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In re Keiffner

Supreme Court of Indiana

August 11, 2017

In the Matter of: Gillian DePrez Keiffner, Respondent.

         Attorney Discipline Action Hearing Officer Robert W. York.

          Attorneys for Respondent Kevin P. McGoff Margaret M. Christensen Melissa Buckley Minix Indianapolis, Indiana

          Attorneys for the Indiana Supreme Court Disciplinary Commission G. Michael Witte, Executive Director Aaron Johnson, Staff Attorney Indianapolis, Indiana

          PER CURIAM.

         The Indiana Supreme Court Disciplinary Commission filed a "Verified Complaint for Disciplinary Action" against Respondent Gillian DePrez Keiffner, charging her with attorney misconduct based on actions taken while prosecuting two criminal trials. Respondent's 2007 admission to this state's bar subjects her to this Court's disciplinary jurisdiction. See Ind. Const. art. 7, § 4.

         This matter is now before the Court on the report of the hearing officer appointed by this Court to hear evidence on the verified complaint and on the post-hearing briefing by the parties. Based on the record before us, a majority of the Court concludes that Respondent did not engage in attorney misconduct as charged. Accordingly, we enter judgment in Respondent's favor.

         Procedural Background and Facts

         At relevant times, Respondent served as a deputy prosecuting attorney in Marion County.[1] In 2012, Respondent represented the State during the trial of Bruce Ryan on charges of sexual misconduct with a minor. In 2013, Respondent represented the State during the trial of Brandon Brummett on charges of child molesting and sexual misconduct with a minor. Both trials resulted in convictions and, in the ensuing direct appeals, each defendant's convictions were challenged on grounds of prosecutorial misconduct. Based on the appellate records that were before us, and applying the well-settled standards for reviewing such claims in a criminal setting, we concluded that prosecutorial misconduct indeed had occurred in each trial. We reversed Brummett's convictions, summarily affirming the Court of Appeals' conclusion that the cumulative effect of several of the challenged actions by Respondent and her co-counsel amounted to fundamental error. Brummett v. State, 10 N.E.3d 78 (Ind.Ct.App. 2014), aff'd on reh'g, 21 N.E.3d 840, summarily aff'd in relevant part on transfer, 24 N.E.3d 965 (Ind. 2015). We affirmed Ryan's convictions after concluding the misconduct did not rise to the level of fundamental error. Ryan v. State, 9 N.E.3d 663 (Ind. 2014).

         The Commission thereafter charged Respondent with violating Indiana Professional Conduct Rule 3.4(e)[2] during the Ryan and Brummett trials and Rule 8.4(d)[3] during the Brummett trial. Following a hearing, the hearing officer filed his report to this Court on February 10, 2017, concluding the Commission had not met its burden of proving that Respondent violated the rules as charged.

         Discussion

         The Commission has petitioned this Court to review the hearing officer's findings and conclusions. The Commission carries the burden of proof to demonstrate attorney misconduct by clear and convincing evidence. See Ind. Admission and Discipline Rule 23(14)(i) (2016). While the review process in disciplinary cases involves a de novo examination of all matters presented to the Court, the hearing officer's findings nevertheless receive emphasis due to the unique opportunity for direct observation of witnesses. See Matter of Brizzi, 962 N.E.2d 1240, 1244 (Ind. 2012).

         The hearing officer relied heavily on our decision in Matter of Smith, 60 N.E.3d 1034 (Ind. 2016), which we issued after the instant case was charged and tried but before the hearing officer issued his report. Like the instant case, Smith involved a deputy prosecutor charged with professional misconduct in the wake of an appellate reversal of a defendant's conviction on grounds that included prosecutorial misconduct. Also like the instant case, the Commission's prosecution of the disciplinary action in Smith was structured largely around the notion that a criminal appellate finding of prosecutorial misconduct was dispositive of the question of professional misconduct in disciplinary proceedings. We rejected this notion in Smith and we do so again here:

"It is the exclusive province of this Court to regulate professional legal activity." Matter of Mitthower, 693 N.E.2d 555, 558 (Ind. 1998). While appellate claims of prosecutorial misconduct and disciplinary allegations of Rule 8.4(d) violations may share some similarities, the analyses are not exactly the same, nor are the parties and interests at stake in the proceedings the same. A criminal appeal examines the propriety of a defendant's conviction, not whether an attorney's conduct merits professional discipline. Respondent was not a party to the criminal appeal and did not have an opportunity prior to the instant proceedings to defend his own professional conduct. Moreover, disciplinary proceedings afford the opportunity for evidentiary development beyond the cold record available to the Court of Appeals in a criminal appeal. We have previously recognized that a written trial transcript "presents only a ...

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