Wells, Matter of

• Citation: 572 N.E.2d 1290
• Decision Date: 13 June 1991
• Docket Number: No. 73S00-8904-DI-312,73S00-8904-DI-312
• Parties: In the Matter of Byron C. WELLS.
• Court: Supreme Court of Indiana

Page 1290

572 N.E.2d 1290

In the Matter of Byron C. WELLS.

No. 73S00-8904-DI-312.

Supreme Court of Indiana.

June 13, 1991.

James H. Voyles, Indianapolis, for respondent.

David F. Hurley, Indianapolis, for Indiana Supreme Court Disciplinary Com'n.

PER CURIAM.

This case was initiated by the Disciplinary Commission of this Court pursuant to Admission and Discipline Rule 23, Section 12. In accordance with the procedure for disciplinary actions, a Hearing Officer was appointed, conducted a hearing, and has tendered findings of fact, conclusions, and recommendation to this Court. Although the Disciplinary Commission seeks review of the recommended sanction, neither the Commission nor the Respondent have challenged the findings of fact and conclusions. On December 12, 1990, accepting the Hearing Officer's tendered findings of misconduct, this Court suspended the Respondent from the practice of law pending further order.

The Respondent, Byron C. Wells, is charged with committing criminal acts that reflect adversely on his honesty, trustworthiness or fitness to practice law in violation of Rule 8.4(b) of the Rules of Professional Conduct for Attorneys at Law and engaging in conduct that involves moral turpitude, conduct prejudicial to the administration of justice, and conduct that adversely reflects on his fitness to practice law in violation of Rule 8.4(d) of the Rules of Professional Conduct for Attorneys at Law and Disciplinary Rule 1-102(A)(3), (5), and (6) of the Code of Professional Responsibility for Attorneys at Law. The charges of misconduct emanate from the Respondent's alleged nonconsensual touching of and interaction with young males.

Adopting the Hearing Officer's report, we now find that the Respondent practiced law in Shelbyville, Indiana. On a Saturday evening in November of 1986, Respondent invited B.J. and T.G., 17 year old male high school students, to his office to give them a tour of the office and discuss with them their interest in cases which the Respondent handled in his professional capacity. These young men were not his clients. During his conversations with these individuals, Respondent turned the subject to the sexual experiences of young males and, without solicitation, displayed a videotape depicting men and women engaged in various acts of oral sex and sexual intercourse.

In May of 1987, O.V. went to Respondent's office to solicit representation for another individual charged with motor vehicle offenses. While discussing the matter, Respondent placed the back of his hand against O.V.'s pants touching his penis. Eventually, the Respondent turned his hand around placing it between O.V.'s legs touching his genitals and moved his hand up and down two or three times.

On an evening in January of 1987, B.J., the above noted individual who was eighteen years old at the time, went to Respondent's office to secure representation concerning an auto accident. In discussion of the incident, Respondent discovered that he could not represent B.J. by reason of the Respondent's representation of another party, but indicated a willingness to discuss the possibility of settlement with his client's carrier. Respondent then offered B.J. a tour of the second floor area of his office which had just been completed. During the tour, while the two were standing in an upstairs hallway, Respondent on four to six occasions touched B.J.'s penis through his clothing.

In January of 1987, K.E., age eighteen, and his father met with Respondent in his office regarding K.E.'s arrest for Possession of Marijuana, Speeding, and Minor in Possession of Alcohol. On March 30, 1987, K.E. and Respondent were discussing a proposed plea agreement in the conference room at the Shelby County Court. During the discussion Respondent stood in close proximity to K.E. and, while holding the agreement in his left hand, touched K.E.'s genitals twice with his (Respondent's) right hand.

In May of 1987, T.W., age 16, met with Respondent in Respondent's law office regarding representation concerning an Operating While Intoxicated charge. Following this discussion, Respondent escorted T.W. on a tour of the office, including the second floor. While standing in an upstairs doorway, Respondent nudged T.W. at least three times in the genitals with a closed hand. Respondent continued to represent T.W. to conclusion of the case.

The touching of these young males as described above occurred without their consent. These acts were not inadvertent and were the product of intentional conduct on the part of the Respondent. At no time did Respondent exert any force upon the victims nor did he engage in any conversation with them in an effort to persuade them to participate with him in any further conduct.

On November 29, 1987, by reason of the above noted conduct and similar conduct with another individual, the Respondent was charged with five counts of Battery, as Class B Misdemeanors, in violation of IC 35-42-2-1. On June 22, 1988, the Special Prosecutor appointed in the case dismissed four counts and filed an agreement to withhold prosecution with respect to the remaining count. In this agreement, Respondent admitted the commission of Battery on B.J. as alleged. On September 6, 1988, the remaining charge was dismissed pursuant to the agreement. During the period covered by the agreement, the Respondent underwent treatment for a depressive...