In Re Barce

934 N.E.2d 732, 2010 Ind. LEXIS 564, 2010 WL 3855201

• Court: Indiana Supreme Court
• Decided: September 30, 2010
• Docket: 04S00-0904-DI-139
• Status: Published

Opinions

PUBLISHED ORDER FINDING MISCONDUCT AND IMPOSING DISCIPLINE

Upon review of the report of the hearing officer, the Honorable Thomas H. Busch, who was appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action," and the briefs of the parties, the Court finds that Respondent engaged in professional misconduct and imposes discipline on Respondent.

Facts: Respondent began serving as the part-time prosecuting attorney for Newton County in 1995. In 2005, Respondent elected to become a full-time prosecutor, which required that he close his private law practice. On August 5, 2005, Respondent signed an affidavit of inactivity, which placed his law license on inactive status. In the affidavit, Respondent stated under the penalties of perjury that he was not engaged in the practice of law in Indiana. Respondent signed substantially similar affidavits in 2006, 2007 and 2008. While claiming inactive status, Respondent paid a reduced annual registration fee.

In February 2009, defense counsel in a case Respondent was prosecuting pointed out that his law license was inactive. Promptly thereafter, Respondent arranged to place his license on active status, self-reported the violation to the Commission, and offered to pay the difference between the reduced fees he paid and the active status fees for the years he was on inactive status.

The hearing officer found no aggravating facts. The hearing officer found the following mitigating facts: (1) Respondent's misconduct was negligent rather than willful; (2) Respondent has no prior disciplinary record; (38) he had no dishonest or selfish motive; (4) he was cooperative with the Commission, (5) he has shown remorse for his misconduct; (6) his misconduct caused little actual injury; (7) he has a good reputation among lawyers, colleagues, and fellow prosecuting attorneys. The hearing officer noted that Respondent remained current with his continuing legal education requirements during the time his license was inactive.

Violations: The Court finds that Respondent violated these Indiana Professional Conduct Rules prohibiting the. following misconduct:

5.5(a): Engaging in the unauthorized practice of law.

84(d): Engaging in conduct prejudicial to the administration of justice.

Discipline: Respondent's noncompliance with the ethical obligation to have an active law license occurred while he was a public servant charged with enforcement of the law. The hearing office, however, found substantial mitigating cireum-stances, which are not challenged, and recommended that Respondent receive a public reprimand. Under these cireum-stances, the Court imposes a public reprimand for Respondent's professional misconduct.

The costs of this proceeding are assessed against Respondent. Those costs shall include the difference between the reduced fees Respondent paid and the active status fees for the years he was on inactive status. The hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court's website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court's decisions.

DICKSON, SULLIVAN, and BOEHM, JJ., concur.