FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
DISCIPLINARY COMMISSION
Ronald E. Elberger, Donald R. Lundberg, Executive
Secretary
Robert B. Clemens Charles M. Kidd, Staff Attorney
BOSE McKINNEY & EVANS 115 West Washington Street
Indianapolis, Indiana 46204 Indianapolis, Indiana 46204
G. Daniel Kelley, Jr.,
Thomas E. Mixdorf
ICE MILLER
Indianapolis, Indiana 46204
IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) CASE NO. 49S00-0005-DI-341
MICHAEL A. WILKINS )
DISCIPLINARY ACTION
October 29, 2002
Per Curiam
Attorney Michael A. Wilkins is an experienced appellate practitioner.
In a brief supporting a petition for transfer to this Court, he stated that
an opinion of the Indiana Court of Appeals left him wondering whether the
Court of Appeals was determined to find for the adverse party, and whether
it then said whatever was necessary to reach that conclusion. We find
today that such statements violated Ind.Professional Conduct Rule 8.2(a)
and warrant the respondent’s suspension from the practice of law in this
state.
This case is now before us upon the hearing officer’s findings of fact
and conclusions of law and the respondent’s petition for our review of
those findings and conclusions. Where a party petitions this Court for
review, we review de novo the record presented us to reach the ultimate
conclusion as to misconduct and sanction therefore. Matter of Robak, 654
N.E.2d 731 (Ind.1995). Additionally, the respondent has requested oral
argument on the questions presented in his petition for review. We deny
that request.
The respondent is an attorney in good standing, having been duly
admitted to practice law in this state on October 14, 1988. He is a member
of the litigation section in the Indianapolis law firm of Ice Miller and
concentrates his practice in family and adoption law, appeals, general
litigation, and media law. During 1997, 1998, and 1999, the respondent
represented and served as local counsel for Michigan Mutual Insurance in an
appeal of an adverse verdict from the Vigo Superior Court. On August 27,
1998, the Court of Appeals issued its opinion in Michigan Mutual Insurance
Company v. Sports, Inc., 698 N.E.2d 834 (Ind.Ct.App. 1998). The court's
opinion affirmed the trial court's verdict and award. Thereafter, primary
counsel for Michigan Mutual prepared a draft brief to accompany a "Petition
to Transfer" to this Court and forwarded the draft to the respondent. The
respondent then edited the draft and "toned down" the tenor of the brief.
The respondent believed that Michigan Mutual Insurance Co. v. Sports,
Inc. misstated material facts and ignored or misapplied controlling
precedent, such that transfer to this Court may have been appropriate under
Ind.Appellate Rule 11(B)(2)(c) and (f).[1]
Footnote 15 of the Court of Appeals opinion states:
Specifically, Michigan Mutual claims the Hopper Agency had "limited
authority to bind [it] to coverage and accept premiums on its behalf,"
but not the authority to "alter policy provisions, appoint subagents,
or do anything else that general agents typically can do." Michigan
Mutual's Brief at 23. It cites neither authority nor evidence in the
record to support the latter proposition.
On September 25, 1998, the respondent signed and filed Michigan
Mutual's "Petition to Transfer" and "Brief in Support of Appellant's
Petition to Transfer" with the Clerk of this Court. Even though the
respondent did not necessarily author the words at issue here (a task
admittedly performed by Michigan counsel), the respondent signed the brief
pursuant to Ind.Admission and Discipline Rule 3(2)(d), and was therefore
“jointly responsible therefore."
The respondent, in the "Petition to Transfer" challenged the Court of
Appeals' decision, in relevant part, pursuant to App.R. 11(B)(2)(f), by
arguing:
4. The opinion of the Court of Appeals is in error for the following
reasons:
A. The opinion erroneously and materially misstates the record by
making affirmative misstatements regarding the evidence, which
directly affected the court's ultimate conclusion (specific
misstatements, and their prejudicial effect on Michigan Mutual, are
discussed in the accompanying Brief in Support); [. . .]
