In the Matter of Marjonie Diane Gabriel , 120 N.E.3d 189 ( 2019 )

FILED
Apr 11 2019, 2:49 pm
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Indiana Supreme Court
Supreme Court Case No. 18S-DI-6
In the Matter of
Marjonie D. Gabriel,
Respondent.
Decided: April 11, 2019
Attorney Discipline Action
Hearing Officer Robert C. Reiling
Per Curiam Opinion
Chief Justice Rush, and Justices David, Slaughter, and Goff concur.
Justice Massa not participating.
Per curiam.
We find that Respondent, Marjonie Gabriel, committed attorney
misconduct by knowingly disobeying court orders. For this misconduct,
we conclude that Respondent should be suspended for 90 days with
automatic reinstatement.
This matter is before the Court on the report of the hearing officer
appointed by this Court on the Indiana Supreme Court Disciplinary
Commission’s verified disciplinary complaint. Respondent’s 2009
admission to this state’s bar subjects her to this Court’s disciplinary
jurisdiction. See IND. CONST. art. 7, § 4.
Procedural Background and Facts
In 2008, Respondent left a prosecutorial position in California and
returned to Indiana to care for her father, who was in deteriorating health.
Respondent’s father also was in the midst of a separation from his wife
(Respondent’s estranged mother), who was sequestering and possibly
dissipating marital assets.1 That fall, Respondent’s father executed a
power-of-attorney appointing Respondent as his attorney-in-fact and
stating, in part, that Respondent “shall be entitled to reimbursement for all
reasonable expenses incurred on my behalf and . . . may also be entitled to
reasonable compensation for any services provided.”
In 2010, a guardianship was opened in Hamilton Superior Court and
Respondent was appointed as guardian of her father’s person. In 2012,
Respondent was appointed by the guardianship court as successor
guardian of her incapacitated father’s estate.
In the first several years following her return to Indiana, Respondent
expended considerable sums of her own savings on her father’s behalf.
During this time Respondent also experienced significant health issues of
1Respondent’s father petitioned for marital dissolution in late 2008, but those proceedings
ultimately were dismissed in 2012 due to concerns about Respondent’s father’s competency.
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her own, resulting in major medical bills and Respondent’s inability to
consistently maintain a law practice in Indiana. Respondent’s personal
savings and assets soon were depleted, and she alternately found herself
living temporarily with friends or out of her own vehicle.
At some point in late 2013 or early 2014, the guardianship received
about $40,000 in proceeds from the sale of Respondent’s parents’ marital
residence.2 Beginning around the same time, Respondent made dozens of
payments and withdrawals from the estate to herself without obtaining
the requisite court approval and in violation of a restraining order that
had been issued by the guardianship court. During that period,
Respondent also failed to file required accountings and failed to comply
with several court orders to do so. In early 2016 the guardianship court
held Respondent in contempt, appointed a successor guardian, and again
ordered Respondent to provide an accounting. Respondent did not do so
and was held in contempt again in November 2016. Meanwhile,
Respondent’s father passed away in September 2016.
The Commission charged Respondent with violating Indiana
Professional Conduct Rule 3.4(c) based on her knowing disobedience of
the guardianship court’s orders. Respondent admitted, and the hearing
officer found, that Respondent violated this rule.
The Commission also charged Respondent with violating Rule 8.4(b),
based on the Commission’s allegations that Respondent’s actions
amounted to criminal conversion and/or exploitation of an endangered
adult. The hearing officer concluded that the Commission had failed to
sustain its burden of proving this charge.
Discussion and Discipline
The Commission has petitioned this Court to review the hearing
officer’s findings and conclusions that the Commission failed to prove a
2By this time Respondent’s mother had been residing out-of-state for several years and
Respondent’s father was residing in an assisted living facility.
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violation of Rule 8.4(b). The Commission carries the burden of proof to
demonstrate attorney misconduct by clear and convincing evidence. See
Ind. Admission and Discipline Rule 23(14)(g)(1). 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 Campanella, 56 N.E.3d 631, 633 (Ind. 2016).
The crime of conversion is committed when a person “knowingly or
intentionally exerts unauthorized control over property of another
person[.]” I.C. § 35-43-4-3(a). The hearing officer found, among other
things, that even assuming Respondent’s exercise of control over
guardianship funds was unauthorized, Respondent reasonably believed
under the circumstances that her actions were authorized. In so finding,
the hearing officer expressly credited Respondent’s own testimony and
evidence in support, as well as relevant testimony from the judge who
had presided over the guardianship matter. (HO’s Report at 10-12, 16).
