FOR THE RESPONDENT
Ronald E. Elberger
FOR THE INDIANA SUPREME COURT DISCIPINARY COMMISSION
Donald R. Lundberg, Executive Secretary
Dennis K. McKinney, Staff Attorney
115 West Washington Street, Suite 1060
Indianapolis, IN 46204
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) CASE NO. 49S00-0110-DI-443
PAUL J. PAGE )
August 30, 2002
The respondent here, Paul J. Page, failed to take action while, in open
court with his client, the client testified that he had not driven a
car in nine years when in fact the client had, a statement the
respondent had reason to believe was untruthful. We find the respondent violated
Ind.Professional Conduct Rule 3.3(a)(2).
The respondent and the Disciplinary Commission have submitted for our approval a
of Circumstances and Conditional Agreement for Discipline in which the respondent admits to
his misconduct and agrees to be publicly reprimanded for it. The opinion
that follows includes a summary of the facts underlying the parties proferred resolution.
The respondent was admitted to practice law in this state of Indiana on
October 15, 1990, and practices in Indianapolis. On March 6, 1991, the
Indiana Bureau of Motor Vehicles determined that an individual (hereinafter the client) was
an habitual traffic violator, and his license was suspended for ten years.
On March 10, 1999, the client was driving a motor vehicle in Shelbyville,
Indiana when he was stopped for making an illegal u-turn. On March
11, 1999, authorities charged the client with driving a motor vehicle while his
license was suspended, pursuant to IC 9-30-10-16, in a criminal case docketed in
the Shelby Superior Court 2. On October 4, 1999, the respondent entered
his appearance as the clients attorney. The respondent never asked the client
whether he had been driving a motor vehicle on March 10, 1999, and,
in discussing his available defenses
with the respondent, the client did not claim
that he had not been driving that day. The respondent considered information
as to whether the client was driving irrelevant as a matter of law
because the respondent's defense was based solely on the fact that the then-available
certified BMV records failed to show that a notice of suspension was sent
to the client at his proper address, as required by law.
On October 28, 1999, the respondent prepared and filed a verified petition for
probationary license for the client in Marion Circuit Court in a separate case
in which the respondent contended,
inter alia, that, "The Bureau of Motor Vehicles
records reflect Petitioner's license is suspended from March 6, 1991, through March 16,
2001, pursuant to Ind.Code 9-12-1-4(c)," and that "Petitioner has had his driving privileges
suspended under this chapter for at least five (5) years." The statements
were true at the time the petition was filed. The petition also
stated that the client "has not violated the terms of his suspension by
operating a vehicle[.] "
At a November 15, 1999 hearing on the petition, the presiding commissioner asked
the client, "Have you driven an automobile in the last nine years, sir?"
The client, under oath, answered "No." The respondent attended the
hearing as the clients counsel and was present in the courtroom during the
exchange. Although the clients answer to the commissioner's question was untrue and
the respondent had reason to believe the clients answer was untrue, the respondent
did not take any steps to convince the client to disclose the untruthfulness
of the answer, and continued to represent the client. In the criminal
case, on January 21, 2000, the client, through the respondent, stipulated that he
was driving a motor vehicle on March 10, 1999. On July 24,
2000, the judge in the criminal case found the client not guilty because
the prosecution failed to prove that the BMV sent its notice of suspension
to the client at his proper address.
Professional Conduct Rule 3.3(a)(2) provides that a lawyer shall not fail to disclose
a material fact to a tribunal where disclosure is necessary to avoid assisting
a criminal or fraudulent act against a tribunal by a client. We
find that the respondent violated that rule by remaining silent and taking no
action before the Marion Circuit Court when he knew of credible evidence that
his client had driven an automobile within nine years of the hearing.
We recognize the tension between the duty to keep a client confidence under
Prof.Cond.R. 1.6 and the obligation to disclose under Prof.Cond.R. 3.3(a)(2).
Scahill, 767 N.E.2d 976, 981 (Ind 2002). In some circumstances (such as
where the lawyers services will be used by the client in materially furthering
a course of criminal or fraudulent conduct),
resignation is the appropriate step.
Id. However, doing nothing, as the respondent did here, is not an
Having found misconduct, we now turn to the issue of appropriate sanction for
it. In this regard, the parties have stipulated to several factors in
mitigation of the respondents misconduct: he has not been sanctioned by this Court
for a violation of the
Rules of Professional Conduct prior to the present
misconduct; he made full and complete disclosure of the facts underlying this disciplinary
matter and maintained a cooperative attitude toward the disciplinary process; he enjoys a
reputation for integrity and truthfulness in the community and among his peers in
the bar; and with the exception of this act of misconduct, the respondent
has otherwise conducted himself in a professional manner as a member of the
Similar violations of Prof.Cond.R. 3.3(a) have resulted in public reprimand.
Scahill, supra (public reprimand for violation of Prof.Cond.R. 3.3(a)(2) and (4) where client
had dissipated main marital asset, a fact not later corrected in dissolution pleadings);
Matter of Thonert, 733 N.E.2d 932 (Ind. 2000) (public reprimand for failure to
disclose to appellate court adverse controlling authority known to the lawyer). Pursuant
to their agreed resolution, the Commission and the respondent ask us to approve
a public reprimand in this case. In light of the agreement, the
mitigating factors, and precedent, we find that the sanction should be approved.
Accordingly, the respondent, Paul J. Page, is hereby reprimanded and admonished for the
misconduct set forth herein.
The Clerk of this Court is directed to provide notice of this order
in accordance with Admis.Disc.R. 23(3)(d) and to the hearing officer, 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
Costs of this proceeding are assessed against the respondent.
Comment to Prof.Cond.R. 1.6.
See Comment to Prof.Cond.R. 3.3: If perjured or false evidence had
been offered, the advocates proper course ordinarily is to remonstrate with the client
confidentially. If that fails, the advocate should withdraw if that will remedy
the situation. If withdrawal will not remedy the situation or is impossible,
the advocate should make the disclosure to the court.