987 N.E.2d 1080
Ind.2013Background
- Respondent Arthur J. Usher IV engaged in a pattern of dishonesty culminating in a published email and clip targeting Jane Doe, a law student who had been his colleague.
- Usher formed a personal relationship with Jane Doe, which deteriorated after her refusals, leading him to attempt to humiliate her and hinder her employment prospects.
- In 2008 he drafted and disseminated a fictitious email thread and a clip involving Jane Doe to harm her professionally, using paralegal KB to reach multiple recipients, including Bose and other firms.
- He later claimed the email was a prank, but the hearing officer found it was a deliberate, vindictive act to embarrass Jane Doe personally and professionally.
- Jane Doe filed a grievance in 2009 and a civil suit in 2009; Usher’s responses to RFAs in the civil action were later found to be false.
- The Court suspended Usher from practicing law for at least three years, with no automatic reinstatement, and conditioned reinstatement on rigorous standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the email/dissemination violate the Rules of Professional Conduct? | Usher violated multiple rules through the email and its coordination. | The email was First Amendment protected and not in a professional capacity. | Yes; rules violations found, including 3.3(a)(1) and 8.4. |
| Are Usher's actions in civil discovery subject to the Rules of Professional Conduct? | Misrepresentations in RFAs violated 3.3(a)(1). | Actions occurred in civil litigation and not under professional conduct scope. | Yes; violations of 3.3(a)(1) established. |
| Did Usher knowingly misrepresent facts to the Indiana Disciplinary Commission or in responding to the grievance? | Respondent lied to the Commission and in his grievance response. | Some denials were misinterpretations, not intentional misrepresentations. | Yes; violations of 8.1(a) and 8.1(b) established. |
| Did Usher's conduct involve dishonesty and prejudice to the administration of justice? | Dissemination of the email and false responses showed dishonesty and prejudice. | Actions did not show bias against women; claimed as personal grievances. | Yes for 8.4(a), 8.4(c), and 8.4(d); 8.4(g) not established. |
| What discipline is appropriate given the misconduct? | Suspension or harsher discipline warranted due to pervasive dishonesty. | Discipline should be limited; consider mitigating factors. | Suspension for at least three years with rigorous reinstatement standards. |
Key Cases Cited
- Holland v. State, 911 N.E.2d 574 (Ind. 2009) (false accusation of bribing a judge supports discipline for misconduct)
- Cloyd, 794 N.E.2d 1088 (Ind. 2003) (untruthful statements to police support discipline)
- Haigh, 894 N.E.2d 550 (Ind. 2008) (misconduct involving sexual misconduct with minors; discipline approach)
- Newman, 958 N.E.2d 792 (Ind. 2011) (factors for determining sanctions in attorney discipline)
- Smith v. Johnston, 711 N.E.2d 1259 (Ind. 1999) (rejects hyper-technical parsing of disclosures; responsibility for misleading statements)
- Dempsey, N.E.2d , 2013 WL 1907774 (Ind. 2013) (discipline for scurrilous conduct; cited as authority on professional duties)