ATTORNEY FOR THE RESPONDENT                            ATTORNEYS FOR THE INDIANA SUPREME COURT
Penny L. Carey                                         DISCIPLINARY COMMISSION
Fishers, Indiana                                       G. Michael Witte, Executive Secretary
                                                       Seth T. Pruden, Staff Attorney
                                                       John P. Higgins, Staff Attorney
                                                       Indianapolis, Indiana

______________________________________________________________________________

                                              In the
                              Indiana Supreme Court                           Jul 17 2013, 11:03 am

                              _________________________________

                                       No. 29S00-1201-DI-8

IN THE MATTER OF:

JOSEPH STORK SMITH,
                                                        Respondent.
                              _________________________________

                                    Attorney Discipline Action
                                 Hearing Officer Bruce Pennamped
                              _________________________________


                                            July 17, 2013

Per Curiam.


       We find that Respondent, Joseph Stork Smith, engaged in attorney misconduct by, among
other things, revealing confidential information relating to his representation of a former client
by publishing the information in a book for personal gain. 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." Respondent's 1976 admission to this state's bar subjects him
to this Court's disciplinary jurisdiction. See IND. CONST. art. 7, § 4.
                                          Background


       In 2010, Respondent authored a book purporting to be a true autobiographical account
of Respondent's relationship from roughly 1990 through 2010 with a former client ("FC"), who
was active in politics and at one point held a high-level job in the federal government. A sexual
relationship between FC and Respondent began around 1990 and continued until about 2001.
After their sexual relationship began, Respondent represented FC on various legal matters during
these years.   They maintained a personal relationship for a time thereafter.         Respondent's
professed motivation for writing the book was at least in part to recoup legal fees FC owed him
and money FC had obtained from him over the years.


       The Commission filed a "Verified Complaint for Disciplinary Action" against
Respondent on January 9, 2012, charging Respondent with violating these Rules of Professional
Conduct,1 which prohibit the following misconduct:
       1.7: Representing a client when there is a concurrent conflict of interest due to
           the lawyer's personal interests without obtaining the client's informed, written
           consent.

       1.9(c)(1): Using information relating to the representation to the disadvantage of
           a former client except as rules permit or require, or when information
           becomes generally known.

       1.9(c)(2): Revealing information relating to the representation of a former client
           except as rules permit or require.

       7.1: Making a false or misleading communication about the lawyer or the
           lawyer's services.

       8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or
           misrepresentation.

       8.4(e): Stating or implying an ability to influence improperly a government
           agency or official.

       The hearing officer filed his "Report of Findings of Fact, Conclusions of Law, without
Recommendation Concerning the Disposition of the Case or Discipline to be Imposed"

1
  Two additional rule violations were charged, which we conclude are not supported by sufficient
evidence.


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("Report") on February 28, 2013. Neither party filed a petition for review of the hearing officer's
report, although the Commission filed a brief on sanctions. When neither party challenges the
findings of the hearing officer, "we accept and adopt those findings but reserve final judgment as
to misconduct and sanction." Matter of Levy, 726 N.E.2d 1257, 1258 (Ind. 2000).            Having
considered the hearing officer's conclusions of law, we approve and adopt them as well.


                                           Discussion


       Improper disclosures in the book (Rule 1.9(c)(1) and (2)).        Respondent admits that
portions of the book contain information about events involving his representation of FC. The
book describes several criminal cases against FC in which Respondent represented FC.
Respondent revealed such details as his negotiations regarding bail and plea agreements,
conversations with a police detective, conversations with FC pertaining to the charges and her
incarceration, FC's mental and physical state, the source of funds for restitution, discussions
about his fees, and his personal thoughts about FC and about the matters. The book revealed that
Respondent provided his legal files pertaining to his representation of FC in criminal cases to
FC's husband at one point.


       Respondent also represented FC for the purpose of reviewing a divorce agreement. In the
book, Respondent revealed details of his conversations with FC, details about her marriage, and
his personal opinions and thoughts about FC's conduct.


       Respondent asserts that FC gave her consent to the disclosures of confidences when she
said, in response to his statement that he might write a book about her, "That is a great idea!
Write a book and make me famous!" The hearing officer concluded, however, that Respondent
has not demonstrated that FC gave the level of informed written consent necessary to permit
Respondent to disclose and publish the confidential information in the book.


       Respondent argues that the disclosures related to his representation of FC were permitted
under Prof. Cond. R. 1.6(b)(3), which states:




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       A lawyer may reveal information relating to the representation of a client to the
       extent the lawyer reasonably believes necessary . . . to prevent, mitigate or
       rectify substantial injury to the financial interests or property of another that is
       reasonably certain to result or has resulted from the client's commission of a
       crime or fraud in furtherance of which the client has used the lawyer's services.

(Emphasis added.)


       Respondent asserts that he believed FC had provided false information about her criminal
history and other matters to get her job with the federal government.          Respondent admits
however, that he has no evidence that any document was falsified by FC. The hearing officer
found no credible evidence that FC's employer relied on a false or misleading security
application. In addition, Respondent's disclosure of the alleged fraud years after FC left her
employment would not serve to "rectify" or "mitigate" the alleged fraud, and there was no
evidence that FC's employment caused substantial injury to the financial interests or property of
another or that FC used Respondent's services "in furtherance" of any fraud. The hearing officer
concluded that Respondent's purpose in seeking to market the book arose from Respondent's
desire to recoup financial losses allegedly caused by FC rather than to prevent, mitigate or rectify
her alleged fraud.