The respondent, in the "Brief in Support of Appellant's Petition to
Transfer,” amplified his client's position, inter alia with the following
statements:
The Court of Appeals' published Opinion in this case is quite
disturbing. It is replete with misstatements of material facts, it
misapplies controlling case law, and it does not even bother to
discuss relevant cases that are directly on point. Clearly, such a
decision should be reviewed by this Court. Not only does it work an
injustice on appellant Michigan Mutual Insurance Company, it
establishes dangerous precedent in several areas of the law. This will
undoubtedly create additional problems in future cases.2
. . .
2Indeed, the Opinion is so factually and legally inaccurate that one
is left to wonder whether the Court of Appeals was determined to find
for Appellee Sports, Inc., and then said whatever was necessary to
reach that conclusion (regardless of whether the facts or the law
supported its decision).
On March 5, 1999, this Court denied the "Petition to Transfer" and
ordered the supporting brief stricken as a "scurrilous and intemperate
attack on the integrity of the Court of Appeals...." Michigan Mutual
Insurance Company v. Sports, Inc., 706 N.E.2d 555 (Ind. 1999).
At disciplinary hearing, the respondent contended that an agency
agreement which had been cited to the Court of Appeals in the record, as
well as the testimony of two trial witnesses, supported his contention that
the Court of Appeals misstated the record and facts in that there was
evidence in the record to establish a limited agency as opposed to a
general agency. The respondent also cited case law to the Court of Appeals,
which he contended the Court of Appeals ignored.
After this Court issued its decision denying transfer, the respondent
contacted the office of the John T. Sharpnack, Chief Judge of the Indiana
Court of Appeals, and Randall T. Shepard, Chief Justice of the Supreme
Court of Indiana, to schedule meetings with them to offer his personal
apology. However, before being able to personally speak with Judge
Sharpnack or Chief Justice Shepard, the respondent received the "Request
for Investigation" which initiated these disciplinary proceedings, after
which he wrote to both Judge Sharpnack and Chief Justice Shepard, offering
to apologize in person and to acknowledge that the footnote was "overly-
aggressive and inappropriate and should never have made its way into our
Brief."
The Commission charged the respondent with violating Prof.Cond.R.
8.2(a) by making statements that he knew to be false, or with reckless
disregard as to their truth or falsity concerning the integrity or
qualifications of a judge, or, in this case, a three-judge panel of the
Indiana Court of Appeals.[2]
The hearing officer found that the respondent violated Prof.Cond.R.
8.2(a) by the statements he made in footnote 2, but did not find a
violation as to the other quoted sections, concluding that the statements
merely paraphrased provisions of App.R. 11(B), governing grounds for
transfer to this Court. We turn back to the language used by the
respondent in his petition for transfer and supporting brief:
The opinion erroneously and materially misstates the record by making
affirmative misstatements regarding the evidence . . .
The Court of Appeals' published Opinion in this case is quite
disturbing. It is replete with misstatements of material facts, it
misapplies controlling case law, and it does not even bother to
discuss relevant cases that are directly on point.
We note that relevant portions of former App.R. 11(B)(2) provided:
Errors upon which a petition to transfer shall be based may include:
(f) that the opinion or memorandum decision of the Court of Appeals
erroneously and materially misstates the record, concisely setting out
the misstatement (with reference to the record where appropriate), the
materiality of the misstatement and specifically stating the resulting
prejudice to the petitioner.
We find that the respondent’s statements quoted above, although heavy-
handed, roughly paraphrase the bases of transfer as set forth in former
App.R. 11(b) such as to avoid violation of Prof.Cond.R. 8.2(a).
The respondent's comments in footnote 2, however, are not even
colorably appropriate. In footnote 2 of the "Brief in Support of
Appellant's Petition to Transfer," the respondent suggested that the judges
on the Court of Appeals may have been motivated in their decision making by
something other than the proper administration of justice, and, in fact,
suggested unethical motivations. We find that his comments in footnote 2
violated Prof.Cond.R. 8.2(a) because they were made with reckless disregard
as to the truth or falsity concerning the integrity of a three-judge panel
of the Court of Appeals.
