In the Matter of: Joseph M. Johnson III , 74 N.E.3d 550 ( 2017 )

ATTORNEY FOR RESPONDENT ATTORNEYS FOR THE INDIANA SUPREME COURT
Donald R. Lundberg DISCIPLINARY COMMISSION
Indianapolis, Indiana G. Michael Witte, Executive Director
Angie Ordway, Staff Attorney
Indianapolis, Indiana
______________________________________________________________________________
In the FILED
Indiana Supreme Court May 17 2017, 10:15 am
_________________________________ CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
No. 01S00-1604-DI-188
IN THE MATTER OF:
JOSEPH M. JOHNSON III,
Respondent.
_________________________________
Attorney Discipline Action
Hearing Officer Robert C. Reiling, Jr.
_________________________________
May 17, 2017
Per Curiam.
We find that Respondent, Joseph M. Johnson III, committed attorney misconduct in
connection with his pattern of harassment of an ex-girlfriend. For this misconduct, we conclude
that Respondent should be suspended for at least one year without automatic reinstatement.
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 2003 admission to this state’s bar subjects him to this Court’s disciplinary
jurisdiction. See IND. CONST. art. 7, § 4.
Procedural Background and Facts
During most relevant times, Respondent was the chief public defender in Adams County.
He also was married. In 2010, Respondent had an affair with “Jane Doe” (“J.D.”) that ended
after several months.
In March 2014, Respondent ran into J.D., who was at the courthouse in connection with
her conviction for operating while intoxicated. A short time later, at Respondent’s behest J.D.
met him for dinner at a restaurant, and Respondent told J.D. that his wife was leaving him.
Thereafter, Respondent began persistently calling J.D. J.D. told Respondent she did not wish to
have a relationship with him and repeatedly told him to stop contacting her, to no avail. During
one of these calls, Respondent was crying and J.D. overheard Respondent shoot a gun several
times.
Respondent continued to call and text J.D. and contact her through Facebook.
Respondent also appeared uninvited at J.D.’s apartment, stood in the doorway and prevented J.D.
from closing the door, and refused to leave. The police were summoned and Respondent was
issued a No Trespass Order.
Respondent persisted in calling and texting J.D., and he additionally attempted to contact
J.D. through her roommate. J.D. continued to plead with Respondent to stop contacting her, still
to no avail. A police officer told Respondent to cease contacting J.D. and never to go to her
residence again. Respondent responded to J.D. by threatening to have her children taken from
her and to create trouble for J.D. through her probation officer.
At one point, Respondent sent an identical text message to J.D. five times in a single day,
and during the overnight hours of the following morning Respondent placed a hard copy of the
text outside J.D.’s front door. J.D. immediately reported this to the police. Later that day,
Respondent traveled to J.D.’s apartment, arriving at the same time J.D.’s children were dropped
off by the school bus. J.D. hurried her children inside. Respondent entered the building and
stood outside J.D.’s apartment. J.D. was terrified of these actions. A police officer confronted
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Respondent later that evening and demanded he cease all contact with J.D., once again to no
avail.
J.D. obtained a protective order against Respondent. When an officer served Respondent
with the order, Respondent responded by telling the officer that J.D. had violated her probation.
Respondent later made similar reports to J.D.’s probation officer. Attempting to leverage his
role as public defender, Respondent continued to contact J.D.’s probation officer to see if a
violation would be filed. J.D. admitted having a glass of wine at dinner with Respondent, and as
a consequence she received a 10-day sentence, suspended on condition she not violate probation
again.
The Indiana State Police (“ISP”) became involved, and Respondent was arrested and
charged with two misdemeanor counts of trespass and one felony count of making a false
statement. In October 2014, Respondent was found guilty of one count of trespass. He was
placed on informal probation, one condition of which was that Respondent could not contact J.D.
About one and a half months after Respondent’s conviction, Respondent phoned the
restaurant where J.D. worked. Later that day, Respondent saw “A.F.”, a friend of J.D. who
recently had been arrested for driving while suspended, at the courthouse. Respondent called
A.F. and lured her into a meeting at his law office, telling her to come in through the back door.
At the meeting Respondent inquired about where J.D. was living and whether she had a
boyfriend, and attempted to persuade A.F. to get J.D. to call him. A.F. left, and Respondent later
texted A.F. and asked that she keep their conversation secret.
Meanwhile, ISP was investigating Respondent for his ongoing stalking and harassment of
J.D. and violation of the protective order. Respondent called the state trooper who was
investigating the case, berating the trooper and threatening to contact the trooper’s superiors.
Although J.D. moved from her apartment, Respondent successfully tracked J.D. to her
new residence. Despite his criminal trespass conviction and the protective order, on multiple
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occasions in May 2015 Respondent drove by J.D.’s house, parked across the street, or slowed
down to stare at J.D.
During much of this time, Respondent suffered from a progression of mental illness –
including depression, manic episodes, and bipolar disorder – that the hearing officer found had a
nexus to some, but not all, of Respondent’s misconduct.
Discussion
The Commission alleged, and the hearing officer concluded following an evidentiary
hearing, that Respondent violated the following Indiana Rules of Professional Conduct:
8.4(b): Committing a criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness, or fitness as a lawyer.