       Conflict of Interest (Prof. Cond. R. 1.7).        From 1990 through 2001, Respondent
represented FC on numerous legal matters and maintained a personal relationship with her.
During this period, Respondent advanced money, made personal loans, permitted his credit card
to be used, and provided personal assistance to FC. Although FC owed Respondent legal fees,
he continued to lend her additional funds and to provide additional services. Respondent grew
increasingly frustrated with FC over her lack of payments but continued to represent her in order
to increase his opportunity to be repaid. Respondent did not consider whether their personal
relationship, including FC's financial reliance on Respondent, would materially limit his ability
to represent her professionally. The hearing officer concluded that Respondent's actions created
a conflict between his own interests, the interests of third persons, and his duty of loyalty to his
then-client, FC.




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       Statements regarding improper influence (Prof. Cond. R. 8.4(e)). Respondent revealed in
the book that he had a conversation with a person at the Marion County Bail Commissioner's
Project regarding the bail of FC. The book stated that Respondent "dropped the names" of
several people, including a person he knew who used to work for the Project and a criminal court
judge who was a friend of his. The hearing officer concluded that Respondent's purpose in doing
so was to imply the ability to influence improperly the Bail Commissioner Project agent by
claiming some influence due to friendships with certain public officials and judges, in violation
of Prof. Cond. R. 8.4(e).


       False statements (Prof. Cond. R. 8.4(c)). In the book, Respondent stated that he had
conversations with a leader of a state political party during a time when FC was employed as a
fund-raiser by the party. Respondent stated, among other things, that the leader told him that FC
had lied regarding political contributions she had claimed to receive and that the leader hired FC
due to fear that she would make unfounded accusations against him. At the hearing in this case,
the leader denied making these statements to Respondent. The hearing officer found the leader's
testimony to be credible on this disputed issue of fact and concluded that Respondent knowingly
made false statements in the book in violation of Prof. Cond. R. 8.4(c).


       False claim regarding his qualifications (Prof. Cond. R. 7.1). Respondent stated in the
book that he is a "Certified Domestic Law Mediator." Alternative Dispute Resolution Rule 2.3
permits civil and domestic mediators to be "registered" with the Indiana Supreme Court
Commission for Continuing Legal Education, and mediators must meet certain requirements to
be registered. There is no "certification" provision. Respondent admitted he has never been
registered as a mediator and never acted as a mediator in his career. The hearing officer found
that Respondent violated Prof. Cond. R. 7.1 by making misleading statements about his
qualifications in the book.


       Aggravating and mitigating facts.      The hearing officer found the following facts in
aggravation: (1) Respondent improperly revealed information about a former client for self-
serving reasons; (2) Respondent engaged in multiple offenses; (3) Respondent testified falsely in
this disciplinary matter; (4) Respondent refused to acknowledge the wrongfulness of his conduct;



                                                5
(5) Respondent had been a lawyer for approximately 35 years when he published the book and
thus knew or should have known his obligations regarding safeguarding client information; and
(6) Respondent's conduct in revealing information about his former client's legal matters was not
an impulsive or sudden act; rather, it was planned and executed over an extended period of time.
The hearing officer found the following facts in mitigation:         (1) Respondent has no prior
discipline; and (2) Respondent ceased efforts to sell the book when the verified complaint was
served.


          Discipline. The American Bar Association's Standards for Imposing Lawyer Sanctions
(as amended in 1992) ("Standards") provide the following guidance misconduct warranting
disbarment:

          Disbarment is generally appropriate when a lawyer, with the intent to benefit
          the lawyer or another, knowingly reveals information relating to representation of
          a client not otherwise lawfully permitted to be disclosed, and this disclosure
          causes injury or potential injury to a client.

Standard 4.21 (emphasis added).

          Disbarment is generally appropriate when a lawyer knowingly engages in
          conduct that is a violation of a duty owed as a professional with the intent to
          obtain a benefit for the lawyer or another, and causes serious or potentially
          serious injury to a client, the public, or the legal system.

Standard 7.1 (emphasis added).



          In the book, Respondent revealed personal and sensitive information about FC that was

obtained in confidence as her attorney, and its revelation had the potential of causing her public

embarrassment and other injury, such as impairment of her employment opportunities.

Respondent's selfish motivation in deliberately attempting to reveal this confidential information

to a wide audience for monetary gain, his false statements in the book and in this disciplinary

matter, and his lack of any remorse lead us to conclude that that disbarment is appropriate for

Respondent's misconduct.


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                                           Conclusion


       The Court concludes that Respondent violated the Indiana Professional Conduct Rules
by, among other things, revealing confidential, sensitive information relating to his
representation of a former client by publishing it in a book for personal gain and by engaging in
conduct involving dishonesty or misrepresentation.


       For Respondent's professional misconduct, the Court disbars Respondent from the
practice of law in this state effective August 28, 2013. Respondent shall not undertake any new
legal matters between service of this order and the effective date of the disbarment, and
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.          The hearing officer
appointed in this case is discharged.


       The Clerk of this Court is directed to give notice of this opinion to the hearing officer, to
the parties or their respective attorneys, and to all other entities entitled to notice under
Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this opinion to the
Court's website, and Thomson Reuters is directed to publish a copy of this opinion in the bound
volumes of this Court's decisions.


All Justices concur.




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