In Re Wilkins

of Michael A. WILKINS. the Matter No. 49S00-0005-DI-341.

Supreme Court Indiana. Clemens, Elberger, E. Robert B. Ronald Oct. Evans, & Kel- McKinney Bose G. Daniel Mixdorf, Miller, Jr., ley, Thomas E. Ice IN, Indianapolis, Respondent. Lundberg, R. Executive Secre- Donald Kidd, tary, Attorney, M. In- Charles Staff IN, dianapolis, for the Indiana Disciplinary Commission. DISCIPLINARY ACTION PER CURIAM. expe- Michael A.

Attorney Wilkins is an practitioner. rienced In a brief petition this supporting transfer to Court, an he stated that left him Indiana Court of wonder- whether to find party, determined adverse it then said whatever was whether necessary to reach that conclusion. We today that such violated Ind.Professional Conduct respondent’s suspension warrant of law in this state. This case is now before us of fact and con findings officer’s respondent’s peti clusions law and the findings tion for our review of those petitions party conclusions. Where a review, Court for we review de novo presented us record to reach the ultimate conclusion as misconduct and sanction Robak, Matter therefore. (Ind.1995). Additionally, respon argument requested oral for re questions presented deny that request. view. We good having duly standing, been admitted 14, practice Appellant’s law in on October this state Petition to Transfer” with the Clerk of though He this Court. Even litigation 1988. is member n necessarily did not in author the section law firm of Ice Indianapolis (a at words issue task admittedly here Miller and concentrates his in counsel), performed Michigan the re- law, family adoption appeals, general spondent signed pursuant the brief litigation, law. During and media Discipline 3(2)(d), IndAdmission and Rule respondent represent- and was “jointly responsible therefore ed and counsel for served as local Michi- therefore.” gan in an appeal Mutual Insurance of an Vigo adverse verdict The Superior respondent, in the “Petition to August Court. On Transfer” challenged Court of the Court of Appeals’ decision, in pursuant relevant Appeals Michigan part, issued its in opinion 11(B)(2)(f), App.R. by arguing: Company Mutual v. Sports, Insurance Inc., 4. opinion The Court (Ind.Ct.App.1998). Appeals in error for following The court’s affirmed reasons: the trial A. Thereafter, opinion erroneously court’s The verdict and award. and materi- ally misstates by making the record af- primary Michigan counsel pre- Mutual firmative regarding misstatements pared a accompany draft brief to a “Peti- evidence, directly affected the tion to Transfer” to this Court and for- court’s (specific ultimate conclusion mis- warded the draft to the The statements, prejudicial and their effect then edited draft and Mutual, on Michigan discussed “toned down” the tenor the brief. the accompanying Brief in Support); that Michigan believed [...] Sports, Mutual Insurance Co. Inc. mis- respondent, in “Brief Support ignored stated material misap- facts and Appellant’s Transfer,” Petition to ampli- plied controlling precedent, such that position, fied his client’s inter alia with the may transfer to this ap- have been following statements: propriate IndAppellate under published of Appeals’ Opinion 11(B)(2)(c) (f).1 quite disturbing. case is It is Footnote 15 of Court of replete with misstatements opinion states: facts, law, it misapplies controlling case Specifically, Michigan Mutual claims and it does not even bother to discuss Hopper Agency authority had “limited directly relevant on point. cases that are coverage to bind accept pre- [it] Clearly, decision should be re- behalf,” miums on its but not the author- only viewed Not by this Court. does it ity provisions, policy “alter appoint injustice work an appellant Michigan subagents, or anything gen- else that Company, Mutual Insurance estab- agents eral can typically Michigan do.” dangerous lishes precedent several Mutual’s Brief 23. It cites at neither undoubtedly areas of the law. This will authority nor evidence the record to problems create additional future support proposition. the latter cases.2 September

On signed Michigan and filed Mutual’s “Peti- 2Indeed, Opinion factually is so tion to “Brief in Support Transfer” and legally inaccurate that one is left to wonder precursor App.R. 1. That rule was the current was determined

