Stivers, In re

• Decision Date: 27 February 1973
• Docket Number: No. 372S31,372S31
• Citation: 292 N.E.2d 804,260 Ind. 120
• Parties: In the Matter of Harold D. STIVERS.
• Court: Indiana Supreme Court

Page 804

292 N.E.2d 804

260 Ind. 120

In the Matter of Harold D. STIVERS.

No. 372S31.

Supreme Court of Indiana.

Feb. 27, 1973.

Rehearing Denied April 23, 1973.

Harold D. Stivers, Jeffersonville, for respondent.

John B. Ramming, Executive Sec., Disciplinary Comm., Indianapolis, for Indiana Supreme Court Disciplinary Comm.

Paul Beam, Indianapolis, for Indiana State Bar Assn.

PER CURIAM.

This case comes to us as a result of an action filed by the Disciplinary Commission of this Court against Harold D. Stivers, a practicing attorney of this state. The petition sought the suspension from the practice of law of the attorney pursuant to our Rules. We appointed the Honorable Frederick E. Rakestraw as Hearing Officer to hear the charges accordingly.

The Hearing Officer, after a hearing and notice to the opposing party filed a reort with this Court which was briefed by both sides.

The Respondent filed 'Motion By Respondent For Leave To File Reply Brief', which Motion is now denied.

The Findings of Fact and Recommendations of Hearing Officer are in the words and figures as follows:

The undersigned, heretofore appointed by this Court as Hearing Officer and Judge in the above entitled cause under the provisions of Admission and Discipline Rule No. 23 of this Court, respectfully reports as follows:

The Disciplinary Commission of this Court filed a verified complaint against the respondent on March 21, 1972. The undersigned was appointed as Hearing Officer and Judge on March 21, 1972, and filed his oath and assumed jurisdiction on March 28, 1972. The respondent was served with summons and a copy of the verified complaint on March 22, 1972.

On March 23, 1972, the respondent filed a Motion for Stay of Proceedings in this Court. The basis of the respondent's Motion was that on March 16, 1972, the Supreme Court of the United States had issued an order to stay the execution and enforcement of an order of the Court of Appeals of Kentucky, which order of the Court of Appeals of Kentucky had suspended the respondent from practicing law in the State of Kentucky for one year. The respondent's Motion for Stay was referred by this Court to the undersigned for disposition.

The verified complaint filed against the respondent contained two specifications. The first was that the respondent had been suspended from the practice of law in the Commonwealth of Kentucky, and that as a matter of comity he should be suspended in the State of Indiana. The second was that he did on or about June 5, 1969, knowingly solicit professional employment for himself by the use of the public mails. After receiving appropriate memoranda from counsel, the undersigned entered an order on March 31, 1972, staying any proceedings as to the charge based upon the action of the Commonwealth of Kentucky and directing that the cause proceed as to the allegation of solicitation of professional employment. All subsequent proceedings were on the allegation of soliciting professional employment.

The Supreme Court of the United States has since denied certiorari on the respondent's petition concerning the Kentucky order. However, at this time there would seem to be no reason for further proceedings on the Kentucky suspension.

On April 21, 1972, the respondent filed an answer to the verified complaint. Thereafter the undersigned set this cause for hearing in the jury room of the Clark Circuit Court in Jeffersonville, Indiana, on Friday, May 19, 1972, at 9:30 a.m. The respondent was notified by United States mail, certified, return receipt requested. On that date and at that time, the cause was submitted before the undersigned in Jeffersonville.

Prior to the evidence, the respondent filed a Motion to Quash the Verified Complaint and a Motion to Quash all subpoenas, including a subpoena served upon the respondent himself. Both motions to quash were overruled by the undersigned, and the cause proceeded to hearing. Evidence was presented for the Commission and for the respondent. The Disciplinary Commission was given until June 19, 1972, and the respondent until July 20, 1972, to file briefs. Briefs were submitted to the undersigned by those dates.

From the evidence, the Court now finds the facts to be as follows:

1. That on March 31, 1967, the respondent was admitted to practice law in the State of Indiana by this Court, on the basis of his license to practice law in the State of Kentucky and evidence that he had practiced law at least five of the seven years immediately preceding the date of his application to this Court.

