123 N.E.3d 683
Ind.2019Background
- Judge Robert W. Freese (Hendricks Superior Court 1 since 2001) appointed longtime friend Stephen Scott as trustee of the Herbert Hochreiter Living Trust and later as personal representative of Hochreiter’s estate shortly after lending Scott $122,400 recorded by mortgage and promissory note.
- Scott, an unqualified fiduciary with recent bankruptcy and poor credit, failed to provide required annual accountings for the trust (2006–2009) and delayed estate accounting; the court repeatedly granted extensions despite beneficiary objections.
- Between 2007 and 2011 there were numerous warning signs (missing bank balances, unresponsive trustee, returned summonses, beneficiary motions and objections) that Freese largely ignored or addressed only minimally for years.
- In 2013 Freese entered judgment against Scott for nearly $580,000 based on findings of unjustified transfers and withdrawals from trust and estate accounts; Freese never referred the matter to prosecutors; Scott later pleaded guilty in federal court for embezzlement (2007–2011) and stolen funds remain unrecovered.
- The Indiana Commission on Judicial Qualifications charged Freese with violations of the Code of Judicial Conduct (impropriety, permitting social relationships to influence judgment, failure to perform duties diligently, and partiality in appointments). The parties stipulated to facts and agreed to discipline.
- The Indiana Supreme Court accepted the agreement and imposed a 45-day unpaid suspension (July 8–Aug 22, 2019) and assessed costs against Freese, finding his conduct negligent and enabling large-scale theft.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Freese’s appointment of Scott violated Rule 2.13(A)(1) (impartial, merit-based appointments) | Appointment was driven by friendship despite Scott’s lack of fiduciary experience and poor credit, so it was not merit-based | Freese trusted Scott and relied on counsel/unsupervised-trust structure; misconduct not willful | Held: Appointment violated Rule 2.13(A)(1); objectively Scott was unqualified and appointment reflected favoritism |
| Whether Freese violated Rule 2.4(B) by allowing a social relationship to influence judicial conduct | Friendship with Scott visibly influenced repeated leniency and failure to act | Freese characterized failures as negligent, not deliberate, and asserted reliance on attorneys and trust terms | Held: Violated Rule 2.4(B); friendship clouded judgment over many years leading to unreasonable credulity and leniency |
| Whether Freese breached Rule 2.5(A) duty to perform judicial and administrative duties competently, diligently, promptly | Freese failed to require timely accountings, ignored warnings, and delayed enforcement despite statutory and court-authority to act sua sponte | Freese pointed to cooperation from counsel, unsupervised trust structure, and lack of prior discipline; claimed should have acted sooner in hindsight | Held: Violated Rule 2.5(A); prolonged inaction and minimal responses permitted mismanagement and embezzlement |
| Appropriate discipline for the combined misconduct | Commission sought sanction reflecting serious harm to trust/estate and public confidence | Parties stipulated to 45-day unpaid suspension; Freese cited long distinguished service, remorse, and lack of personal gain as mitigators | Held: Court accepted the 45-day unpaid suspension and costs; suspension warranted given gravity of harm though misconduct was largely negligent rather than intentional |
Key Cases Cited
- In re Hawkins, 902 N.E.2d 231 (Ind. 2009) (guidance on balancing serious harm against mitigation and use of suspension as discipline)
- In re Johanningsmeier, 103 N.E.3d 633 (Ind. 2018) (recusal and friendship influencing judicial conduct)
- In re Van Rider, 715 N.E.2d 402 (Ind. 1999) (failure to recuse where close family relationship existed)
- In re Boles, 555 N.E.2d 1284 (Ind. 1990) (60-day suspension in context of injudicious public conduct and political involvement)
- In re Cox, 680 N.E.2d 528 (Ind. 1997) (30-day-plus suspension for sentencing practices and procedural misconduct)
- In re Young, 943 N.E.2d 1276 (Ind. 2011) (serious sanction for misleading defendants and penalizing trial attendance)
- In re Kouros, 816 N.E.2d 21 (Ind. 2004) (discipline for systemic delay in issuing orders)