In the Matter of: Everett E. Powell, II , 2017 Ind. LEXIS 465 ( 2017 )

RESPONDENT PRO SE ATTORNEYS FOR THE INDIANA SUPREME COURT
Everett E. Powell II DISCIPLINARY COMMISSION
Indianapolis, Indiana G. Michael Witte, Executive Director
Angie L. Ordway, Staff Attorney
Indianapolis, Indiana
______________________________________________________________________________
In the FILED
Indiana Supreme Court Jun 14 2017, 9:09 am
_________________________________ CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
No. 49S00-1504-DI-231
IN THE MATTER OF:
EVERETT E. POWELL II,
Respondent.
_________________________________
Attorney Discipline Action
Hearing Officer Robert W. York
_________________________________
June 14, 2017
Per Curiam.
We find that Respondent, Everett Powell, committed attorney misconduct by falsifying
evidence and knowingly making false statements to this Court and the Commission in an attempt
to be reinstated to the practice of law. 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 2004 admission to this state’s bar subjects him to this Court’s disciplinary
jurisdiction. See IND. CONST. art. 7, § 4.
Procedural Background and Facts
Assisted by another attorney, T.G. obtained a settlement of a personal injury action.
Because T.G. was in an abusive relationship and had a history of drug and alcohol abuse, that
attorney, with T.G.’s consent, established a special needs trust in 2004 to hold the settlement
proceeds and prevent rapid depletion by T.G. and others who may not be acting in her best
interests. Later in 2004, T.G., accompanied by her abusive partner, consulted Respondent about
getting access to the trust funds. Respondent agreed to take the case for a fee of one-third of the
trust corpus. After expending only minimal work, Respondent became successor trustee and
quickly disbursed from the trust about $30,000 to T.G. and about $15,000 to himself. For his
conduct in collecting an unreasonable fee, we suspended Respondent from the practice of law for
at least 120 days without automatic reinstatement, effective November 11, 2011. Matter of
Powell, 953 N.E.2d 1060 (Ind. 2011). Meanwhile, T.G.’s share was quickly dissipated on drugs
and expenditures to T.G.’s partner and his family, an outcome the special needs trust had been
designed to avoid.
Thereafter Respondent sought and was denied reinstatement. Those proceedings
included findings by a hearing officer1 that Respondent had, among other things, continued to
practice law during his suspension, failed to appropriately maintain his trust account, forged the
signatures of clients and another attorney, filed a false affidavit with this Court, and
misappropriated $5,000 from another client. The hearing officer also found that Respondent had
made no effort to make restitution to T.G. despite the financial ability to do so.
Only three days after we issued our order denying reinstatement, Respondent filed a
second petition for reinstatement. Those proceedings included findings by the hearing officer
that Respondent “has continued to engage in dishonesty, including filing two subsequent false or
misleading affidavits with the Supreme Court, noticing a deposition without a court reporter in
order to circumvent the hearing officer’s mandate, filing bankruptcy, failure to pay debts, yet
retaining the use of the property for which the debt was owed, filing meritless pleadings,
1
The hearing officer who heard Respondent’s reinstatement proceedings is not the same hearing officer
who heard the instant disciplinary matter.
engaging in verbally aggressive attitude and behavior to advance his position, [and] being
evasive and lacking candor when questioned during the hearing.” Comm’n Ex. 4 at 41. The
hearing officer also found that Respondent still had made no efforts toward restitution to T.G.
other than “last minute, token efforts, calculated to further his goal” of being reinstated. Id. at
32. We denied Respondent’s second reinstatement petition by order issued on March 6, 2014.
In that order we identified several concerns we had regarding Respondent’s conduct during the
reinstatement process, one of which was that Respondent “has only belatedly attempted to make
even nominal restitution to T.G.” Comm’n Ex. 5 at 2. Respondent then filed a “Request for
Clarification,” which we denied on July 11, 2014.
The events that ensued form the basis for the Commission’s verified complaint in this
matter. On July 21, 2014, Respondent drove to Iowa to meet with T.G. at her workplace.
