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In re Geller

Supreme Court of Indiana

May 16, 2014

IN THE MATTER OF: STEVEN B. GELLER, Respondent

Attorney Discipline Action Hearing Officer Thomas G. Burroughs.

ATTORNEY FOR THE RESPONDENT: Ralph L. Tambasco, Indianapolis, Indiana.

ATTORNEYS FOR THE INDIANA SUPREME COURT DISCIPLINARY COMMISSION: G. Michael Witte, Executive Secretary, Laura Iouse, Staff Attorney, John P. Higgins, Staff Attorney, Indianapolis, Indiana.

Dickson, C.J., and Rucker, David, and Rush JJ., concur. Massa, J., concurs in part, dissents in part regarding the discipline, and would impose a three-year suspension without automatic reinstatement.

OPINION

Page 644

Per Curiam

We find that Respondent, Steven B. Geller, engaged in multiple acts of attorney misconduct, including dishonesty to a court and to the Commission, improper communications with a judge and with a represented party, neglect of vulnerable clients, disorderly conduct in a judicial facility, and conduct prejudicial to the administration of justice. For this misconduct, we conclude that Respondent should be disbarred.

This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's " Verified Complaint for Disciplinary Action," and on the post-hearing briefing by the parties. Respondent's 1989 admission to this state's bar subjects him to this Court's disciplinary jurisdiction. See Ind. Const. art. 7, § 4.

Background

On June 1, 2011, the Commission filed a two-count " Verified Complaint for Disciplinary Action" against Respondent, which was amended on March 19, 2012, to add two additional counts. The Commission alleged violation of fourteen provisions of the Indiana Rules of Professional Conduct. The hearing officer filed his 105-page report on October 29, 2013, making proposed findings of fact and concluding that the Commission had met its burden of proving by clear and convincing evidence that Respondent violated twelve rule provisions, as described below.

The Hearing Officer's report

Count 1 - Juvenile court incidents. The Honorable Marilyn Moores is the chair of the Marion Superior Court's Juvenile Division (" Juvenile Court" ). In July or August 2007, Respondent arrived over an hour late for a hearing at the Juvenile Court. Respondent spoke with Judge

Page 645

Moores, who instructed him to call the court if he experienced unavoidable delays when scheduled to appear in the Juvenile Court.

Thereafter, Respondent represented parties in two cases that were both scheduled for hearing or conference in the Juvenile Court on September 11, 2007, at 10:00 a.m. Although Respondent also had a heavy calendar of hearings scheduled at the City-County Building at that same time, he took no action to eliminate the conflicts. On September 11, 2007, Respondent was running late but did not call the Juvenile Court to inform them of his delay. The cases were called before Respondent arrived.

When Respondent arrived at the Juvenile Court, Respondent saw R.D., a former client who believed that Respondent owed him money. Respondent walked past R.D., but he then heard his name called, turned, and bumped into R.D. Respondent pushed R.D. to the side and an altercation ensued. The assistant chief bailiff restrained Respondent. Two other bailiffs stepped between Respondent and R.D. Respondent leaned toward R.D., pointed his finger and said, " I'll f***ing kill you!" Over Respondent's resistance, the bailiffs moved Respondent to a different area. One bailiff then walked Respondent to his car. On the way, Respondent turned to a woman and said something to the effect of, " Did you see how I handled that a**hole?" When the woman responded, Respondent replied, " Shut up, bitch."

Respondent testified he was ashamed of his behavior and wrote Judge Moores a letter because he was sorry for his actions. The hearing officer found Respondent's apology was driven more by his desire to preserve his ability to practice law than by genuine remorse, noting that the letter was not written until December 20, 2007, the same date he responded to the grievance against him. The hearing officer also found that Respondent's testimony was conflicting and lacked credibility.

