By now, it is old news that Chief Justice Randall Shepard is retiring from the Supreme Court in March of 2012. This will be a time of many expressions of appreciation and admiration for his leadership as Chief Justice, which I join.  I had the privilege of serving as Executive Secretary of the Indiana Supreme Court Disciplinary Commission for eighteen years.  During my years in lawyer regulation, Chief Justice Shepard was Chief, or as he was often called within the Court family, “The CJ.”

 

When I was appointed, I saw myself as a rather unorthodox candidate for the position since my law practice background had been as Director of Litigation for the organization that is now Indiana Legal Services, Inc.—not necessarily viewed as the mainstream of the profession. I will always be grateful to the Chief for looking beyond conventional wisdom and focusing on my qualifications.  In my mind, I suppose that characterizes the Chief as much as anything: he is a judge not bound by conventionality who is always open to giving full consideration to the merits.

A Model of Civility

It will be hard to overestimate the Chief’s impact on Indiana’s courts and legal profession. One of many areas where he deserves great credit (not to downplay the importance of the entire Court in this respect) is the culture of collegiality he promoted within the Court.   Modeling by a state’s Supreme Court will inevitably set the civility bar for a state’s inferior courts and its practicing bar.  This is not something to be taken for granted in light of dysfunction in recent years within the high courts in Michigan and Wisconsin.

We are fortunate. Indiana is, on the whole, a remarkably civil place to practice law.  One does not find that everywhere, even in other states in the heartland.  Our bench and bar need to jealously protect that culture of civility.  It is fragile and can easily devolve to a race for the bottom.  When lawyers among us, notably lawyers from other states who do not share our same law practice culture, threaten our atmosphere of civility, judges and other lawyers alike have a duty communicate the clear message that we don’t practice law that way in Indiana.  This culture of civil lawyering is advanced every time lawyers and judges focus on procedural regularity and the merits of cases and don’t get distracted by personalities and presumed motivations.  I hope it will be part of the Chief’s legacy that we remain strongly committed to acting collectively to protect and improve that culture.

A Lawyer Discipline Retrospective

I would like to take the occasion of the Chief’s retirement announcement to look at lawyer discipline during his tenure on the Court. When most people think about the Supreme Court, they don’t usually focus on its professional discipline function.  It is a responsibility that is both constitutionally based.  Ind.Const. art. 7, § 4.  Based on close observation of and participation in lawyer discipline matters over the course of the Chief’s tenure, a few points stand out.

One lawyer discipline innovation during the Chief’s tenure was the occasional publication of per curiam opinions styled “In the Matter of Anonymous,” as a means of educating the bar about lawyer discipline sanctions that would ordinarily be hidden from view because the sanction was a private reprimand.  The first such opinion was Matter of Anonymous, 630 N.E.2d 212 (Ind. 1994), which dealt with a lawyer advertising question.  There have been twenty-six of them to date.  These opinions are especially helpful to the bar because they typically deal with ethical traps almost any lawyer could fall into, and they signal to the bar that the Court cares enough about an issue to go to the extra effort of writing an opinion.

Most lawyer discipline cases are now decided by fairly brief orders of discipline, rather than by full opinions. When the Court does write a full opinion, it is always per curiam and not attributable to a particular justice.  By contrast, prior to mid-2000, almost all lawyer discipline cases, even those submitted for resolution by stipulation, were decided by per curiam opinions.  Dissents on the merits are rare.  When there are dissents, they tend to be over the adequacy (too harsh or too lenient—usually too lenient) of the sanction ordered by the majority.

Twenty-Seven Years of Lawyer Discipline on the Shepard Court

We will see from the following analysis of dissents in lawyer discipline cases that on balance, the Chief generally falls on the side of preferring somewhat harsher discipline.