Respondent told T.G. he needed her to sign a document stating that he had given her $15,000,
but informed T.G. that he had only $1,500 to give her. T.G. agreed to sign the document, and
Respondent assisted T.G. in executing, before a notary public, a document he had prepared
falsely stating that T.G. had received $15,000. Respondent then gave T.G. $1,500. Respondent
told T.G. she would not get in trouble for signing the document, but that if anyone from Indiana
called her she should not say anything.
T.G. soon talked with friends and acquaintances, realized she had been taken advantage
of, and contacted the Commission. Meanwhile, on August 26, 2014, Respondent (acting pro se)
filed a third petition for reinstatement. Simultaneously, Respondent sent a letter and updated
discovery to the Commission, falsely asserting in both that he had made full restitution of
$15,000 and submitting the false document to this effect that he had induced T.G. to sign.
On September 3, 2014, the Commission served its Notice of Trial Deposition of T.G. as
an out-of-state witness, scheduled for September 20, 2014. About a week prior to that
deposition, Respondent twice called T.G., attempting to determine what she had told the
Commission. T.G. did not answer his question. On September 15, 2014, Respondent (through
his newly-retained counsel) filed a motion to withdraw his third reinstatement petition, in which
he once again falsely represented that he had paid T.G. the full $15,000 restitution. The
Commission nonetheless proceeded to take the trial deposition of T.G. in order to secure her
testimony. Respondent’s counsel indicated he did not object to the deposition and elected not to
attend.
The Commission charged Respondent with violating Indiana Professional Conduct Rules
3.3(a)(1), 3.4(b), and 8.4(c). At the final hearing in this matter, T.G.’s videotaped deposition was
admitted over Respondent’s objection. Respondent made an unsworn opening statement
challenging T.G.’s credibility and claiming to have given her $15,000 in cash, but he expressly
declined to testify. The hearing officer filed his report to this Court on December 1, 2016,
concluding that Respondent violated the rules as charged and recommending that Respondent be
disbarred.
Discussion
Notwithstanding Respondent’s failure to comply with the deadlines set forth in Indiana
Admission and Discipline Rule 23(15), we granted his belated request for belated briefing, and
that briefing is now complete.
We review de novo all matters presented to the Court, including review not only of the
hearing officer’s report but also of the entire record tendered in the case. Matter of Thomas, 30
N.E.3d 704, 708 (Ind. 2015). The hearing officer’s findings receive emphasis due to the unique
opportunity for direct observation of witnesses, but this Court reserves the right to make the
ultimate determination. Id.
In his belated briefing to this Court, Respondent first argues that he did not violate Rule
3.3(a)(1), which in relevant part proscribes making a false statement of fact to a tribunal or
failing to correct a false statement of material fact previously made, because the false statement
contained in a pleading filed with this Court is attributable to Respondent’s counsel, and not to
Respondent himself. This argument is wholly unpersuasive under the circumstances. The
predicate fact contained within the pleading filed by counsel was supplied by Respondent, pro se
and under oath, in discovery provided to the Commission. Moreover, even were we somehow to
accept Respondent’s unsupported proposition that the falsehood was attributable to counsel, Rule
3.3(a)(1) also imposes a duty on attorneys to correct any false statement of material fact
previously made, something Respondent has never done. Indeed, Respondent’s position
throughout these proceedings has been that the representations he paid T.G. $15,000 were not
false.
Respondent next argues that he did not violate Rule 3.4(b), which in relevant part
prohibits an attorney from falsifying evidence. Respondent contends that falsifying a receipt is
not necessarily the same thing as falsifying evidence. See Br. in Support of Pet. for Review at 7
(“[A] lawyer who falsifies a billing statement . . . is not in violation of Prof. Cond. R. 3.4(b)
unless the document was created during a legal proceeding for the purpose of misleading the
opposing party or counsel”). However, the act of falsifying a document need not occur
contemporaneously with its tender as evidence, or even contemporaneously with the legal
proceeding in which it eventually is tendered, in order for a violation of Rule 3.4(b) to occur.
