Zinman, Matter of, 981S256

• Decision Date: 13 July 1983
• Docket Number: No. 981S256,981S256
• Citation: 450 N.E.2d 1000
• Parties: In the Matter of Ira B. ZINMAN.
• Court: Indiana Supreme Court

Page 1000

450 N.E.2d 1000

In the Matter of Ira B. ZINMAN.

No. 981S256.

Supreme Court of Indiana.

July 13, 1983.

Claudia Carroll, Bloomington, for respondent.

Thomas J. Opsut, Staff Atty., Indianapolis, for Indiana Supreme Court Disciplinary Com'n.

PER CURIAM.

This matter is before this Court on a Verified Complaint for Disciplinary Action filed by the Indiana Supreme Court Disciplinary Commission charging the Respondent with engaging in conduct involving a conflict of interest. The Hearing Officer appointed in this cause has completed his hearing and has submitted Special Findings of Facts and Conclusions of Law. The Respondent has petitioned for review and both parties have briefed their positions.

In his petition for review, the Respondent raises two preliminary objections which must be addressed at this point. First, Respondent asserts that the Hearing Officer lost jurisdiction by not filing his findings of fact and conclusions of law within thirty (30) days as required under Admission and Discipline Rule 23, Section 14(f). Second, Respondent asserts that the Hearing Officer, by accepting verbatim the tendered findings of the Disciplinary Commission, did not enter his own findings of fact as required.

Respondent's first contention is unacceptable in two particulars. This Court has never held that the expiration of the specified time periods under Admission and Discipline Rule 23 is jurisdictional. On the contrary, we have noted that expiration of such time periods, without a further showing of impairment to the fundamental fairness of the proceeding, does not establish a constitutional infirmity. In re Wireman, (1977) 270 Ind. 344, 367 N.E.2d 1368, cert. denied 436 U.S. 904, 98 S.Ct. 2234, 56 L.Ed.2d 402. Additionally, the record in this case demonstrates that at the conclusion of the testimonial portion of the hearing, the Hearing Officer granted the parties twenty days in which to tender proposed findings and memoranda. The Hearing Officer's findings were filed with this Court twenty-four (24) days after these matters were tendered by the parties. Accordingly, we now find that the Hearing Officer complied with Admission and Discipline Rule 23, Section 14(f).

This Court further finds Respondent's objection to the Hearing Officer's adoption of the tendered findings of the Disciplinary Commission to be similarly without merit. Both parties had an opportunity to present evidence and argue the merits of their respective positions. It is not error to be persuaded by one party. When the Hearing Officer signed the tendered findings, they became his findings which are now subject to the review of this Court.

Turning to the findings of fact, Respondent asserts in his petition for review that several of the findings of the Hearing Officer are erroneous. These allegations of error are resolved through our ultimate determination of the facts. Our findings are arrived at through an examination of all matters before the Courts including the transcript; the findings of the Hearing officers are considered, but are not controlling. In re Callahan, (1982) Ind., 442 N.E.2d 1092; In re Crumpacker, (1978) 269 Ind. 630, 383 N.E.2d 36; In re Wireman, (1977) Supra. Respondent's assertion of error has been considered in this review process.

Upon examination and review of all matters which have been filed under this cause, this Court now finds that the Respondent, Ira B. Zinman, is a member of the Bar of the State of Indiana and presently maintains an office for the practice of law in Bloomington, Indiana.

In 1979, the Respondent represented Heather L. McCain in her dissolution of marriage action against her husband, Chris W. Moon, in the Monroe Superior Court. A decree of dissolution, including a custody provision for the parties' minor child, was entered on May 17, 1979. Heather McCain was awarded custody, with Chris Moon having certain visitation rights and support obligations.

Thereafter, during 1979 and 1980, McCain called the Respondent on several occasions to complain concerning late support payments and, on one particular occasion, concerning threats to stop support. In response thereto, the Respondent's associate wrote a letter advising McCain that they would contact Moon if she would retain them and forward a retainer of $30.00. McCain did not do so. McCain did call with a question concerning visitation and was charged $6.50 for said consultation. In another instance, the Respondent provided information to McCain concerning a financial matter he had previously handled for her. During 1980 the Respondent and his associate advised McCain to seek legal assistance from the Legal Aid Society because of McCain's financial inability to pay for private counsel.

In May, 1981, the Respondent accepted employment on behalf of Chris Moon and Moon's mother, Marcelle Allen, to seek modification of the May 17, 1979, dissolution decree in respect to the grandmother's visitation. On May 18, 1981, the Respondent wrote a letter on behalf of Moon and his mother to McCain seeking her agreement to a modification of the visitation provisions of the dissolution decree and advising her that he would be filing a petition to modify if he did not hear from her within ten days. On June 3, 1981, the Respondent filed a petition for modification on behalf of both Moon and his mother. On June 11, 1981, Respondent filed a petition for visitation by a grandparent, and the earlier petition was subsequently dismissed. On July 28, 1981, McCain's attorney filed a motion seeking the Respondent's disqualification; and, on July 29, 1981, the Respondent filed a petition to withdraw, which was granted.

Anticipating findings along the lines set forth above, Respondent contends that there is no violation of the Code of Professional Responsibility as charged under the Verified Complaint filed in this cause, that being Disciplinary Rules 5-105(A) and 1-102(A)(5) and (6) which read, respectively, as follows "A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(C)."

"A lawyer shall not:

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(5)...