Friday, October 18, 2013

Indiana Supreme Court Needs to Investigate Disciplinary Commission's Failure to Protect the Public From William Conour

Yesterday prominent Indiana personal injury attorney William Conour was given a ten year sentence by Federal District Judge Richard Young for bilking clients out of $6.7 million.  The Indianapolis Star reports:
William Conour
He was once considered a top lawyer, a man whom many knew as one of the best, if not the best, in his field.

Coupled with his millions of dollars in assets — including a 25-room Carmel mansion, a horse farm in Hamilton County, an apartment in Scotland, and expensive collections of wine and artwork — William Conour had it all.

But a different man walked into a federal courtroom in Indianapolis on Thursday. Conour, once one of Indiana’s top construction and accident injury lawyers, will spend the next 10 years in federal prison and will have to pay nearly $7 million in restitution to 36 former clients, a task that could prove to be impossible.

...

Prosecutors alleged that Conour, 66, bilked his clients out of $6.7 million in settlement money by not depositing the appropriate funds into client trust accounts.

He ran a Ponzi scheme for more than a decade, prosecutors said, spending money he won for clients’ legal settlements, then attempting to replace the missing funds with proceeds from subsequent settlements.
The fact is this did not need to happen.  Victims could have been spared.  Losses could have been mitigated.   According to the federal criminal court complaint (the precursor to the federal indictment) filed by FBI agent Douglas Kaspar, Conour's scheme to defraud clients stretched back to "at least"
Catherine A. Nestrick, Chair
Disciplinary Commission

December of 2000.  For years, victims of Conour's fraud filed grievances with the Disciplinary Commission asking that the Commission intervene.  The Commission could have conducted an investigation, could have done an interim suspension of Conour's license, could have at least filed charges.  Instead the Commission chose to do nothing to protect the public.

Details of the FBI's investigation into Conour's trust account are spelled out in Kaspar's affidavit accompanying the criminal complaint.  It was filed on April 27, 2013.  The DC knew long before the filing of the criminal complaint what the FBI had uncovered in its investigation.  Yet it was not until May 24, 2013 when Conour was ready to resign from the bar that the DC finally filed charges against Conour.

When questioned by the Indiana Lawyer about the failure to pursue Conour, Disciplinary Commission Executive Secretary Michael Witte pleaded a lack of resources:
...Witte said building a case against Conour took time, as evidenced by the federal court information alleging that Conour’s actions date to 1999. It took years for the FBI to make the case, he said, and the commission has far fewer resources.

...

“The most difficult part about this is that the rules of confidentiality sometimes hamstring us from being able to use outside resources and exchange information,” he said. “I can’t just pick up the phone and call the FBI and say, ‘We’ve got a case against a lawyer.’

Michael Witte
“The only thing we can do is utilize our own investigation resources to pursue our own independent investigation,” Witte said. That includes one full-time investigator and 12 staff attorneys who handle about 1,200 complaints per year.
Perhaps the Commission would have a lot more resources if Witte did not exercise such extremely poor judgment on which cases he has the Commission pursue.  During my 11 1/2 hour disciplinary hearing a couple months ago, I saw the Commission using at least six staff members, who had gathered boxes of evidence from a six year long estate case in which I was involved, all in an effort to prosecute me for the dastardly offense of unfairly criticizing a judge in private emails.

Which is the bigger offense, an attorney stealing millions from clients or an attorney criticizing a judge in an email?   Given where he devotes the Commission's limited resources, it is clear that Witte, who had been a judge for 25 years before being appointed Executive Secretary, believes that protecting his former colleagues from criticism should be the top priority of the Commission.

