“Not Binding”

The Indiana Supreme Court has reinstated an attorney suspended for six months and until further order in 2012, notwithstanding the report of the hearing officer recommending that the petition be denied

The hearing officer appointed in this case made findings of fact and ultimately concluded Petitioner has failed to meet his burden of proof. On review, “[t]he hearing officer’s findings . . . receive emphasis due to the hearing officer’s unique opportunity for direct observation of witnesses, but they are not binding, and this Court reserves the right to reach the ultimate determination.” Matter of Okumu, 796 N.E.2d 1189 (Ind. 2003) (citing Matter of Gutman, 599 N.E.2d 604 (Ind. 1992)).

Upon careful consideration of the record before us, the hearing officer’s report and recommendation on reinstatement, Petitioner’s petition for review and supporting brief, and both parties’ responsive briefs, we conclude that Petitioner has met his burden of proof. The Court therefore GRANTS the petition for reinstatement and REINSTATES Petitioner as a member of the Indiana bar as of the date of this order.

The basis for suspension is set forth in the 2012 opinion

Stipulated Facts: Count 1. In May 2006, a client paid Respondent an advance payment of $1,000, to represent her in a custody dispute. When the client terminated the representation the following month, Respondent offered to return the client’s file but refused to refund any part of the payment. The client eventually obtained a judgment against Respondent for $750 for unearned fees. Respondent satisfied the judgment in December 2011. Respondent failed to respond to the Commission’s request for a response to the client’s grievance until this Court entered a show cause order against him.

Count 2. A different client, who was separated from her husband, retained Respondent in 2009 to assist her regarding a protective order against a third party. After the attorney-client relationship was formed, Respondent began a sexual relationship with her and did not withdraw from representing her. In February 2010, he terminated both his sexual and attorney-client relationship with the client. Respondent failed to cooperate in a timely manner with the Commission’s investigation of the client’s former husband’s grievance against Respondent. Respondent has contacted the Judges and Lawyers Assistance Program (“JLAP”), has scheduled a psychiatric evaluation, and is willing to enter into a JLAP monitoring agreement.

Other facts. The parties cite the following facts in aggravation: (1) The client in Count 2 was vulnerable when he began his sexual relationship with her; (2) Respondent acted selfishly to satisfy his own emotional desires; and (3) Respondent committed multiple offenses.

The parties cite in mitigation the fact that Respondent has not been disciplined previously for misconduct. The Court notes, however, that Respondent has the following history of noncooperation with the Commission…

The Indiana Supreme Court Disciplinary Commission also opposed reinstatement. (Mike Frisch)