Wednesday, September 16, 2009

Can attorneys be punished for misconduct?

What do you call a cruise ship full of attorneys at the bottom of the sea? . . . A good start! There is a reason for the degrading and lethal jokes about attorneys. For those people who have been involved with them it is not uncommon to have a disagreement or to feel that you have been wronged by an attorney. Most disputes are over billing. The agency responsible for enforcing the rules for attorneys is the Disciplinary Commission of the Indiana Supreme Court.

Attorneys have certain basic rules that they must follow as set forth by Indiana Code 33-43-1-3. One of 10 particular provisions is that an attorney shall employ, for the purpose of maintaining the causes confided to the attorney, only those means that are consistent with truth and never seek to mislead the court or jury by any artifice or false statement of fact or law.

The Rules of Professional Conduct set forth the complete guidelines that attorneys are required to follow through various aspects of their trade from courtroom decorum to advertising. As in any profession there will be the god and the bad. Those who follow the rules, those who bend them and those who show outright disregard. So, what happens when an attorney doesn't follow those rules?

Most attorney complaints are about billing issues. Resolution of those problems should be attempted with the attorney but if that fails then there is the Disciplinary Commission. I have used the Commission with success and failure in the past.

A few years ago I was reading the local newspaper. There on the front page was a photo of the local prosecutor and statements about a defendant in an upcoming trial. He was clearly attempting to try the case in the press and prejudice the jury. I immediately made a Request for Investigation to the Commission. The prosecutor was charged with "misconduct" and even though the judge ordered me out of the courtroom during the trial I was still able to advise my client during breaks. She was acquitted in about half an hour.

There is another type of misconduct for which I have made complaints against an attorney. This attorney represented a town which was involved in a lawsuit against me and also as a defendant in my suits against them. In the case against me he intentionally withheld exculpatory evidence, tried to mislead the court, misstated the law and at times outright lied.

In 1997 the Tippecanoe County Commissioners had a billing issue with this attorney. The Journal and Courier reported about this on March 5, 1997. The article stated that the attorney had submitted a $21,000 invoice for January and half of February 1997. Unlike other attorneys, his billing statements did not itemize his charges. "The way he is not proper," said Commissioner Kathleen Hudson who was a client of his when she voted to hire him as the county attorney.

In a previous complaint I demonstrated that this attorney had, among other things, submitted falsified billing to the Town of Thorntown in 2007. In that instance he had submitted itemized billing. The unfortunate thing is when he submits an itemized bill he charges for work he couldn't have done.

In one suit I filed against the Town of Thorntown, he said he spent 3.6 hours at a hearing in Boone Superior Court I on 04/25/07. However, Judge Mathew Kincaid produced a court calendar that showed the attorney had not been in court that day. The judge also provided a case calendar for the particular case billed for which showed there was no hearing anytime near that date. It was a complete fabrication.

Disciplinary Commission Executive Secretary Donald Lundberg sent a letter to me about each complaint stating that he found no evidence that would warrant discipline. A state attorney paid through taxpayer funds should be more vigilant in pursuing actions against fellow attorney's who are stealing money from taxpayers. Those 3.6 hours at $185 per hour cost taxpayers about $650. Since I was ordered to pay those fees by a different court I will soon be filing a lawsuit to recover those fees plus other damages and court cost.

Indiana Code 33-43-1-8 allows for a person to recover triple damages against an attorney who has used deceit or collusion with intent to deceive a court, judge, or party to an action or judicial proceeding to obtain a judgment. Attorney Carlyle "Cy" Noyes Gerde of Lafayette, Indiana clearly did that. He makes a practice of representing small municipalities and running up huge legal fees before moving on.

Now I have a case to present to you that shows Gerde has clearly violated the Rules of Professional Conduct in Thorntown's case against me. In the Complaint I allege that Gerde has violated all of Rule 3.3 about candor towards the court and four portions of Rule 3.4 requiring fairness to the opposing party.