The first lawyer discipline cases decided when the Chief became a member of the Court on September 6, 1985, initially as an associate justice, were decided on the very day of his appointment. The matters were undoubtedly processed in advance of his appointment date and without his participation.  One of the cases decided that date, Matter of Watson, 482 N.E.2d 262 (Ind. 1985), was a per curiam opinion that referred to the Chief’s predecessor on the Court, Donald H. Hunter, as not participating in the matter.  The other lawyer discipline case decided on the Chief’s first day, again with Justice Hunter designated as not participating, was the conclusion of a very significant case in the annals of Indiana lawyer discipline, albeit with a whimper, not a bang.  On that date, in a brief order, the Court accepted the resignation of Phillip E. Gutman from the bar.  Matter of Gutman, 482 N.E.2d 456 (Ind. 1985).  Mr. Gutman had been the president pro tempore of the Indiana Senate and was convicted for taking bribes in public office.  See U.S. v. Gutman, 725 F.2d 417 (7th Cir. 1984).  Mr. Gutman later sought reinstatement to the bar, but the Court unanimously held that he had failed to meet his burden of proving by clear and convincing evidence that he was fit to be readmitted to practice.  Matter of Gutman, 599 N.E.2d 604 (Ind. 1992).  Mr. Gutman made a second effort to obtain reinstatement, but that too was denied in an unpublished order.

The first lawyer discipline opinion to which then-Justice Shepard dissented was Matter of Tew, 498 N.E.2d 387 (Ind. 1986).  The basis for his dissent was that the sanction, one that had been negotiated between the Disciplinary Commission and the respondent subject to the Court’s approval, was too lenient.  We will see that this was a premonition of his typical position when he was in dissent, but not nearly as often as Justice Dickson found himself dissenting for the same reason.

Upon his elevation to Chief, his first dissent was in Matter of Fox, 535 N.E.2d 1184 (Ind. 1989), a case that had been tried to a hearing officer.  In that case, he dissented to suggest that the sanction that the majority ordered, a suspension for one year, was too harsh and that a suspension of thirty days was more appropriate.  This was a somewhat unusual posture for the Chief especially as his tenure on the Court advanced.  Now-retired Justice Roger DeBruler also dissented in the same case, suggesting that a public reprimand was a more appropriate sanction.  We shall see that Justice DeBruler often found himself dissenting to urge greater leniency, a mantle that has been taken up by Justice Rucker.

A Chapter-by-Chapter Dissent Analysis

I have conducted an analysis of all lawyer discipline cases decided since the Chief went on the Court on September 6, 1985, focusing on the cases where there was at least one dissent—a total of 167 cases. A precise count of total discipline cases decided during this period is not readily available, but this number represents approximately a ten percent dissent rate. The results of that analysis are presented in a chart that accompanies this column.  What follows are some general observations from that data.

The Court has had different configurations and different patterns of dissent over the Chief’s tenure. When he first came on the Court, its composition for the brief interval between September 6, 1985 and January 5, 1986, in addition to Justice Shepard, included Richard Givan as Chief Justice and Associate Justices Dixon Prentice, Alfred Pivarnik and Roger DeBruler. There were no lawyer discipline dissents during that time period.

The Chief Begins and Justice Dickson Joins

The next configuration of the Court was from January 6, 1986 to December 13, 1990. Richard Givan was Chief for first part of that period and Justice Shepard was Chief for the rest.  The Associate Justices who served during that time were Justices Pivarnik, DeBruler, and Brent Dickson, who was appointed to succeed Justice Prentice and remains on the Court as the Chief’s longest-serving colleague.

As an interesting aside, the Court appointed Justice Prentice to serve as a hearing officer in several lawyer discipline cases after he retired. When I first joined the Commission, the Court was also using the services of Paul Jasper as a discipline hearing officer.  Justice Jasper had retired on March 31, 1953, after a short stay on the Court beginning January 3, 1949.  Both Justices Prentice and Jasper were extraordinary gentlemen.  It was astounding to me to appear before Justice Jasper as a hearing officer knowing that he had gone on the Indiana Supreme Court before I was born—and I was no spring chicken!