In his petition for review, the respondent argues that the application
of Prof.Cond.R. 8.2 in this case would be an unconstitutional restriction
of free speech. However, he provides no authority specifically illustrating
why or how his statements are protected by state or federal constitutional
provisions.
In Matter of Friedland, 416 N.E.2d 433 (Ind. 1981), a respondent
attorney was accused of attempting to influence public officials by
threatening and publishing critical comments about the Commission. The
respondent argued that his conduct was protected free speech. There, we
stated:
This Court in the past has not addressed, specifically, the
constitutional tension between the First Amendment and the Code of
Professional Responsibility. Upon reflection of this question, it is
our belief that a generalized test cannot be drawn. Each prohibition,
circumscribed by the factual setting present in a particular case,
must be examined in light of the affected State interest and measured
against the limitation placed on the freedom of expression.
Id. at 437. The prohibitions in Prof.Cond.R. 8.2(a) are concerned with
preserving the public’s confidence in the administration of justice. See,
e.g., Matter of Garringer, 626 N.E.2d 809, 813 (Ind. 1994) (“We note that
the duty violated by the Respondent [in violating Prof.Cond.R. 8.2] was his
obligation to refrain from acting in a way that damages the integrity of
the judicial system. . . . As we have stated, "[u]nwarranted public
suggestion by an attorney that a judicial officer is motivated by criminal
purpose and considerations does nothing but weaken and erode the public's
confidence in an impartial adjudicatory process [other citation
omitted].”). See also Comment to Prof.Cond.R. 8.2.[3] Applying the
Friedland analysis here, we find that the respondent offered no evidence to
support his contentions that, for example, the Court of Appeals was
determined to find for appellee, no matter what. Without evidence, such
statements should not be made anywhere. With evidence, they should be made
to the Judicial Qualifications Commission. See Matter of Becker, 620
N.E.2d 691 (Ind. 1993) (noting that if a lawyer believes a judicial officer
had engaged in misconduct, the appropriate course of action would be to
bring a complaint to the Judicial Qualifications Commission). In this
case, the state’s interest in preserving the public’s confidence in the
judicial system and the overall administration of justice far outweighed
any need for the respondent to air his unsubstantiated concerns in an
improper forum for such statements.
We are also not persuaded by the respondent’s contention (again
unsupported by any cited authority) that his statements were merely a
“critique of the Opinion in a format used throughout the bench, bar, and
journals.” Our current rules of appellate procedure dictate the boundaries
of acceptable appellate practice. For example, App.R. 46(A)(8)(a) requires
that arguments on appeal must be supported by cogent reasoning, citations
to authorities, statutes or the record. A statement used in a document
filed before the appellate courts that contains an assertion the lawyer
knows to be false or made with reckless disregard as to the truth or
falsity concerning the qualifications or integrity of a judge is neither a
“format” contemplated by our appellate rules nor allowed by our Rules of
Professional Conduct.
Having found misconduct, we now address the issue of proper sanction.
In this analysis, we examine the nature of the violation, specific acts of
the attorney, the Court's responsibility to preserve the integrity of the
Bar, and any risk to which the public will be subjected if the attorney is
permitted to continue in the profession, any consequences that flow from
the alleged conduct, the state of mind of the attorney, and any
exacerbating or mitigating factors. Matter of Charos, 585 N.E.2d 1334
(Ind. 1992). The hearing officer found that the respondent has maintained
an outstanding and exemplary record for honesty, integrity, and
truthfulness among his peers in the Bar, and among members of the
judiciary. He also found that the respondent made a full and complete
disclosure of the facts surrounding this disciplinary matter and has
maintained a completely cooperative attitude toward the disciplinary
process. Also cited was his extensive involvement in community and civic
activities.