2. That in June, 1969, the respondent maintained a law office at 904 Portland Federal Building, Louisville, Kentucky. That at that time, his letterhead listed a telephone number, without city designation; listed the Louisville address, without designation as to whether it was an office or residence; and listed his Jeffersonville, Indiana, home address, without designating whether it was an office address or home address.

3. That on June 5, 1969, the respondent's secretary mailed a letter to Mrs. Mary L. Vertrees, 343 South Shawnee, Louisville, Kentucky 40212, which letter read as follows:

'Dear Mrs. Vertrees:

According to the May 29, 1969, issue of the local Jeffersonville, Indiana newspaper, you were involved in an automobile accident recently in Clark County, Indiana. The newspaper account indicates that you were not at fault and are therefore entitled to recover any damages you suffered, as a result of the accident, from the party at fault.

In my practice of law, I handle cases of this nature and am admitted to practice in all courts, both in Kentucky and Indiana. I am in a position to represent you and prosecute the case all the way through suit, if necessary. If I can be of service to you in this manner, please call me at the above number and I will arrange an appointment for you to come into my office for a conference.

Sincerely,

Harold D. Stivers

HDS:jf'

4. That other people received letters of a similar nature from the respondent.

5. That said letter was typed, signed, and mailed by the respondent's secretary, Julia Jean Fulkerson.

6. That some time previous to the mailing of the letter, a general draft of this letter had been prepared, and had been examined by the respondent. That the respondent had made some changes in the wording, and had approved the letter.

7. That at least some other similar letters had been mailed from the respondent's office.

8. That in preparing and mailing said letters, Julia Jean Fulkerson was acting within her authority as the secretary for the respondent.

There can be no doubt that the solicitation of business by lawyers is violation of the lawyer's professional responsibility. The matter was very clearly stated by the Supreme Court of Florida as follows:

'The solicitation of business by members of the Bar, all of whom are officers of the Court, has been and is universally condemned. The Canons of Professional Ethics in emphatic terms denounced such conduct and the language used cannot be misunderstood by either the young and inexperienced or the old and experienced members of the Bar. By whatever means employed, solicitation of professional business is unethical and warrants the imposition of appropriate discipline.' The Florida Bar v. Scott, Fla., 197 So.2d 518, 520 (1967).

It will be noted that the above statement was made before the formulation of the Code of Professional Responsibility which has now been officially adopted by this Court. Certainly the act of sending a letter soliciting business would be contrary to Canon 27 of the Canons of Professional Ethics of the American Bar Association as well as contrary to Disciplinary Rule 2--101(A) of the Code of Professional Responsibility.

At various stages, the respondent has questioned the legality of the proceedings. These questions were raised in his Answer, in his Motion to Quash the Verified Compliant, in his Motion to Quash the Subpoenas, and finally in his Brief. The objections of the respondent are primarily objections based upon criminal law. The respondent urges that this is a criminal proceeding, and that he stands before this Court as one accused of a crime. He therefore wishes to take advantage of all of the rights accorded one accused of a crime, and to free himself from any affirmative obligation. In his analysis, the respondent is in error. This is a proceeding sui generis--that is a unique proceeding and the only one of its kind. It is an inquiry berore this Court to determine whether the respondent has properly assumed and carried out his professional responsibilities. These responsibilities in turn are a condition of the privilege of practicing law.

The major arguments which he makes can be summarized as follows:

(a) The respondent maintains that the charges made against him were not sufficiently definite and certain, and that he has been deprived of due process under the United States Constitution. In support of this contention, he cites the case of In re Ruffalo, 1968, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117. The respondent in that case had been disbarred in Ohio and certiorari had been denied by the Supreme Court of the United States. In the Ohio hearing, charges of misconduct had been added to the complaint as a result of respondent's testimony. This opinion was written on an appeal from a later Federal Court disbarment order which was in turn based on the Ohio disbarment. The holding of the Supreme Court was that in Federal Disciplinary proceedings, the respondent is entitled to know in advance the extent of the charges against him.

In its opinion, the Court stated that 'These are adversary proceedings of a quasi-criminal nature'. The term 'quasi-criminal' is an unfortunate designation of the proceedings. The proceedings are rather an inquiry into the lawyer's professional responsibility, and there are few similarities between these proceedings and criminal...