8.4(d): Engaging in conduct prejudicial to the administration of justice.
8.4(e): Stating or implying an ability to influence improperly a government
agency or official.
Both parties have petitioned for review. While the parties’ briefs are directed largely
toward the question of sanction, we briefly address Respondent’s challenges to the hearing
officer’s findings of rule violations. Regarding Rule 8.4(b), Respondent attempts to argue that
his criminal conduct was limited to the particular acts during April 2014 that gave rise to his
conviction for trespass,1 and he contends those particular acts lack the rule’s requisite nexus to
his legal practice. In a somewhat similar vein, Respondent argues in reference to Rule 8.4(d)
that none of his actions impeded or changed the result of any proceeding, and he argues in
reference to Rule 8.4(e) that his threatened actions were not improper because J.D. in fact did
violate her probation by having a glass of wine at dinner with Respondent. These arguments are
1
In addition to the act of trespass for which Respondent was convicted, the Commission also alleged
Respondent violated Rule 8.4(b) by committing stalking, harassment, and invasion of privacy. The
hearing officer made no explicit findings or conclusions on these latter allegations. Because it does not
impact our analysis, we need not determine whether Respondent’s pattern of misconduct encompassed
criminal stalking, harassment, or invasion of privacy, and we therefore accept for argument’s sake
Respondent’s contention that his criminal acts were limited to trespass.
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wholly unavailing under the facts and circumstances of this case. Respondent’s trespass was not
an isolated event, but rather part and parcel of a pattern of related conduct involving J.D. that
spanned well over a year. Respondent’s position as chief public defender played an integral role,
both in the events serving as the factual predicate for his conviction and in numerous other
events composing his pattern of misconduct.2 Respondent succeeded in leveraging his position
to induce J.D.’s probation officer to file a violation against J.D., and his efforts in this regard
were not undertaken for the purpose of fulfilling his professional duties but rather to coerce J.D.
into talking with him. Respondent attempted to similarly leverage his position during his
interactions with police, albeit with less success. In sum, there is ample support in the record for
all three violations found by the hearing officer. Accordingly, we concur in the hearing officer’s
conclusions that Respondent violated Rules 8.4(b), 8.4(d), and 8.4(e).
Our analysis of appropriate discipline includes consideration of the nature of the
misconduct, the duties violated by the respondent, any resulting or potential harm, the
respondent’s state of mind, our duty to preserve the integrity of the profession, the risk to the
public should we allow the respondent to continue in practice, and matters in aggravation and
mitigation. See Matter of Keaton, 29 N.E.3d 103, 110 (Ind. 2015); Matter of Usher, 987 N.E.2d
1080, 1089-90 (Ind. 2013).
Misconduct of a similar nature prompted us to impose disbarment in Keaton and a
suspension of at least three years without automatic reinstatement in Usher. The nexus shown
between Respondent’s mental illness and his misconduct serves to distinguish the instant case
from Keaton and Usher, but only to a point. We agree with the hearing officer that Respondent’s
mental illness is a mitigating factor but does not excuse his misconduct. See Matter of
Montgomery, 2 N.E.3d 1261 (Ind. 2014); Matter of Transki, 948 N.E.2d 1181 (Ind. 2011). We
also agree with the hearing officer that, while some of Respondent’s actions can be traced to
manic episodes he was experiencing, other actions committed by Respondent as part of his long-
2
To cite just one illustrative example of the nexus between Respondent’s criminal conduct and his law
practice, immediately following the acts that served as the factual predicate for Respondent’s trespass
conviction, Respondent sent a series of text messages to J.D. stating that Respondent would be meeting
with J.D.’s probation officer, that the judge presiding over J.D.’s criminal case (who Respondent
described as “my old buddy”) likely would punish a probation violation harshly, that J.D. risked having
her children taken from her, and that “it is in my power to make your life hell.”
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running pattern of misconduct involving J.D. occurred during periods when Respondent was
receiving treatment and the symptoms of his mental illness had somewhat abated.
Respondent urges us not to impose any period of active suspension, while the
Commission requests a suspension of at least two years without automatic reinstatement. Both
parties’ positions are informed in large part by their respective views regarding the degree to
which Respondent’s misconduct can be attributed to his mental illness. Respondent’s position
also factors in the notion that his misconduct bore no nexus to his law practice, a notion we
categorically reject. Upon consideration of the materials before us and the above-cited cases, we
conclude that a significant period of active suspension is warranted and that Respondent must be
required to go through the reinstatement process before resuming the practice of law.
Conclusion
The Court concludes that Respondent violated Professional Conduct Rules 8.4(b), 8.4(d),
and 8.4(e) in connection with his pattern of harassment of J.D. For Respondent’s professional
misconduct, the Court suspends Respondent from the practice of law in this state for a period of
not less than one year, without automatic reinstatement, beginning June 28, 2017. Respondent
shall not undertake any new legal matters between service of this opinion and the effective date
of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under
Admission and Discipline Rule 23(26). At the conclusion of the minimum period of suspension,
Respondent may petition this Court for reinstatement to the practice of law in this state, provided
Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and
satisfies the requirements for reinstatement of Admission and Discipline Rule 23(18). The costs
of this proceeding are assessed against Respondent, and the hearing officer appointed in this case
is discharged.
All Justices concur.
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