under Count I of the complaint.
Under Count II, Respondent is again charged with violation of Disciplinary Rules 6-101(A)(3), 7-101(A)(2) and 1-102(A)(4), (5) and (6) of the Code of Professional Responsibility. Upon examination of all matters presented concerning this question, this Court now finds that on December 18, 1979, the Respondent entered his appearance on behalf of David S. Banton in the Tippecanoe Circuit Court where Banton was charged. The Respondent was paid $7,000 for representing Banton at the trial level. Banton was tried during June and July of 1981, but due to medical and other reasons, sentencing did not take place until December 22, 1982. At said hearing, the Respondent stated that he would file the motion to correct error. There were further discussions that Banton, because of indigency, would seek pauper counsel for appeal and would request a transcript at public expense. Decision on the issue of Banton's indigency was deferred because an affidavit of indigency had not been tendered or filed and there was some question as to Banton's possibility of inheritance. The Court suggested that the Respondent "look into" the latter possibility. The Respondent also advised the Court that he would like to have the transcript available for the preparation of the Motion to Correct Error and, should it not be prepared in time, that he would file an application to file a belated motion to correct error.
Thereafter, the Respondent filed two praecipies for the transcript, one on December 29, 1982 and one on January 5, 1983. Upon Respondent's later inquiry, the Court Reporter, on March 22, 1983, responded that The Respondent filed nothing more on behalf of Banton, although in April, 1983, he advised Banton to file a petition to proceed as a pauper. Banton, proceeding pro se, was found to be indigent and a transcript was ordered for him at public expense. Later, upon Banton's "Motion for Order Compelling Trial Counsel to Produce and Deliver all Documents" and the Court's order to appear and show cause, the Respondent forwarded Banton's file to him on February 17, 1984. Banton proceeded pro se and filed his belated motion to correct error.
The Respondent contends that any delay in his filing of the motion to correct error was caused by the court reporter who did not file the transcript until July 25, 1984. We are not persuaded. The findings show that the Respondent was aware of and anticipated the inability of his client to pay for a transcript. The Respondent insisted on one, yet, at the same time, abandoned Banton to his own devices to seek indigency status. Also, Respondent's argument proceeds from premise that a transcript was necessary for the filing of the Motion to correct error. The time constrains and procedural sequences of Trial Rule 59 do not anticipate the preparation of a transcript. The record gives us little to convince us that, in this case, where the Respondent acted as trial counsel, the transcript was at all necessary for the preparation of a motion to correct error.
These considerations and the findings of fact convince us that the neglect exhibited in the case is not at all justified. Accordingly, we conclude that the Respondent did neglect a legal matter entrusted to him, failed to carry out a contract of employment and engaged in conduct that is prejudicial to the administration of justice and conduct that adversely reflects on his fitness to practice law, all in violation of Disciplinary Rule 6-101(A)(3), 7-101(A)(2) and 1-102(A)(5) and (6) of the Code.
Under Count III, the Respondent is charged with charging a clearly excessive fee, with failing to refund an unearned fee, neglecting a legal matter, failing to carry out a contract of employment, engaging in conduct involving fraud, deceit or 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 3-106, 2-110, 6-101(A)(3), 7-101(A)(2) and 1-102(A)(4), (5) and (6). These charges arise out of an incident during which the Respondent, in anticipation of being hired to file a petition for post-conviction relief on behalf of an inmate, had some meetings and incurred expenses relating to the case. He was not hired because an agreement between him and the inmate's brother could not be reached as to attorney's fees. Though the Respondent declined to accept employment for the proposed amount, he retained $500 which the brother had tendered as an expression of "good faith". The Hearing Officer found that the Respondent was enticed into certain actions and did perform services. The Hearing Officer concluded that the Respondent did not, by clear and convincing evidence, violate the Disciplinary Rules as charged. We agree that the evidence is insufficient to prove misconduct under this count.
The charges under Count IV arise out of Respondent's withdrawal from a post-conviction matter prior to a final determination on the petition for post-conviction relief for which the Respondent was paid in advance. The Hearing Officer concluded that the withdrawal, under the facts, was permissible and that there has been no clear and convincing proof of the violations charged. We agree with his conclusion and find that the evidence is not sufficient to prove misconduct.
In Count V, Respondent is charged with revealing confidences and secrets of his client and using confidences and secrets of his...
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U.S. v. Robinson
...attorney was disbarred by the Indiana Supreme Court for reasons unrelated to his alleged involvement in cocaine. See Matter of Stanton, 492 N.E.2d 1056 (1986); clarified in part on prehearing, 504 N.E.2d 1 (Ind.1987). The trial was recessed. When the trial was resumed on Thursday, May 22, t......
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