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Friday, May 17, 2013

Ind. Decisions - Supreme Court suspends attorney for 3 years, without automatic reinstatement

In In re Arthur J. Usher, IV, a 14-page (yes, 14-page), 4-1 per curiam opinion in an attorney disciplinary action, the Court writes:

We find that Respondent, Arthur J. Usher, IV, committed attorney misconduct by, among other things, engaging in a pervasive pattern of conduct involving dishonesty and misrepresentation that was prejudicial to the administration of justice. For this misconduct, we conclude that Respondent should be suspended from the practice of law in this state for at least three years without automatic reinstatement.
This is an incredible story, involving an attorney who, spurned in his pursuit of a romantic relationship with a law student, undertook the conduct described in the opinion:
In July of 2008, Respondent asked the producer of a horror movie in which Jane Doe had appeared to help him obtain a clip from another movie in which Jane Doe also appeared. The producer sent Respondent a clip from that movie that appeared to show Jane Doe in a state of undress ("the clip"). After Respondent advised Jane Doe of his meeting with the producer, Jane Doe decided to end their friendship. Respondent then began attempting to humiliate Jane Doe and to interfere with her employment prospects.

In August of 2008, Respondent sent the clip to an attorney at Bose, where Jane Doe had already accepted a job offer. Respondent attempted to convince the attorney that Jane Doe's appearance in a horror film in a state of undress would have an adverse effect on the ability of Bose to retain and/or attract clients. Suspicious of Respondent's motives, the attorney did not take Respondent's suggestion to send the clip to the firm's executive committee. Jane Doe commenced her employment with Bose despite Respondent's efforts to interfere.

On September 17, 2008, Respondent sent Jane Doe an email accusing her of lying to and misleading him regarding her affections. Jane Doe responded with an email stating: "Leave me alone. Do not contact me. You have been harassing me for months now. If you do not stop harassing me, I will file for a restraining order."

Respondent then decided to publish the clip to a much wider audience. To accompany the clip, he drafted a fictitious email thread intended to appear to be an exchange of opinions among lawyers and other fictitious persons ("the email"). The email included the following excerpts: * * *

The email also contained a link to a site where the movie could be purchased on DVD, with the suggestion that copies be sent to in-house counsel.

Respondent recruited his paralegal at Krieg DeVault, "KB," to disseminate the email. KB had been fired from Bose and was very loyal to Respondent.

Respondent gave KB a flash drive containing the email contents and the clip. Respondent suggested to KB that the recipients of the email include attorneys at Bose, that it be sent from a location that would avoid it being traced back to them, that the email appear to have originated from somebody with "clout" at Bose,1 and that it be sent after Respondent departed for vacation over the upcoming Thanksgiving holiday. In her testimony, KB disclaimed any knowledge of the contents of the email or acquaintance with Jane Doe. She believed the email was simply some sort of prank.

There is much, much more.

Re discipline:

Respondent's misconduct involves pervasive dishonesty in the email, the civil action, and this disciplinary action. His misconduct involving the email was motivated by personal revenge and his intent was to harm Jane Doe personally and professionally. He continues to advance hyper-technical interpretations of various discovery requests as an excuse for his failure to provide truthful answers. His evasive attitude toward his duties in the civil and disciplinary actions suggests a danger to the profession and to the public if he continues in practice. * * *

Respondent has shown no substantial remorse or insight into his misconduct. It is this lack of insight that leads us to believe that a substantial sanction is necessary to ensure that the seriousness of his misconduct is impressed upon him and that similar misconduct is not repeated in the future. See Newman, 958 N.E.2d at 800. We conclude that Respondent should be suspended for a period of at least three years and that any possibility of reinstatement thereafter be available only upon satisfaction of Indiana's rigorous standards for reinstatement, which require clear and convincing evidence of the petitioner's remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b). * * *

All Justices concur, except David, J., who dissents regarding the sanction imposed, believing disbarment is warranted.

ILB: Regarding Justice David's dissent, see this ILB post from May 8th.

Posted by Marcia Oddi on May 17, 2013 03:31 PM
Posted to Ind. Sup.Ct. Decisions