Monday, November 11, 2019
The Indiana Supreme Court entered judgment in favor of the accused attorney in a bar discipline matter.
The hearing officer concluded the Commission failed to meet its burden of proving that Respondent committed any professional misconduct, and the Commission has not filed a petition for review.
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It may be more than a month before the disciplinary complaint leveled at former Howard County Prosecutor James Fleming is resolved, but statistics show the fact the complaint made its way before a special hearing officer is unusual in and of itself.
Last month a hearing convened in the Howard County Courthouse to hear the case relating to multiple alleged violations of professional conduct by Fleming. Those allegations involved what the Indiana Supreme Court Disciplinary Commission believed to be illegal witness payments and inducements Fleming made to the star witness in multiple trials in 2010, which related to a gang-related murder. The hearing concluded with the hearing officer, Robert Reiling Jr., telling the state, “I don’t think you’ve made a case.” Whatever the final findings of the state high court, the case, statistically, is already something of an anomaly.
Each year the Indiana Supreme Court compiles statistics relating to disciplinary complaints filed against judges and attorneys alike. The most recent batch of these statistics, which detail how many complaints are filed, how many are dismissed, and how many result in various actions by the Supreme Court, show that most of those complaints are dismissed summarily.
According to the court’s 2017-2018 annual report, 1,411 were complaints were submitted to the disciplinary commission in the 2017 through 2018 reporting period. Those complaints fuel the primary mission of the commission, which is responsible for investigating attorney misconduct and prosecuting lawyer discipline proceedings. Most of this work, however, is started via complaints submitted to the commission. As noted in the most recent report, the agency is “primarily reactive.”
Of those 1,411 complaints, 90 percent, or 1,267 complaints, were dismissed summarily with “no valid issue of misconduct” being present.
In total, 144 of the remaining complaints resulted in investigations by the commission, as was the case with the complaint filed against Fleming.
The 144 complaints that resulted in investigations were further whittled down, with 75 being dismissed once the commission had investigated them. Of those, 13 resulted in warning or cautionary letters being sent out, and another 42 were “sent back” for not relating to a commission matter or for having no attorney listed or ineligible. Others are referred to other states or even referred to local bar associations for further actions.
By the time the commission went through its investigation process for complaints submitted during the last reporting period, only 25 of the 1,411 complaints resulted in charges being filed by the commission. Verified complaints, when filed with the Indiana Supreme Court, function like probable cause affidavits filed in criminal cases. They allege the wrongdoing and apply it to violations of the Indiana Rules of Professional Conduct.
The case against Fleming is counted among that small percentage of verified complaints. Just 1.77 percent of all complaints filed to the disciplinary commission amount to the filing of verified complaints.
These complaints either result in an arrangement, or plea, between the commission and the attorney in question or can go as far as a hearing before an Indiana Supreme Court-appointed hearing officer, as Fleming’s did.
During those hearings, a hearing officer submits his findings to the Supreme Court, and then the judges on that court make a final finding. If the allegations are found to be credible, the Supreme Court can dole out suspensions, probationary periods, or even disbarment.
In Fleming’s case, the state requested the ability to submit a written argument but asked for a transcript of the hearing’s proceedings. Once that transcript is completed and delivered, the commission has 30 days to submit its closing argument.