Here, Respondent created the false receipt shortly before initiating his third reinstatement
proceedings, with the intent to use it as evidence, and Respondent later proffered the receipt as
evidence and falsely averred it to be accurate during those proceedings. This conduct falls
squarely within the ambit of Rule 3.4(b).
Third, Respondent argues he did not violate Rule 8.4(c), which prohibits engaging in
conduct involving dishonesty, fraud, deceit, or misrepresentation. However, the entirety of
Respondent’s argument consists of an attack on T.G.’s credibility and the other evidence
introduced by the Commission, including records showing Respondent made ATM withdrawals
totaling $1,600 before driving to Iowa and that T.G. deposited $2,000 after meeting with
Respondent.2 The hearing officer expressly adjudged this evidence credible, and Respondent
expressly declined to testify or offer any evidence on his behalf. We find in our de novo review
ample support for the hearing officer’s findings in this regard.
2
T.G. explained this deposit included the $1,500 Respondent had given her plus $500 recently paid to her
by her employer.
Finally, Respondent argues the hearing officer erred in admitting T.G.’s videotaped
deposition into evidence, citing his due process rights as well as our trial and evidence rules.
The hearing officer addressed this issue at length, in both a pretrial order and in his final report,
and we agree with his analysis. Respondent and his then-counsel were given notice of T.G.’s
trial deposition and the opportunity to participate. Counsel indicated he had no objection to the
deposition and expressed his intention not to participate. Moreover, the admission of the
deposition in these proceedings was not precluded by either Trial Rule 32(A)(3) or Evidence
Rule 804(b)(1); contrary to Respondent’s arguments, both of these rules explicitly allow, under
the particular circumstances present here, for a deposition taken in one action to be used as
evidence in a subsequent action.
In sum, we find sufficient support for the hearing officer’s findings and conclusions with
respect to the admission of T.G.’s deposition and to each of the charged rule violations.
Accordingly, we find Respondent violated Professional Conduct Rules 3.3(a)(1), 3.4(b), and
8.4(c).
When we first disciplined Respondent in 2011 for collecting an unreasonable fee from
T.G., we cited Respondent’s inexperience and lack of prior discipline as factors in mitigation.
These factors derive much of their mitigating weight from the notion that in many instances an
attorney will be chastened by discipline for a first offense, adequately remedy his or her
professional shortcomings, and be unlikely to recidivate going forward. See generally
Admission and Discipline Rule 23(18); see also American Bar Association’s Annotated
Standards for Imposing Lawyer Sanctions 9.32(a), 9.32(f).3 Unfortunately, Respondent has
chosen a different road. Respondent’s reinstatement proceedings have brought to light numerous
additional uncharged instances of misconduct committed in the wake of our prior suspension
order, including forged signatures and false affidavits, and Respondent’s conduct throughout his
reinstatement proceedings has been marked by extraordinary degrees of evasiveness and
dishonesty. The grounds for the instant charges – Respondent’s elaborate scheme to convince
3
We hasten to add though that in some circumstances, such as those involving dishonesty or
misappropriation, inexperience generally will not be a mitigating factor because “[l]ittle experience in the
practice of law is necessary to appreciate such actual wrongdoing.” In re Cleland, 2 P.3d 700, 705 (Colo.
2000).
the Commission and this Court that he had made full restitution to T.G. when in fact he had not –
are but the culmination of a years-long endeavor to game the system. That endeavor ends today.
Conclusion
The Court concludes that Respondent, a suspended attorney, violated the Indiana Rules of
Professional Conduct by falsifying evidence and knowingly making false statements to this
Court and the Commission in an attempt to be reinstated to the practice of law.
For Respondent’s professional misconduct, the Court disbars Respondent from the
practice of law in this state effective immediately. Respondent shall fulfill all the duties of a
disbarred attorney under Admission and Discipline Rule 23(26). The costs of this proceeding are
assessed against Respondent, and the hearing officer appointed in this case is discharged.
All Justices concur.