The Commission’s brief in support of its petition for review points to
contrary evidence, perhaps most notably that the proceeds from the sale
of the marital residence were subject to a restraining order. However,
keeping in mind the Commission’s burden of proof and the emphasis we
afford factual findings arising from the hearing officer’s opportunity to
observe witnesses directly and adjudge their credibility, we find sufficient
support in this record for the finding that Respondent reasonably believed
her actions were authorized. And from this finding we conclude, as did
the hearing officer, that the Commission failed to prove Respondent acted
with the requisite mens rea to support a finding of criminal conversion. See
JET Credit Union v. Loudermilk, 879 N.E.2d 594, 597-98 & n.5 (Ind. Ct. App.
2008); see also Whitlock v. Brown, 596 F.3d 406, 412-13 (7th Cir. 2010).
As relevant here, criminal exploitation is committed when a person
“recklessly, knowingly, or intentionally exerts unauthorized use of . . . the
property of . . . an endangered adult . . . for the person’s own profit or
advantage[.]” I.C. § 35-46-1-12(a). An “endangered adult” is defined by
several conjunctive elements, one of which is that the person is “harmed
or threatened with harm as a result of . . . exploitation of the individual’s
personal services or property.” I.C. § 12-10-3-2(a). Among other things, the
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hearing officer found that Respondent’s conduct was not done for her
own profit or advantage because she used the guardianship funds at issue
as partial reimbursement for expenses she had advanced and liabilities
she had incurred to provide care for her father. The hearing officer further
found that Respondent’s father suffered no actual harm from
Respondent’s conduct and, under the particular circumstances present
here, no potential harm. (HO’s Report at 14-15). Again, although the
Commission points to contrary evidence, we find sufficient support in the
record for the hearing officer’s findings and conclude, as did the hearing
officer, that the Commission failed to sustain its burden of proving that
Respondent committed criminal exploitation.
Because the Commission failed to establish that Respondent committed
criminal conversion or exploitation, we find in favor of Respondent on the
Rule 8.4(b) charge. We also find that Respondent violated Rule 3.4(c) as
charged and admitted, and we turn now to the matter of sanction.
Respondent’s failings in this case were not insignificant. She repeatedly
failed to comply with court orders and mismanaged guardianship funds.
But unlike cases such as Matter of Emmons, 68 N.E.3d 1068 (Ind. 2017),
upon which the Commission heavily relies in its sanction analysis,
Respondent’s conduct was not criminal in nature. Also unlike Emmons,
Respondent’s misuse of guardianship funds was not intended to inure to
Respondent’s benefit or the ward’s detriment, nor did it actually do so. To
the contrary, Respondent was striving under very difficult circumstances
to help her ailing father, and in the big picture her various expenditures of
personal and guardianship assets resulted in a net gain for her father.
None of this excuses her repeated disobedience of court orders (nor does
Respondent suggest it does), but we agree with the hearing officer that it
presents compelling mitigation in this case.
We find instructive Matter of Mercho, 78 N.E.3d 1101 (Ind. 2017),
another case in which the Commission alleged but failed to prove that an
attorney’s misuse of funds held in a fiduciary capacity was criminal in
nature. The sanction imposed in Mercho included 90 days of active
suspension. We also credit the hearing officer’s view, informed by his
firsthand observation of four days of witness testimony in this matter, that
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Respondent’s transgressions “trace[ ] to the unique, extremely difficult
circumstances” with which she was confronted and “do[ ] not otherwise
raise serious concerns about Respondent’s general character and fitness to
practice law.” (HO’s Report at 17).
With these considerations in mind, we conclude that a suspension of 90
days with automatic reinstatement is appropriate discipline for
Respondent’s misconduct.
Conclusion
Respondent already is under an order of suspension for dues
nonpayment. For Respondent’s professional misconduct, the Court
suspends Respondent for a period of 90 days, effective from the date of
this opinion. Respondent shall fulfill all the duties of a suspended attorney
under Admission and Discipline Rule 23(26). At the conclusion of the
period of suspension, provided there are no other suspensions then in
effect, Respondent shall be automatically reinstated to the practice of law,
subject to the conditions of Admission and Discipline Rule 23(18)(a). The
costs of this proceeding are assessed against Respondent, and the hearing
officer appointed in this case is discharged.
Rush, C.J., and David, Slaughter, and Goff, JJ., concur.
Massa, J., not participating.
ATTORNEYS FOR RESPONDENT
Peter J. Rusthoven
Jack L. Stark, Jr.
Indianapolis, Indiana
ATTORNEYS FOR INDIANA SUPREME COURT
DISCIPLINARY COMMISS ION
G. Michael Witte, Executive Director
Angie L. Ordway, Staff Attorney
Indianapolis, Indiana
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