We also consider aggravating factors. Although the parties submitted
a written stipulation regarding the respondent's remorse for his actions,
the hearing officer found that the respondent's testimony “belied his
belief that this disciplinary action stems merely from a poor choice of
words.” The respondent's stated remorse related only to his feelings of
personal embarrassment and public humiliation as the result of this Court's
order striking the offending brief. In essence, the respondent averred
that, although he might use different language, he believes in the
substance of the language contained in the footnote. That he chose to
contest this matter through all procedures available under the Admission
and Discipline Rules further underscores our conclusion that his remorse
only attaches to the fact his statements were not without consequence,
notwithstanding his earlier attempts personally to apologize to members of
the appellate bench.
Similar instances of violation of Prof.Cond.R. 8.2 have garnered short
suspension. See, e.g., Becker, supra, (30 day suspension from the practice
of law for accusations that a trial judge manipulated the record in order
to rule against his client); Matter of Reed, 716 N.E.2d 426 (Ind. 1999)
(public reprimand for stating that the trial court judge’s "arrogance is
exceeded only by her ignorance," and that "she doesn't have any
comprehension of what's going on with respect to those [Title IV -D] cases
and she refuses to learn."; Chief Justice Shepard and Justice Dickson
dissenting as to the sanction, believing it to be inadequate). In Reed, the
respondent alleged only incompetence. In the present case, the respondent
alleged deliberately unethical conduct on the part of the Court of Appeals.
The hearing officer recommended that the respondent be suspended from
the practice of law for thirty days. Precedent reveals that a suspension
for that period is generally sufficient for the types of statements made by
the respondent. This Court is quite troubled by the respondent’s continued
failure to express remorse for his actions and, in particular, the strong
indication that he is sorry only for the negative consequences he suffered
because of his actions. In light of these considerations, we conclude that
a thirty-day suspension should be imposed.
It is, therefore, ordered that the respondent, Michael A. Wilkins, be
suspended for a period of thirty (30) days, beginning December 7, 2002, at
the conclusion of which he shall be automatically reinstated to the
practice of law.
The Clerk of this Court is directed to provide notice of this order in
accordance with Admis.Disc.R. 23(3)(d) and to the hearing officer, and to
provide the clerk of the United States Court of Appeals for the Seventh
Circuit, the clerk of each of the United States District Courts in this
state, and the clerks of the United States Bankruptcy Courts in this state
with the last known address of respondent as reflected in the records of
the Clerk.
Costs of this proceeding are assessed against the respondent.
Shepard, C.J., and Dickson and Rucker, JJ., concur.
Sullivan, J., dissents with separate opinion.
Boehm, J., dissents with separate opinion.
SULLIVAN, J., dissenting.
I respectfully dissent. When the respondent here said that "one is
left to wonder whether the Court of Appeals was determined to find for
Appellee ... and then said whatever was necessary to reach that conclusion
(regardless of whether the facts or the law supported that conclusion),"
the respondent made a statement of "rhetorical hyperbole," incapable of
being proved true or false. The First Amendment provides lawyers who use
such hyperbole concerning the qualifications or integrity of the judge
protection from sanction. See Standing Comm. on Discipline of the United
States Dist. Court vs. Yagman, 55 F. 3rd 1430, 1438, 1441 (9th Cir. 1995).
While there is much debate as to how far this protection extends, I agree
with Justice Boehm that it extends at least as far as the statement made by
respondent here.
Boehm, J., concurs.
BOEHM, J., dissenting.
I respectfully dissent. I agree with the Court’s conclusion that the
quoted passage from the text of respondent’s brief is not a ground for
discipline. Although it is “heavy handed,” it nevertheless asserts grounds
for transfer provided by this Court’s rules.
I disagree that footnote 2, tasteless as it is, is a ground for
disciplinary action. The footnote asserts that “one is left to wonder
whether the Court of Appeals was determined to find for Appellee . . . and
then said whatever was necessary to reach that conclusion (regardless of
whether the facts or the law supported that conclusion).” I do not agree
with the respondent’s contentions in the offending footnote, and I
certainly do not condone the respondent’s choice of language in expressing
them. Moreover, such intemperate language is very poor advocacy,
distracting as it does from the points that are sought to be made. I
nevertheless do not believe these opinions are sanctionable. Indeed, I
would find them within the broad range of protected fair commentary on a
matter of public interest.
