|FOR THE RESPONDENT |FOR THE INDIANA SUPREME COURT |
| |DISCIPINARY COMMISSION |
| | |
|Joseph C. Lewis, Jr. |Donald R. Lundberg, Executive |
|Indianapolis, IN 46204 |Secretary |
| |Seth T. Pruden, Staff Attorney |
| |115 West Washington Street, Suite 1165|
| |Indianapolis, IN 46204 |
IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) CASE NO. 49S00-9711-DI-630
AARON E. HAITH )
DISCIPLINARY ACTION
February 28, 2001
Per Curiam
Lawyer Aaron E. Haith was convicted twice of operating a motor
vehicle while intoxicated and convicted once of operating a vehicle with a
blood alcohol content of at least .10 percent. Today we find that, by
virtue of the acts underlying those convictions, he engaged in criminal
acts reflecting adversely on his fitness as a lawyer in violation of the
Rules of Professional Conduct for Attorneys at Law.
This attorney disciplinary case is now before us for final resolution
upon the duly-appointed hearing officer’s findings of fact and conclusions
of law. The respondent, pursuant to Ind.Admission and Discipline Rule
23(15), has petitioned this Court for review of the hearing officer’s
findings and conclusions. Because of the respondent’s petition, our
review of this matter is de novo in nature, and will involve a review of
the entire record presented. Matter of Warrum, 724 N.E.2d 1097 (Ind.
2000).
We now find that on June 25, 1985, the respondent was convicted
of operating a vehicle while intoxicated (OWI) in Marion Municipal Court.
The incident leading to that conviction involved a motor vehicle accident
that resulted in personal injury. On September 17, 1991, the respondent
was convicted of operating a vehicle with .10% or more by weight of alcohol
in his blood, a class C misdemeanor, in Marion Municipal Court. On
September 29, 1995, the respondent was convicted of OWI, a class A
misdemeanor, in Marion Municipal Court. Again, the basis for that
conviction was a motor vehicle accident resulting in personal injury.
After each conviction, the respondent successfully completed his sentencing
requirements, including terms of probation, to the extent ordered. The
sentence for the 1991 offense included mandatory alcohol counseling. The
1995 sentence included, as terms of probation, alcohol evaluation and
treatment, if necessary. To satisfy those terms, the respondent obtained
short-term private substance abuse counseling. The counselor observed the
respondent on six occasions between January and July 1996, and concluded
that the respondent had an alcohol abuse problem and that he met the
diagnostic criteria for alcohol dependency.
The respondent re-initiated contact with the counselor in January of
1999. The counselor’s most recent professional opinion is that the
respondent and the community will be best served by the respondent’s
abstinence from alcohol, continued professional endeavors, and aggressive
outpatient therapy coupled with community-based mutual self-help
participation. At hearing, the Commission’s expert witness, a medical
doctor specializing in addictions, testified that he concurred with the
assessment that the respondent is alcohol dependent. The hearing officer
found that the respondent is alcohol dependent. The respondent disputes
that finding.
The hearing officer concluded that the respondent violated
Ind.Professional Conduct Rule 8.4(b) by committing the criminal acts of
operating a vehicle while intoxicated and operating a vehicle with .10
percent or more by weight of alcohol in his blood. According to the
hearing officer, these acts reflected adversely on the respondent’s fitness
as a lawyer. The hearing officer also concluded that the Commission
failed to demonstrate by clear and convincing evidence that the respondent
violated Prof.Cond.R. 8.4(d), which provides that it is professional
misconduct to engage in conduct that is prejudicial to the administration
of justice.
In his petition for review of the hearing officer’s findings, the
respondent argues that his convictions of driving while intoxicated or with
illegal levels of alcohol in his blood do not reflect adversely on his
fitness as a lawyer. His misconduct, he contends, must be distinguished
from this Court’s prior decisions finding Prof.Cond.R. 8.4(b) violations
for convictions of alcohol-related motor vehicle offenses because the acts
at issue in prior cases included attendant misconduct such as failures to
abide by courts’ orders of probation, the commission of other acts
violative of the Rules of Professional Conduct, or offenses committed by
lawyers responsible for enforcement of this state’s laws. To support his
argument, the respondent relies on Matter of Oliver, 493 N.E.2d 1237 (Ind.
1986) (lawyer who was serving as special prosecutor found to have committed
crime involving “moral turpitude” in violation of Code of Professional
Responsibility for conviction of OWI), Matter of Martenet, 674 N.E.2d 549
(Ind. 1996) (violation of Prof.Cond.R. 8.4(b) for three convictions of OWI,
the last occurring while the lawyer’s license was suspended), Matter of
Welling, 715 N.E.2d 377 (Ind. 1999) (two OWI convictions and conviction of
intimidation in violation of Prof.Cond.R. 8.4(b)), and Matter of Coleman,
569 N.E.2d 631 (Ind. 1991) (Prof.Cond.R. 8.4(b) violation for three OWI
convictions, failure to appear at hearing after release on bond, use of
client’s funds without authorization). The respondent contends that his
three convictions, standing alone and without some subsequent violation of
terms of probation, do not reflect adversely on his fitness as a lawyer.