The following is a portion of the complete Request for Investigation that I have submitted to the Disciplinary Commission. This was a public nuisance case brought after I put a sign in the window of my porch that read, "Child Molestation Ring Evidence - Guess who's involved." Essentially what I claim is that the Town Council President Gary Jones freaked out about that sign and ordered Marshal Woodard to go after me for something. On July 20, 2006 Marshal Woodard delivered two Notices to Abate to me. One cited that there was an abandoned car in my drive and a fiberglass playground equipment in the shape of a boat; the other was for grass exceeding 12 inches in my flower beds.

There was an abandoned car in my drive and I made the owner come get it. I also pulled all the shoots of grass out from my flower beds. The Marshal wrote a letter thanking me for remedying the car and grass situation but since I refused to remove the playground equipment I was cited on 08 August 2006 for having an abandoned vehicle on my son's playground. That case was dismissed.

On 01 September 2006 I was sued for having vegetation on my property exceeding 12 inches and also for maintaining a dangerous structure identified as my house with poster-board signs in the windows. I allege that I sought copies of the Notices to Abate and letter from the Town Marshal. Attorney Gerde and Marshal Woodard during the discovery process both said the documents didn't exist. Although I wasn't cited for any trash, debris or other condition of the property Attorney Cy Gerde regularly lied to the Court saying that it was a "trash case".

Here are portions of the actual transcripts from the case.

The Notice violation -

Indiana law requires that a notice be provided to a property owner giving at least 10 days to remedy an alleged violation before the municipality takes action to remedy the alleged offense.

Page 30 Line 6 - GERDE: ". . . you were given many notices."
Page 30 Line 16 - GERDE: "You were given actually, as you know, many warnings. Uh, for all during July and August, you did not respond to those, uh, so you were cited."
Page 46 Line 9 - GERDE: "But those are what he found when he went to the scene and those are what he had complained about in July and August to Mr. Showalter and when they were not solved, he normally gives at least thirty (30) days and he did give more than thirty (30) days and that was what he was cited for in 3386, which was uh, conditions declaring to be a public nuisance and that includes chapter 12, Section 12.1 . . ."

The Irrelevance violation -

The citations were for signs in the windows of my house making the house a dangerous structure and for vegetation "exceeding one foot" which Gary Jones testified were trees, bushes and flowers.

Page 30 Line 1 - GERDE: " . . . this is a trash case. That's all it is is a trash case. We have those every year in tens of thousands communities and the law makes it very clear that we have a choice to discretion to enforce it or not. And in this case choose to enforce it and uh, there were . . . you were given many notices."

Page 33 Line 2 - STUART: "He [Gerde] also brings up the issue of citing that this is a trash case, yet, subsection . . . Part D, Subsection One (1) of the purported ordinance is what relates to trash, debris and so forth, being on a property, yet that is not what I've been cited under, so I believe that is absolutely irrelevant."

Page 65 Line 16 - GERDE: " . . .have to be with all this peripheral things as whether his signs are constitutional or whether he has a right to call people liars, that . . . none of which has anything to do with this. This is a trash case."

The testimony about this being a trash case is extensive. If you want to see it all you'll have to check out the transcripts from the Boone County Clerk. Clearly though as you are reading this you can see that even after I told him it was not a trash case, which he knew, he continued to carry on about it being a trash case.

The best and most damaging part of this case is when Cy Gerde and Marshal Jeff Woodard state that the 08 August 2006 letter from Woodard doesn't exist. I have now obtained the originals from the police station. To see all the allegations read the complete Request for Investigation and supporting documents.

So now it is time for Donald Lundberg to show that he is going to apply the rules of attorney discipline as he is required to or is he going to show that he is operating in collusion with Gerde.

To see more about Gerde subscribe to my blog. You will soon see the evidence that Gerde broke into his elderly parents home then beat and robbed his mother. You'll also get additional information about past discipline cases against Gerde. Thanks for reading.

Stuart Showalter

Indiana Custodial Rights Advocates

©2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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