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Wednesday, May 21, 2014

Ind. Decisions - More on: Reactions to recent Indiana Supreme Court disciplinary opinion

Updating this May 7th ILB post on criticism of the Supreme Court's April 11th per curiam opinion in In the Matter of: Anonymous (opinion summarized here by the ILB), the ILB has now obtained, via the Clerk's Office, a copy of the Oct. 28, 2013 hearing officer's report.* (The report reveals the name of the attorney disciplined, however his name earlier has been reported in several press stories.)

The 26-page hearing officer's report is interesting reading. See particularly p. 16, beginning at #5, and concluding at the bottom of p. 18, where in response to the disciplinary officer's statement that with respect to the disciplinary case, "The discipline is not the important part. It's a determination of what the Rules require and what they say . .. ", hearing officer Magistrate Michael N. Pagano writes:

I must disagree with Mr. Rice's assessment. The law is important, without question. However, the idea that Respondent should be used as a mere instrument to re-write an exceptionally unsettled area of the law troubles me deeply, especially in light of the great lengths Respondent went to in ascertaining whether his participation in AAMIL would cause him disciplinary grief in the future.

7. As I have not previously served as a Hearing Officer, it is possible that the Commission's pursuit of charges in circumstances such as this, when the Rules are unsettled and a respondent has engaged in thorough due diligence, may well be common practice. If this is indeed the case, I would point to Justice David's opinion in Fry v. State, 990 N.E.2d 429 (Ind. 2013), wherein he wrote: '" ... that's the way we've always done it' is a poor excuse ... for continuing to do something wrong." Id. at 442. (emphasis in original).

Pagano's report concludes:
One final note, I stated at the close of evidence: "at first blush ... I'm left with the impression that ... the Commission may have overreached here." (Tr. p. 233). I then made clear that this was only a first impression and was subject to change. However, I am of the firm belief that my initial evaluation was, and remains, correct.
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* Although hearing officer reports in disciplinary hearings are public documents, they are generally not posted online, or accessible via the Court's press office. The ILB went through the Clerk's Office Record Division. Their fee schedule for public documents is set out at the end of this page.

Posted by Marcia Oddi on May 21, 2014 10:47 AM
Posted to Ind. Sup.Ct. Decisions