Although footnote 2 certainly is understood to challenge the
intellectual integrity of the opinion, I do not believe it suggests any
motive other than deciding the case in favor of the party the court
determined should prevail. It certainly does not suggest criminal motives.
In this respect, it seems to me no different from the attacks many lawyers
and nonprofessionals have launched on many court decisions, including such
notable ones as Bush v. Gore and Brown v. Board of Education. I cannot see
how this footnote differs from the charges occasionally leveled by judges
at other judges. For example, Justice Scalia recently contended in Atkins
v. Virginia, 536 U.S. __, __ (2002) (Scalia, J., dissenting) that “[s]eldom
has an opinion of this Court rested so obviously upon nothing but the
personal views of its members.” See also Webster v. Reproductive Health
Servs., 492 U.S. 490, 532 (1989) (Scalia, J., concurring) (stating that
assertions by Justice O’Connor were “irrational” and “cannot be taken
seriously”).
Although this Court has previously held that the law of defamation and
the law of professional conduct do not overlap, In re Terry, 271 Ind. 499,
502, 394 N.E.2d 94, 95-96 (1979), the United States Supreme Court has since
made it clear that “disciplinary rules governing the legal profession
cannot punish activity protected by the First Amendment.” Gentile v. State
Bar of Nev., 501 U.S. 1030, 1054 (1991). It seems clear to me, then, that
Justice Sullivan was correct when he noted in In re Atanga, 636 N.E.2d
1253, 1259 n.1 (1994) (Sullivan J., dissenting), that the “actual malice”
test of N.Y. Times v. Sullivan, 376 U.S. 254 (1964), applies to
determinations that an ethics violation has occurred by expressing
criticism of a legal opinion. That test is a subjective one, and for a
violation to have occurred the respondent “in fact [had to have]
entertained serious doubts as to the truth of [the] publication.” Harte-
Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688 (1989).
As the Court points out, the respondent set forth the reasons why he
believed his criticism of the Court of Appeals was valid. He contends the
court’s opinion was “factually and legally inaccurate,” misstated the
record, misapplied case law and did not discuss other relevant cases. He
contends that to this day he “believes in the substance of the language
contained in the footnote.” Although I do not agree with his conclusions,
I can find no basis to find that the respondent entertained serious doubts
as to the accuracy of his claims. Therefore, I do not agree the
respondent’s conduct is punishable under Rule 8.2.
Finally, I think we should be very cautious in imposing discipline for
lawyers’ acts that question the actions or processes of the courts but do
not affect client interests. This Court acts as judge, jury, and appellate
reviewer in a disciplinary proceeding. The prosecutor, the Disciplinary
Commission, relies on this Court for funding and direction. Where the
offense consists of criticism of the judiciary, we become the victim as
well. This mixed role is thrust upon us by the State Constitution. I
accept it, but believe that it demands the utmost restraint in imposing
discipline for expression of criticism of the courts. I would require a
finding that a lawyer had at least substantial doubt as to the accuracy of
a misstated material fact before sanctioning the lawyer for comments on
judicial acts or processes. That standard is not met here.
-----------------------
[1] That rule was the precursor to the current App.R. 57.
[2] Rule Indiana Professional Conduct Rule 8.2(a) states, in relevant part:
A lawyer shall not make a statement that the lawyer knows to be false or
with reckless disregard as to the truth or falsity concerning the
qualifications or integrity of a judge, adjudicatory officer or public
legal officer, or of a candidate for election or appointment to judicial or
legal office.
[3] That Comment provides, in relevant part:
Assessments by lawyers are relied on in evaluating the professional or
personal fitness of persons being considered for election or appointment to
judicial office and to public legal offices, such as attorney general,
prosecuting attorney and public defender. Expressing honest and candid
opinions on such matters contributes to improving the administration of
justice. Conversely, false statements by a lawyer can unfairly undermine
public confidence in the administration of justice.