The Straight Face Test
The Indiana Supreme Court imposed a suspension of at least three years as bar discipline for a counterfeiting conviction
Respondent endorsed a check payable to a third party, siphoned off $10,000 for himself, and provided the payee with a cashier’s check for the remainder. Respondent did this without the payee’s knowledge or permission. As a result, Respondent was charged with, and eventually pled guilty to, counterfeiting. Respondent was ordered to pay $15,000 in restitution to the victim, although that amount later was reduced to $10,000. Despite the ability and professed intent to make restitution, to date Respondent has paid only about $200…
The hearing officer found the following six facts in aggravation, of which Respondent challenges the first three: (1) the victim was vulnerable; (2) Respondent has refused to acknowledge the wrongful nature of his misconduct; (3) Respondent has been indifferent to making restitution; (4) Respondent’s misconduct was illegal in nature; (5) Respondent’s misconduct was due to a dishonest or selfish motive; and (6) Respondent has substantial experience in the practice of law.
We find ample support for the hearing officer’s comprehensive and well-reasoned findings. In his own testimony, Respondent described the victim as a “broken man” at the time Respondent met him, which was shortly before Respondent committed the acts underlying his criminal conviction. (Tr. at 122). Although Respondent pled guilty, he has spent many of the intervening years denying that he committed counterfeiting and filing multiple collateral attacks, including an “Amended Motion for Relief [from] Judgment” filed in the criminal court shortly before final hearing in this matter in which Respondent alleged that his guilty plea and restitution order resulted from fraud and misconduct by the victim, the prosecutor, the judge, and the Indiana Securities Division. (Comm’n Ex. 47). And finally, the numerous promises made by Respondent over the years to pay the restitution, his failure to honor those promises despite an ability to pay, and the myriad efforts engaged in by Respondent to avoid his restitution obligation, are well-chronicled in Respondent’s own pleadings and testimony, the hearing officer’s report, and orders issued by the criminal court.
The hearing officer found two mitigating factors (Respondent’s lack of prior discipline and his cooperation with disciplinary proceedings), but Respondent argues the hearing officer should have found two more. Again though, we find ample support for the hearing officer’s findings and analysis. For the reasons described above, Respondent’s argument that he engaged in a “timely good faith effort to make restitution or to rectify [the] consequences of [his] misconduct” does not pass the straight face test. And under the circumstances of this case, the delay between Respondent’s misconduct and the resolution of these disciplinary proceedings is not mitigating in nature. In the criminal case, Respondent was charged with five class C felonies in May 2008, he pled guilty to a single count of counterfeiting in October 2012 after several delays and continuances largely attributable to Respondent, and judgment of conviction and sentence were entered in February 2013. The Commission initiated these disciplinary proceedings just one month later. In May 2014, just two weeks prior to the scheduled final hearing in this matter, Respondent requested that his disciplinary case be stayed pending final disposition of proceedings on direct review of Respondent’s restitution order. We granted Respondent’s request in June 2014, and we lifted the stay in November 2016, about two weeks after the Court of Appeals’ memorandum decision in Respondent’s criminal direct appeal was certified as final. An evidentiary hearing in this matter was held three months later, in February 2017. In sum, while there have been several delays in both Respondent’s criminal and disciplinary proceedings, these delays are attributable almost entirely to Respondent.
He must petition for reinstatement.
The Indiana Lawyer reported on the criminal case. (Mike Frisch)