During this timeframe, certain dissent patterns were established that largely carried through into the future—with the notable exception of Justice Shepard. Justice DeBruler identified himself as a voice favoring greater leniency in discipline sanctions.  All of his dissents were because he thought the sanction was too harsh.  Justices Givan and Pivarnik, when they dissented, urged harsher sanctions or, in one case, urged a finding of misconduct when the majority concluded there was none.  Justice Dickson started his career of dissents displaying a pattern that has generally held throughout his tenure on the Court—mostly dissenting because he thought a sanction was too lenient, but occasionally remaining unconvinced that there had been proof of misconduct.  The Chief revealed an early, but uncharacteristic-in-the-long-run, pattern of dissenting because he thought a sanction was too harsh.  It would be another four years before he dissenting again (and for the last time) for that reason

Justice Krahulik’s Brief Time on the Court

Between December 14, 1990 and October 31, 1993, the membership of the Court changed when Jon Krahulik was appointed to replace Justice Pivarnik. In his brief tenure on the Court, Justice Krahulik did not dissent in any of the 11 lawyer discipline cases in which there was at least one dissent.  Justice Givan maintained his posture in favor of harsher discipline, as did Justice DeBruler in largely the opposite direction.  Justice Dickson  was consistent in asserting in the large majority of his dissents that the sanction was too lenient.  The Chief dissented in two cases, both because he thought the sanction was too lenient.  This shift to criticizing sanctions for their leniency would generally hold throughout the remainder of the Chief’s tenure on the Court.

Justice Sullivan Joins the Court

During the period between November 1, 1993 and January 3, 1995, Justice Frank Sullivan first joined the Court as Justice Krahulik’s replacement, and he remains on the Court today. Unlike his predecessor, Justice Sullivan made a mark on the Court as a dissenter in lawyer discipline cases, but we will see that his positions in dissent defy easy categorization.  Justices Dickson and Given remained consistent in thinking sanctions were too lenient.  And Justice DeBruler remained largely consistent in thinking mostly the opposite.  The Chief’s dissent pattern continued in the belief that sanctions were too lenient, with the exception of his final dissent during his time on the Court in which he urged greater leniency.

Justice Selby Replaces Justice Givan

The interval between January 3, 1995 and August 7, 1996, was Justice Myra Selby’s initial period of service on the Court, succeeding Justice Givan. Like Justice Krahulik, she was not a dissenter in any lawyer discipline case during her four years on the Court.  The views of Chief Justice Shepard and Justice Dickson favored harsher sanctions, with one exception in the case of Justice Dickson.  And Justice DeBruler favored leniency.  Justice Sullivan’s lone dissent in this short period was a plea for greater leniency.

Enter Justice Boehm

August 8, 1996 to November 18, 1999 was Justice Theodore Boehm’s first stretch on the Court as Justice DeBruler’s replacement. All of the dissents during this interval urged harsher sanctions, with Justice Dickson expressing that view far more frequently than the other justices.

During this period, the Court also decided (that may be the wrong word) a case called Matter of Fisher, 684 N.E.2d 197 (Ind. 1997).  This was a very unusual case.  Justice Selby had recused herself.  Of the four remaining justices, the Chief and Justice Sullivan thought Mr. Fisher should be suspended for some unspecified period of time, Justice Boehm thought he should be publicly reprimanded, and Justice Dickson thought he should be privately reprimanded.  All four justices thought Mr. Fisher should be disciplined in some way, but no specific disciplinary sanction commanded a majority of votes, so there ended up being no actual disciplinary sanction ordered—although the circumstances were discussed in a published per curiam opinion.

Justice Rucker Replaces Justice Selby

The longest lasting configuration of the Court during the Chief’s tenure was ushered in on November 19, 1999, when Justice Robert Rucker was appointed to replace Justice Selby, who like Justice Krahulik before her, retired to return to private practice. This configuration of the Chief Justice and Justices Dickson, Sullivan, Boehm and Rucker lasted until October 17, 2010.  During that interval, there was at least one dissent in 96 lawyer discipline cases—just under ten per year.  The dissent patterns during this time were largely reflective of the voting patterns of those justices in past lawyer discipline cases, and Justice Rucker began his pattern of generally opposing what he thought were unduly harsh sanctions.  The most nuanced dissenting posture during this period belonged to Justice Sullivan, who believed the sanction was too lenient in five cases, too harsh in two cases, and there was no proof of misconduct in three cases; and in one case he believed there was misconduct while the other four justices thought there was not.

In one case, Justice Dickson advanced his usual position opposing leniency but concurred nonetheless in order to create a majority—presumably in order to avoid a repeat of the Fisher situation—in a case in which there were two dissents on the grounds that the sanction was too harsh.

