|FOR THE RESPONDENT |FOR THE INDIANA SUPREME COURT |
| |DISCIPINARY COMMISSION |
| | |
|Ronald E. Elberger |Donald R. Lundberg, Executive |
|Indianapolis, Indiana |Secretary |
| |Dennis K. McKinney, Staff Attorney |
| |115 West Washington Street, Suite 1060|
| |Indianapolis, IN 46204 |
IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) CASE NO. 49S00-0110-DI-443
PAUL J. PAGE )
DISCIPLINARY ACTION
August 30, 2002
Per Curiam.
The respondent here, Paul J. Page, failed to take action while, in
open court with his client, the client testified that he had not driven a
car in nine years when in fact the client had, a statement the respondent
had reason to believe was untruthful. We find the respondent violated
Ind.Professional Conduct Rule 3.3(a)(2).
The respondent and the Disciplinary Commission have submitted for our
approval a Statement of Circumstances and Conditional Agreement for
Discipline in which the respondent admits to his misconduct and agrees to
be publicly reprimanded for it. The opinion that follows includes a
summary of the facts underlying the parties’ proferred resolution.
The respondent was admitted to practice law in this state of Indiana
on October 15, 1990, and practices in Indianapolis. On March 6, 1991, the
Indiana Bureau of Motor Vehicles determined that an individual (hereinafter
“the client”) was an habitual traffic violator, and his license was
suspended for ten years. On March 10, 1999, the client was driving a motor
vehicle in Shelbyville, Indiana when he was stopped for making an illegal u-
turn. On March 11, 1999, authorities charged the client with driving a
motor vehicle while his license was suspended, pursuant to IC 9-30-10-16,
in a criminal case docketed in the Shelby Superior Court 2. On October 4,
1999, the respondent entered his appearance as the client’s attorney. The
respondent never asked the client whether he had been driving a motor
vehicle on March 10, 1999, and, in discussing his available defenses with
the respondent, the client did not claim that he had not been driving that
day. The respondent considered information as to whether the client was
driving irrelevant as a matter of law because the respondent's defense was
based solely on the fact that the then-available certified BMV records
failed to show that a notice of suspension was sent to the client at his
proper address, as required by law.
On October 28, 1999, the respondent prepared and filed a verified
petition for probationary license for the client in Marion Circuit Court in
a separate case in which the respondent contended, inter alia, that, "The
Bureau of Motor Vehicles records reflect Petitioner's license is suspended
from March 6, 1991, through March 16, 2001, pursuant to Ind.Code 9-12-1-
4(c)," and that "Petitioner has had his driving privileges suspended under
this chapter for at least five (5) years." The statements were true at the
time the petition was filed. The petition also stated that the client "has
not violated the terms of his suspension by operating a vehicle[.] "
At a November 15, 1999 hearing on the petition, the presiding
commissioner asked the client, "Have you driven an automobile in the last
nine years, sir?" The client, under oath, answered "No." The respondent
attended the hearing as the client’s counsel and was present in the
courtroom during the exchange. Although the client’s answer to the
commissioner's question was untrue and the respondent had reason to believe
the client’s answer was untrue, the respondent did not take any steps to
convince the client to disclose the untruthfulness of the answer, and
continued to represent the client. In the criminal case, on January 21,
2000, the client, through the respondent, stipulated that he was driving a
motor vehicle on March 10, 1999. On July 24, 2000, the judge in the
criminal case found the client not guilty because the prosecution failed to
prove that the BMV sent its notice of suspension to the client at his
proper address.
Professional Conduct Rule 3.3(a)(2) provides that a lawyer shall not
fail to disclose a material fact to a tribunal where disclosure is
necessary to avoid assisting a criminal or fraudulent act against a
tribunal by a client. We find that the respondent violated that rule by
remaining silent and taking no action before the Marion Circuit Court when
he knew of credible evidence that his client had driven an automobile
within nine years of the hearing. We recognize the tension between the
duty to keep a client confidence under Prof.Cond.R. 1.6 and the obligation
to disclose under Prof.Cond.R. 3.3(a)(2). Matter of Scahill, 767 N.E.2d
976, 981 (Ind 2002). In some circumstances (such as where the lawyer’s
services will be used by the client in materially furthering a course of
criminal or fraudulent conduct),[1] resignation is the appropriate step.
Id. However, doing nothing, as the respondent did here, is not an
acceptable option.[2]
Having found misconduct, we now turn to the issue of appropriate
sanction for it. In this regard, the parties have stipulated to several
factors in mitigation of the respondent’s misconduct: he has not been
sanctioned by this Court for a violation of the Rules of Professional
Conduct prior to the present misconduct; he made full and complete
disclosure of the facts underlying this disciplinary matter and maintained
a cooperative attitude toward the disciplinary process; he enjoys a
reputation for integrity and truthfulness in the community and among his
peers in the bar; and with the exception of this act of misconduct, the
respondent has otherwise conducted himself in a professional manner as a
member of the Bar.
Similar violations of Prof.Cond.R. 3.3(a) have resulted in public
reprimand. Matter of Scahill, supra (public reprimand for violation of
Prof.Cond.R. 3.3(a)(2) and (4) where client had dissipated main marital
asset, a fact not later corrected in dissolution pleadings); Matter of
Thonert, 733 N.E.2d 932 (Ind. 2000) (public reprimand for failure to
disclose to appellate court adverse controlling authority known to the
lawyer). Pursuant to their agreed resolution, the Commission and the
respondent ask us to approve a public reprimand in this case. In light of
the agreement, the mitigating factors, and precedent, we find that the
sanction should be approved.
Accordingly, the respondent, Paul J. Page, is hereby reprimanded and
admonished for the misconduct set forth herein.
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.
-----------------------
[1] Comment to Prof.Cond.R. 1.6.
[2] See Comment to Prof.Cond.R. 3.3: “If perjured or false evidence had
been offered, the advocate’s proper course ordinarily is to remonstrate
with the client confidentially. If that fails, the advocate should
withdraw if that will remedy the situation. If withdrawal will not remedy
the situation or is impossible, the advocate should make the disclosure to
the court.”