Monday, March 24, 2014

Hearing Officer Recommends Public Reprimand in Strange Case Involving Long-Time Muncie Attorney Michael (Mick) Alexander

The Muncie Star-Press reports:
A Wayne County judge has recommended that the Indiana Supreme Court publicly reprimand — but not suspend from the practice of law— local attorney Michael J. Alexander.

Wayne Superior Court 3 Judge Darren Dolehanty — appointed hearing officer after a disciplinary complaint was filed against Alexander in January 2013 — issued his findings and recommendations to the state Supreme Court on Friday.

Dolehanty noted that the alleged misconduct — which Alexander largely admitted to at a Feb. 28 hearing — “happened several years ago,” adding that he had no reason to believe the Muncie attorney had committed additional rule violations in the years since.

The January 2013 complaint signed by Executive Director Michael Witte, accuses Alexander of in 2005 employing Bruce McLaren, an attorney who resigned from his position rather than face discipline from a 2003 conviction in federal court for which he served five years in prison.

The major thrust of the complaint though had to do with the Alexander's conduct during a 2003 personal injury case against Outback for allegedly serving a drunk customer who then hit Alexander's clients who were traveling on a motorcycle.  The patron had actually gone to another bar after being at Outback celebrating that restaurant's grand opening.

The key witness was an Outback employee who when deposed said that the customer was not visibly but later then changed her testimony after meeting with Alexander.  Alexander did not inform Outback's attorneys of the meeting with the employee or the changed testimony.  In 2003, Alexander's client won the jury trial but in 2006 the Indiana Supreme Court overturned the decision, pointing to Alexander's misconduct.  In an opinion written by Justice Theodore Boehm, the Court suggested that Alexander had committed disciplinary violations and recommended that the Disciplinary Commission take up the matter:
Notwithstanding our conclusion that Alexander's conduct is not grounds for relief from a judgment under Trial Rule 60(B), we conclude that his conduct warrants investigation by the Indiana Disciplinary Commission. Rule 3.3(a)(1) of the Indiana Rules of Professional Conduct provides that an attorney "shall not knowingly make a false statement of fact or law to a tribunal." The commentary explains that candor is necessary to preserve the integrity of the adjudicative process. Rule 4.1(a) provides that an attorney shall not "knowingly make a false statement of material fact or law to a third person" in the course of representing a client. The commentary to this Rule explains that misrepresentations include "partially true but misleading statements." Rule 8.4(d) provides that it is also misconduct for an attorney to engage in conduct "prejudicial to the administration of justice." We leave to the Disciplinary Committee to consider whether these facts are as they appear from this record and if so whether any charges are appropriate.
(Note:  It is not clear why Justice Boehm says that Alexander's conduct is not grounds for relief from judgment because in the next paragraph the Court concludes otherwise, reversing the trial court's failure to grant the motion asking for relief from judgment, vacating the judgement and ordering a new trial.)

Despite Justice Boehm's opinion suggesting referral to the Disciplinary Commission in 2006, it was not until January 2013 that the Commission charged Alexander with misconduct.  The disciplinary complaint focused on statements made by Alexander during closing argument and his failure to update discovery, and his failure to reveal prior conversations with the aforementioned key witness.

The passage of time points to a need for the Indiana Supreme Court to adopt statutes of limitations when it comes to pursuing disciplinary grievances and formal charges.  By the time the disciplinary complaint was filed against Alexander, the facts supporting misconduct were between 10 and 14 years old.  It is unfair to an attorney to have to defend against facts that are that old. On the other hand, if Alexander did commit substantial misconduct, the passage of time in the eyes of the Hearing Officer, and quite likely the Supreme Court, means a less severe punishment - public reprimand - is appropriate.  The Commission should not be able to decrease the penalty on an attorney for misconduct by sitting on potential charges.

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