whether the aggressive and and should inappropriate Inc., Sports, and then to find for way into Brief.” our never necessary to reach that said whatever charged The Commission (regardless whether the facts or decision). supported its the law 8.2(a) by violating Prof.Cond.R. with that he knew to be making statements this Court denied On March false, to their or with reckless as to Transfer” and ordered “Petition falsity concerning integrity or truth or as a “scurrilous brief stricken supporting or, case, qualifications of a judge, attack on the intemperate the Indiana three-judge panel of Court ” Michigan Mu- Appeals.... Court Appeals.2 Inc., Sports, Company tual Insurance officer found that the (Ind.1999). 706 N.E.2d 555 8.2(a) by Prof.Cond.R. respondent violated At disciplinary hearing, he made agreement agency contended as to the other did not find violation Ap- had been cited to the Court of which sections, quoted concluding that the state record, in the as well as testimo- peals provisions of merely paraphrased ments witnesses, supported trial ny two 11(B), governing grounds for trans App.R. mis- contention that Court fer turn back to the to this Court. We record facts that there stated the1 in his used in the was evidence record establish petition supporting for transfer and brief: to a agency opposed general limited materially opinion erroneously and also case agency. cited by making affirma- misstates record Appeals, law the Court of which he the evi- regarding tive misstatements Appeals ignored. contended ... dence Appeals’ published Opinion The Court of de- After this Court issued decision case is It is quite disturbing. transfer, nying respondent contacted replete with misstatements of Sharpnack, T. the office of the John Chief law, facts, misapplies case controlling Judge Appeals, the Indiana and it does not even bother to discuss Shepard, and Randall T. Chief Justice of point. directly relevant cases that are Indiana, to Court of schedule portions note that of former We relevant his personal with them to offer meetings 11(B)(2)provided: App.R. However, being able to apology. before Errors which a to transfer personally speak Judge Sharpnack or include: may shall be based Shepard, re- Chief Justice “Request Investigation” (f) ceived the or memorandum initiated proceed- these erro- decision ings, Judge after which he wrote both materially neously and misstates of- Sharpnack Shepard, record, setting and Chief mis- concisely out the (with fering ac- apologize person and to reference the record materiality “overly- appropriate), that the footnote was where knowledge adju- qualifications judge, Indiana Conduct Rule or Professional states, part: officer, in relevant legal dicatory or of a officer or lawyer a statement that the A shall make appointment judi- for election or candidate to be or with knows false reckless legal office. cial falsity concerning disregard as to the truth or specifically past This the misstatement and stat- has not ad- peti- dressed, resulting prejudice specifically, the constitutional tioner. tension between the First Amendment and the Code Responsi- of Professional find that state- We bility. Upon question, reflection of this above, although heavy-hand- quoted it is our a generalized belief that test ed, the bases of trans- roughly paraphrase cannot be drawn. Each prohibition, 11(b) App.R. as set forth in former fer circumscribed the factual setting as to avoid violation Prof.Cond.R. 8.2(a). present in a particular must be examined in light of affected State in respondent’s comments footnote interest and measured limi- the however, colorably appro- are not even placed tation on the freedom expres- of In 2 of the in footnote “Brief priate. sion. Petition to Support Appellant’s Trans- fer,” suggested that respondent the the Id. at 437. prohibitions in Prof. judges Appeals may on the 8.2(a) Cond.R. preserv are concerned with making by motivated in their decision been ing the in public’s the confidence adminis something proper other than the adminis- See, justice. e.g., tration of Matter Gar and, fact, justice, suggested in tration of (Ind.1994) ringer, 626 N.E.2d 813 We find that his unethical motivations. (“We duty note that by violated in violated Prof. comments Respondent violating [in Prof.Cond.R. 8.2] they were made because Cond.R. was his obligation to refrain from in acting as to the truth or with reckless way a that damages of the falsity concerning the of a three- judicial system.... stated, As we have Appeals. judge panel of the Court public suggestion by an at ‘Unwarranted review, his torney judicial that a officer is motivated argues application that of Prof. by criminal and purpose considerations in an un- 8.2 this case would be Cond.R. nothing does and weaken erode the speech. constitutional restriction of free adjudi in an public’s impartial confidence However, provides authority specifi- no ”). catory process citation [other omitted].’ cally illustrating or how his state- why See also Comment to Prof.Cond.R. 8.2.3 protected by ments are state or federal here, Applying analysis the Friedland we provisions. constitutional that offered no evi that, support dence to contentions Friedland, his In Matter 275 Ind. example, was deter N.E.2d a attor- appellee, mined to find for no matter what. ney attempting to influence accused evidence, Without such statements should by threatening publish- and public officials evidence, anywhere. not be made With ing critical comments about Commis- they Quali should respondent argued be made Judicial sion. his con- There, speech. fications See Matter Beck protected duct was free Commission. er, (Ind.1993) stated: (noting we N.E.2d 691 attorney provides, part: public Expressing 3. That Comment in relevant and defender. opinions honest and candid on such matters by lawyers Assessments relied on in evalu- are improving contributes to the administration ating professional personal fitness of justice. Conversely, false being ap- persons for election or considered lawyer pointment judicial public legal unfairly can confi- office undermine offices, general, justice. prosecuting dence in the administration judicial honesty, among integrity, officer had and truthfulness if a believes misconduct, Bar, appropriate peers among members his engaged in judiciary. a com of the He also bring would be to found course of action Qualifications complete made a full dis- Com to the Judicial plaint mission). surrounding facts this disci- state’s interest closure In this a com- plinary matter and maintained public’s confidence preserving pletely administra attitude toward judicial system cooperative overall Also was his justice outweighed any disciplinary process. need for cited far tion community air his extensive involvement unsubstantiated for such civic activities. improper concerns in an forum statements. aggravating We also consider factors. by the re- persuaded