Trent McCain,
Commission Member
Unfortunately my case is only one example of Mr. Witte's misplaced priorities.  Recently attorney Thomas Martin Dixon (of Osceola, Indiana) was acquitted by the Indiana Supreme Court also for unfairly criticizing a judge in a recusal motion.  Having reviewed the Dixon file, it is apparent that the Commission devoted enormous resources into prosecuting him.  Another attorney David Wemhoff was charged with the same thing.  Just recently, a long-time Martinsville attorney, Joseph Barker, was suspended for referring to the mother of his client's child as an "illegal immigrant" in a letter to opposing counsel, which letter he also filed with the court. 

While the Indiana Supreme Court unanimously confirmed the recommendation of a 30 day suspension by the Barker's hearing officer, questions should still be raised whether the Commission should have devoted such resources in pursuing the case in the first place.  One would think that a priority should be placed on serious rule violations, violations where the attorney's conduct reflects a lack of ethics, especially when that unethical behavior threatens the public.  Yet those are not the priorities of the Commission under Witte.  Even being convicted of a felony involving dishonesty won't mean a disciplinary charge by the Commission.  Criticize a judge though and you very well may find yourself charged by the Commission with a disciplinary violation.

Witte, who is an appointee of former Chief Justice Randall Shepard, needs to be fired or at least ushered off to much needed retirement.  But the individual members of the Disciplinary Commission should also be held  responsible for the misplaced priorities of the Commission. They collectively have shown exceedingly poor judgment in their role on the Commission.   Attorneys and the general public needs to know who the members of the Disciplinary Commission members are and to demand they make the priorities of the Commission the pursuit of unethical attorneys who threaten the public:

Catherine A. Nestrick, Chair
Berry Plastics Corporation
Evansville

William Anthony Walker, Vice Chair
Attorney at Law
Gary

Nancy L. Cross, Secretary
Cross, Pennamped, Woolsey & Glazier, P.C.
Carmel
Andrielle M. Metzel, Treasurer
Benesch, Friedlander, Coplan & Aronoff LLP
Indianapolis
Maureen Grinsfelder
Fort Wayne


Trent A. McCain
McCain & White, PC
Merrillville

R. Anthony Prather
Barnes &Thornburg LLP
Indianapolis

Leanna K. Weissmann
Attorney at Law
Lawrenceburg

Kirk White
Bloomington

4 comments:

Unigov said...

The sole purpose of regulatory bodies is to protect those who are regulated.

Other examples:

Licensing boards for physicians, real estate, etc, are there to cover up wrongdoing. How many doctors lose their license each year ?

The county liquor boards exist to enforce a licensing system that is designed to reduce competition.

The NCAA exists to raise money for its members, while providing a false impression that someone's minding the store.

The SEC is a small and impotent organization that exists solely for appearance sake.

The FDIC waits until irreparable harm is done before closing banks.

Every industry and profession WANTS to be regulated, because it reduces competition while providing the means to escape scrutiny.

Paul K. Ogden said...

I hear where you're coming from, but no one is going to accuse the DC of protecting most attorneys. Perhaps protecting the major law firm attorneys from disciplinary actions (as evidenced my research which indicates that small firm attorneys and sole practitioners are the targets of 99% of the published disciplinary actions.) But protecting the bulk of the attorneys in the profession, the vast majority of which do not work in the big downtown Indianapolis law firms? Te DC absolutely does not do that.

While all judges are attorneys, don't for a second think they are on the same page in terms of the right of attorneys to criticize judges. You have as far as I can tell 100% of attorneys wanting the DC to respect their right to criticize judges. Frankly, while there is some opposition among judges to an attorneys right to criticize members of the bench, most judges realize that criticism is part of their job. But there still is a significant minority of judges who will go to the DC when they're criticized by an attorney and ask that charges be filed.

Unfortunately they have a very receptive person in Executive Secretary Michael Witte, a former 25 year county judge, who apparently believes the primary mission of the DC should be stopping judicial criticism by attorneys.

Cindy Giema said...

I want to see my previous submissions to you

Paul K. Ogden said...

Cindy, I have no idea why you're posting your comments under a completely unrelated article dealing with Broad Ripple, an article that's more than 2 1/2 years old.