We disagree. Lawyers are professionally bound to comply with and
uphold the law. Ind.Admission and Discipline Rule 22. A pattern of
repeated offenses, even ones of minor significance when considered
separately, can indicate an indifference to legal obligation. Comment to
Prof.Cond.R. 8.4. A lawyer’s multiple convictions for OWI or similar
offenses may indicate a willingness to ignore the law and may damage the
public’s perception of the legal profession. Welling, 715 N.E.2d at 378.
Such conduct also implicates a lawyer’s fitness as one who can be trusted
to keep his client’s secrets, give effective legal advice, and fulfill his
obligations to the courts. Martenet, 674 N.E.2d at 550. Thus, a lawyer’s
commission of OWI and similar offenses, even standing alone with no
attendant misconduct, have been found to violate Prof.Cond.R. 8.4(b).
Matter of Jones, 727 N.E.2d 711 (Ind. 2000) (three OWI convictions and a
fourth conviction withheld on terms of probation). Further, even
considered separately, the respondent’s offenses are not minor, given that
two of the three involved personal injury. Accordingly, we find that the
respondent violated Prof.Cond.R. 8.4(b). We adopt the hearing officer’s
finding with respect to the Prof.Cond.R. 8.4(d) charge.
Having found misconduct, we now turn to the issue of proper sanction.
Relevant to this determination is the hearing officer’s identification of
several aggravating factors. Among these are the respondent’s failure to
abstain from the use of alcohol or to acknowledge his alcohol dependency
and his failure voluntarily to seek long-term treatment. In mitigation,
the hearing officer noted that the respondent, prior to the present action,
has practiced law for 20 years with no prior disciplinary history, that he
completed his criminal probation successfully, and that he generally enjoys
a good reputation in the legal community. The hearing officer recommended
that the respondent be suspended from the practice of law for six (6)
months; that after serving one (1) month of that suspension, the respondent
be conditionally reinstated and placed on probation for two (2) years; and
that the respondent be fully reinstated to the practice of law upon
compliance with the terms and conditions of probation. According to the
hearing officer, those terms and conditions should include abstinence from
alcohol use, supervision by a monitor, reporting requirements, random
substance screenings, intensive out-patient treatment, and psychological
evaluation and treatment.
In recent cases involving similar misconduct, pursuant to agreed
resolutions this Court has imposed six month suspensions from the practice
of law, with some or all of that period stayed to terms of agreed probation
aimed at treating the respondents’ alcohol dependencies. See, e.g.,
Martenet, supra (six month suspension all stayed to aftercare), Welling,
supra (six month suspension with four months conditionally stayed), Jones,
supra (six month suspension conditionally stayed to period of suspension to
run concurently with criminal probation). We conclude that a similar
sanction is appropriate in this case as well; however, we find further that
the respondent’s failure to abstain from alcohol use and his reluctance to
admit his alcohol dependency warrant in this case a lengthier period of
suspension stayed to stringent aftercare provisions.
It is, therefore, ordered that the respondent, Aaron E. Haith, be
suspended from the practice of law in this state for a period of twelve
(12) months, effective immediately. That period of suspension is
conditionally stayed to a two (2) year period of probation. During that
period of probation, the respondent must:
• Remain free from alcohol use
• Be subject to the supervision of a monitor approved by the
Disciplinary Commission, with periodic meetings with the monitor who
will provide regular reports to the Disciplinary Commission
• Participate in an intensive out-patient treatment program approved by
the Disciplinary Commission
• Participate in psychological evaluation and treatment, as recommended
by the out-patient treatment program
• Participate in Alcoholics Anonymous or similar 12-step program
• Agree to be subject to and receive random alcohol and drug screenings
• Agree to a waiver of all assertions of confidentiality or privilege
associated with his monitor or treating health care providers
• Immediately report any noncompliance with the terms of this probation
to the Disciplinary Commission
• Pay all costs of compliance associated with the terms of probation.
Should the respondent violate any terms of his probation, he shall be
required to serve the twelve month period of suspension which was
originally stayed, at the conclusion of which he shall be required to
petition this Court should he desire reinstatement. Should he successfully
complete the two year period of probation, at the end of that period he
shall be fully reinstated to the practice of law in this state.
The Clerk of this Court is further directed to provide notice of this
order in accordance with Admis.Disc.R. 23(3)(d) 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.
SULLIVAN, BOEHM, and RUCKER, JJ., concur.
SHEPARD, C.J., and DICKSON, J., dissent from the sanction imposed, and
would impose a sanction calling for a period of executed suspension in
addition to a period of suspension stayed to aftercare provisions.
SHEPARD, Chief Justice, dissenting.
Several decades of research about healing chemically impaired people
suggests that therapy is typically unsuccessful when a dependent person
believes he is not. Formal analysis thus coincides with intuition: people
who think treatment is unnecessary are unlikely to work very hard at it.
The present case involves a lawyer who is generally well liked and
successful. But, he has had three criminal convictions for drunk driving
in twelve years. His own therapist, the Commission’s medical expert, and
our hearing officer have all concluded that he is alcohol dependent. He
insists he is not. He also maintains that the evidence does not reflect
adversely on his fitness to serve clients.
The Court says it disagrees on both points, but it sends this message
so softly it seems unlikely the respondent will hear it. A short period of
actual suspension seems more likely to lead to a successful result.