We also submitted a written parties (again unsupported spondent’s contention re- stipulation regarding any authority) that his statements cited actions, officer morse his “critique Opinion merely a were testimony found that the “be- bench, bar, throughout format used action lied belief that journals.” appel- current rules of and Our merely poor stems from a choice of of procedure late dictate the boundaries words.” The stated remorse practice. For exam- acceptable appellate only feelings personal related to his of 46(A)(8)(a) argu- requires that ple, App.R. public humiliation as embarrassment by supported ments on must be appeal the striking the result of this Court’s order authorities, reasoning, citations to cogent essence, In offending brief. the A or used statutes the record. that, although might dent averred he use appellate the in a filed before document in the sub- language, different believes law- that an courts contains assertion stance of the contained knows or made with reck- yer to be false footnote. That he chose to contest this falsity or less as to truth through procedures matter available all concerning the or qualifications Discipline under the Admission and Rules contem- judge is neither “format” further our underscores his by nor allowed plated appellate our rules to only remorse attaches the fact his state- by our Conduct. Rules not- consequence, ments were not without Professional personal- withstanding attempts his earlier misconduct, found we now Having ly apologize to members of the proper In address the issue of sanction. bench. nature of analysis, we examine the violation, attorney, specific acts Similar instances violation of Prof. preserve in garnered suspen- Cond.R. 8.2 have short responsibility Court’s See, (30 Becker, Bar, day any e.g., supra, risk to sion. tegrity subjected suspension practice be if the of law will from profession, judge manipulated continue in the accusations that a trial permitted is the al record in any consequences that flow from order rule his Reed, client); conduct, leged the state of mind Matter 716 N.E.2d (Ind.1999) mitigat reprimand stating attorney, any exacerbating (public Charos, judge’s “arrogance factors. that the trial court is Matter of (Ind.1992). hearing only by ignorance,” officer exceeded her and that any comprehension found that the has maintained “she doesn’t have respect exemplary going [Title record for what’s on with to those outstanding learn.”; SULLIVAN, J., cases and she refuses dissents with separate IV-D] Shepard opinion. Dickson Justice Chief sanction, dissenting believing J., BOEHM, dissents with separate Reed, inadequate). opinion. present only incompetence. In the alleged respondent alleged deliberately SULLIVAN, J., dissenting. conduct on the Court part

unethical I respectfully dissent. When the re- Appeals. spondent said that here “one is left to wonder whether the Court of Appeals was officer recommended determined to find for ... and respondent be from the suspended then said whatever was necessary to reach thirty of law for days. Precedent (regardless that conclusion of whether the period that a suspension for that is reveals facts or law supported that conclu- sufficient for the of state- generally types sion),” made a statement This hyperbole,” of “rhetorical incapable of be- quite troubled ing proved true or false. The First express continued failure to remorse provides lawyers Amendment who use and, in particular, strong his actions hyperbole concerning qualifica- only sorry indication he is tions or judge protection consequences he suffered because negative Comm, See Standing sanction. In light actions. of these consider- Discipline the United States Dist. Court ations, thirty-day we conclude that sus- (9th Yagman, F.3d imposed. should be pension Cir.1995). While there is much as debate is, therefore, respon- It ordered that the protection extends, to how far this I agree dent, Wilkins, Michael A. for suspended Boehm that it with Justice extends at least (30) thirty beginning period days, as far by respon- as the 7, 2002, at the December conclusion dent here. automatically he shall be reinstated law. BOEHM, J., concurs. The Clerk of this Court is directed J., BOEHM, dissenting. provide notice of this order in accordance agree I dissent. I respectfully with the 23(3)(d) with Admis.Disc.R. and to the quoted conclusion that the passage Court’s officer, provide and to clerk of from the text brief is not States Court of United ground discipline. Although is it Circuit, Seventh the clerk of each handed,” “heavy it nevertheless asserts state, States District United Courts grounds provided by for transfer this the clerks of the Bank- United States Court’s rules. Courts in the last ruptcy this state with 2, it disagree I that footnote tasteless as address of reflected known is, ground is a action. The in the records of the Clerk. footnote asserts “one is left to wonder proceeding of this assessed Costs Court of Appeals whether the was deter- ... mined to find' and then necessary