The hearing officer concluded that the Commission had not proven that Respondent violated Rule 3.2 or Rule 8.4(d) by a single incident of causing a delay in the two cases set for hearing or conference. The hearing officer also concluded that the Commission had not proven that he violated Rule 3.4(c) by failing to contact the Juvenile Court if he was going to be late, finding Judge Moores' instruction to do so was more in the nature of a suggestion than a directive.

The hearing officer concluded that the Commission had proven Respondent violated Rule 8.4(b) by committing the criminal act of disorderly conduct. The hearing officer also concluded that by engaging in an altercation at the Juvenile Court that required court personnel to intercede, preventing them from performing their court duties, Respondent engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d).

Count 2 - Actions in a divorce proceeding. " Husband" was represented in a divorce by attorney Gayle Mack. In December 2009, " Wife" retained Respondent. By that time, the court had issued a preliminary order granting joint legal custody of the couple's children to Husband and Wife. Under the parenting time guidelines, the allocation of major holidays between the parents is affected by who is designated the primary custodial parent. The preliminary order in this case, however, did not designate either parent as primary custodian.

Husband was scheduled to have the children for Easter. In the weeks before Easter, Wife left messages for Respondent several times seeking assistance in getting the children for Easter. A few days before

Page 646

Easter, Wife finally spoke with Respondent, who said he would try to contact the judge for a determination.

On April 1, 2010, the Thursday before Easter, Wife called Respondent again about the matter. The court was to be closed on Good Friday, April 2, 2010. On Thursday at 2:46 p.m., Respondent called Attorney Mack about the Easter custody issue for the first time. Attorney Mack planned to leave by 3:30 p.m. to go out of town. Attorney Mack told Respondent that the best she could do on such short notice would be to try to call her client about it. Attorney Mack left Husband a message on his voice mail. Respondent called Attorney Mack a few more times that afternoon, finally " announcing" he was going to call the court to talk to the judge. Believing that no judge would talk to Respondent under these circumstances, Attorney Mack responded sarcastically, " Well, good luck with that!"

At approximately 3:48 p.m., Respondent called Magistrate Victoria Ransberger's office. On his representation that he had Attorney Mack's permission to make the call without her, Magistrate Ransberger agreed to take the call. Respondent told her the court needed to identify the primary custodial parent for the purpose of controlled expenses. Magistrate Ransberger recognized this could make a difference in dividing custody for holidays and that this was why Respondent was calling. After looking at the file, Magistrate Ransberger decided Wife should be the primary custodial parent and consequently would have custody of the children for Easter. Magistrate Ransberger then made a jacket entry in the file stating: " Attorneys telephone for further court direction. The court having reviewed the prel. order, the CS wksheet and taking judicial notice of the file now finds that for the limited purpose of controlled expenses and for PT Guidelines, wife is designated the custodial parent." She wrote " attorneys" because Respondent represented Attorney Mack had given her permission for him to call. Respondent told Magistrate Ransberger he would relay this decision to Attorney Mack, but he did not reach her because she had left for the weekend.

The next day, when Husband arrived at his house at about 6:30 p.m., he found Wife and Respondent parked in his driveway. Respondent told Husband the judge had decided Wife was the primary custodial parent and that Husband should let the children go with Wife for the Easter weekend. Husband told Respondent that if anything had been determined by the judge, he would hear about it from his own attorney. Respondent tried to call Attorney Mack without success. The children remained with Husband for the weekend. Husband delivered a grievance against Respondent to the Commission the next business day, Monday, April 5, 2010.

On April 6, 2010, Respondent filed a motion for rule to show cause. In describing the events of April 1 and 2, 2010, he described Husband as " an emotionally deranged individual" who had threatened him when he came to Husband's home--allegations the hearing officer found to be unsupported. He further demanded that Attorney Mack be admonished for her " unprofessional behavior." On April 15, 2010, Respondent filed a grievance against Attorney Mack, which the Commission dismissed.

On April 29, 2010, Attorney Mack filed a verified petition for contempt citation, based in part on Respondent and Wife visiting Husband's home on April 2, 2010. The court scheduled an attorneys-only conference ...


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