This was also the period when the Court decided the intriguing and controversial case of Matter of Wilkins, 777 N.E.2d 714 (Ind. 2002); 780 N.E.2d 842 (Rucker, J. recusing); 778 N.E.2d 1290 (granting interim stay of sanction); 782 N.E.2d 985 (Ind. 2003) (opinion on rehearing).   At the end of a tortuous procedural path, Justice Boehm changed his vote from a dissent in which he urged no discipline to a concurrence in reduced discipline in order to avoid the anomaly of Mr. Wilkins being disciplined more harshly than any of the justices would have wanted at that point.  He explained this unusual procedural posture in his concurrence at 782 N.E.2d at 987-88, indicating that he was changing his vote in order to avoid a result Lewis Carroll would love and to free parents everywhere from the burden of explaining it to their children.

Justice David Joins to Create the Current Court

On October 18, 2010, Justice Steven David replaced Justice Boehm. In this most recent interval during the Shepard years there have dissents in 12 lawyer discipline cases to date.  At least for starters, it appears that Justice David seems to be aligning with the Chief and Justice Dickson a an advocate for less leniency in lawyer discipline.  Justice Sullivan continued to express views in dissent that do not allow for easy pigeon-holing.  Justice Rucker was generally consistent with his historical position, advocating for greater leniency.

Putting It All Together

Aggregating all of this information, a fairly clear picture emerges. Of the 167 lawyer discipline cases decided during the Chief Justice’s tenure to which there was at least one dissent, the Chief dissented in forty-seven of them, forty-two because the sanction was too lenient and five because the sanction was too harsh.  Four of his five dissents on grounds of excessive harshness were filed within the Chief’s first four years on the Court.  The fifth dissent for that reason was after he had been on the Court for eight years.  He did not dissent in any case because the Disciplinary Commission had not proved misconduct.  This does not count the Fisher case, where it is difficult to label the position of the four justices who participated in the case as concurring or dissenting, but all of whom favored some sanction even though Mr. Fisher received none.

Justice Dickson was the most consistent, dissenting in eighty-seven cases because the sanction was too lenient, and only dissenting in four because it was too harsh. He dissented in another four cases because he did not believe the Commission had proved misconduct.

Of Justice Sullivan’s sixteen dissents, his views straddled the line between too harsh and too lenient. In eight dissents, he thought the sanction was either too lenient or that misconduct had been proved despite the majority’s view.  In eight other dissents, he thought the sanction was either too harsh or the Commission failed to prove misconduct.

Justices Rucker and Boehm were more predictably on the side of showing greater leniency. Justice Rucker dissented in eleven cases and Justice Boehm in eight cases because they thought the sanction was too harsh.  This was not to the exclusion of occasionally believing sanctions to be too lenient, which position Justices Rucker and Boehm each adopted in three cases (disregarding Fisher in Justice Boehm’s case).  Justice Rucker and Boehm each dissented in three cases arguing there was no misconduct.

As noted earlier, it is too early to have developed a clear sense of Justice David’s inclinations, but thus far they tend to align with the Chief’s and Justice Dickson’s. Historically, Justices Krahulik and Selby never dissented.  Justices Givan and Pivarnik, on the one hand, and Justice DeBruler, on the other, largely cancelled each other out, with Justice Givan dissenting in eleven cases and Justice Pivarnik in two cases because the sanction was too lenient versus Justice DeBruler’s thirteen dissents that sanctions were too harsh.  In addition, Justices Givan and Pivarnik each dissented in one case without stating reasons for the dissent, and also each of those two justices would have found misconduct in one case where the majority held to the contrary.  Justice DeBruler dissented in two cases because he found the sanction to be too lenient.

Looking To the Future

What does the future portend for lawyer discipline with the Chief Justice’s retirement? It is obviously foolhardy to speculate without even knowing who his replacement will be. That said, given the Chief’s fairly pronounced tradition of dissenting overwhelmingly because he perceived the sanction to be too lenient and never dissenting because the Commission failed to prove its case, it seems to me unlikely that the Chief’s successor will push the Court in the direction of greater harshness in meting out lawyer discipline. Might it push things in the other direction? Only time will tell.