said whatever was to reach that SHEPARD, C.J., (regardless and DICKSON whether the facts conclusion).” RUCKER, JJ., I supported concur. or the law activity conten- cannot punish protected sion agree not do footnote, and I cer- the First Amendment.” Gentile v. State offending tions Nev., respondent’s Bar 501 U.S. 111 S.Ct. tainly do condone the not (1991). 2720, them. 115 L.Ed.2d 888 It seems expressing choice me, then, Moreover, was intemperate language clear to that Justice Sullivan is Atanga, it advocacy, distracting as correct when he noted In re very poor does (Sullivan (1994) 1253, sought N.E.2d 1259 n. that are be 636 points from J., do that the malice” test dissenting), I not believe these “actual made. nevertheless Sullivan, Indeed, I N.Y. would of Times v. 376 U.S. opinions are sanctionable. range pro- applies 11 L.Ed.2d 686 find them within broad S.Ct. commentary a matter of that an violation has fair on determinations ethics tected legal expressing occurred criticism public interest. one, a subjective That test is opinion. under- certainly for violation to have occurred the the intellectual challenge stood “in fact entertained [had have] suggests I not it opinion, believe serious doubts as to truth of [the] deciding the case in any motive other than publication.” Harte-Hanks Communica- determined party favor of the court tions, Connaughton, Inc. v. 491 U.S. sug- prevail. certainly It does not should 105 L.Ed.2d 562 S.Ct. respect, gest motives. this criminal (1989). no different from the attacks seems me out, nonprofessionals many lawyers points As the Court decisions, why includ- many court set forth the reasons he believed his launched ones as v. Gore criticism of the such notable Bush valid. I v. cannot He the court’s was “fac- Brown Board Education. contends inaccurate,” tually and legally how footnote differs misstated see record, by judges charges occasionally misapplied leveled at case law and did example, judges. For Scalia discuss other relevant He contends other cases. recently Virginia, day that to this sub- contended Atkins “believes -, 536 U.S. S.Ct. 153 stance of the contained (2002) (Scalia, J., dissenting) I do Although agree L.Ed.2d 335 footnote.” not “[sjeldom conclusions, of this I can find has no basis to obviously upon nothing so but the serious rested entertained accuracy See also doubts as his claims. personal views of members.” Servs., Therefore, agree v. I not Reproductive Webster Health do punishable under U.S. 109 S.Ct. L.Ed.2d conduct Rule 8.2. (1989) (Scalia, J., concurring) (stating I Finally, very think we cau- should be that assertions Justice O’Connor were in imposing discipline lawyers’ tious “irrational” and “cannot taken serious- question processes acts the actions or ly”). not inter- of the courts but do affect client previously judge, jury, held ests. This Court acts as law in a disciplinary pro- that the of defamation and the reviewer law professional overlap, ceeding. prosecutor, Disciplinary re conduct 94, Commission, Terry, 271 relies on this for fund- Ind. con- 95-96 the United States and direction. the offense Where that “disci- be- judiciary, Court has made it clear sists criticism of we since plinary governing legal profes- the victim as well. This mixed role rules come is thrust us State Constitu- it, I believe that it de- accept

tion. in imposing

mands the utmost restraint

discipline of criticism of the expression finding I that a require

courts. would

lawyer had at least substantial doubt as to accuracy of a misstated fact

before for com- sanctioning judicial processes. That acts

standard is not met here. GARNER,

Joseph Appellant B.

(Defendant below), Indiana, Appellee

STATE of below).

(Plaintiff

No. 31S01-0202-CR-132.

Supreme Court Indiana. 29, 2002.

Oct.

Case Details

Case Name: In Re Wilkins

Court Name: Indiana Supreme Court

Date Published: Oct 29, 2002

Citation: 777 N.E.2d 714

Docket Number: 49S00-0005-DI-341

Court Abbreviation: Ind.