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Lawyer invokes ADA in discipline case after crime

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A northeastern Indiana lawyer who allegedly “terrified” a woman who rejected his romantic advances contends in his resulting attorney discipline case that he had an undiagnosed mental illness. Because of that, he argues that an Indiana Supreme Court sanction against his license to practice law would violate the Americans with Disabilities Act.

johnson-booking-1col.jpg Johnson

Veteran attorney Joseph M. Johnson III was chief public defender in Adams County from 2004-2014, but his tenure ended the same year he was accused and convicted of a criminal charge stemming from his pursuit of a woman identified as Jane Doe in his discipline case, some of which contains sensitive information that was filed under seal in April.

The Indiana Supreme Court Disciplinary Commission’s complaint incorporates the woman’s allegations that include Johnson’s “persistent” harassing and threatening phone calls, texts and emails in March and April 2014. She alleges Johnson also made false reports to her probation officer and in one text message wrote, “You don’t want those … kids away from you, rught? (sic) So start taking me seriously.” The woman also claims Johnson once waited for her children to get off the school bus, then followed them up the stairs leading to her apartment.

Johnson denies the claims involving the woman’s children and several other allegations in his answer filed June 22, though he admits the woman took a photo of him outside her apartment the same day she accused him of following her kids. He admits he sent her a text later that same day that said, “Make sure you tell your kids that YOU denied them a world of opportunity. DONE.”

Johnson said in his answer that his behavior during this time was uncharacteristic, and he has since received successful treatment for bipolar disorder. Any attorney discipline therefore would violate federal laws prohibiting discrimination on the basis of disability, he claims.

“There is no need for the coercion of lawyer discipline to address an issue that [Johnson] has successfully and voluntarily handled on his own,” his answer to the commission’s complaint says.

“At all times relevant to the conduct alleged in the Complaint, [Johnson] was experiencing symptoms of a mental health condition, the alleged conduct was caused by his mental health condition, and similar misconduct has not recurred as a result of professional medical treatment. Recurrence of similar conduct in the future is unlikely,” he argues. “Action directed at prohibiting [Johnson] from practicing law under these circumstances violates the Americans with Disabilities Act” as well as Section 504 of the Rehabilitation Act of 1973.

Johnson is represented by Barnes & Thornburg LLP partner Donald Lundberg, who said he couldn’t comment on the case. Lundberg said he was unaware of another lawyer discipline case in which an ADA defense was raised when the underlying conduct was criminal in nature.

As an affirmative defense, Johnson argues, “The conduct alleged by the commission did not have a nexus with [Johnson’s] fitness to practice law and is not, accordingly, conduct that, if true, should subject him to professional discipline.”

According to the complaint against Johnson, he and Jane Doe had a brief affair in 2010. After he ran into her at her drunken-driving trial at the Decatur courthouse in March 2014, he called, texted and emailed her dozens of times in the weeks that followed.

On April 6 of that year, the complaint says Johnson went to her apartment door, “refused to leave and prevented her from being able to shut the door,” at which point she called police. Johnson denies some of those allegations in his answer, though they form the elements of the criminal trespass charge for which he was later convicted.

Johnson doesn’t deny the allegation that he sent the woman a text message stating, “it is in my power to make your life hell. Or you could just listen for a minute.” The text was sent the day after the woman said she repeatedly asked him to leave her apartment door and stop texting and calling her.

A protective order was issued April 11, 2014, that barred Johnson from contacting the woman, but the commission says Johnson continued to seek to jeopardize her probation. Among other things, the complaint says Johnson reported anonymous tips that she was drinking in violation of her probation — tips local authorities investigated and found baseless.

Johnson also disputes in his answer the commission’s allegations that after state police began investigating the woman’s complaints on May 5, 2014, Johnson “became verbally aggressive and asked the detective if he knew Respondent was an attorney.” Johnson was arrested a few days later, after he failed to show up at a scheduled interview with a state trooper. He was charged with Class D felony false reporting and two counts of Class A misdemeanor trespass.

Johnson was convicted in a bench trial of a single misdemeanor trespass count in October 2014 stemming from the incident at the woman’s apartment when she said he prevented her from closing the door and refused to leave.

The Court of Appeals affirmed Johnson’s conviction last year, rejecting his pro se argument that he had not trespassed because the woman lived in an apartment and didn’t own the property. “At the outset, we summarily reject Johnson’s contention that the trespass statute applies only for unwelcomed incursions onto real property, versus unwelcomed incursions onto leaseholds” such as apartments. Johnson was asked to leave at least a dozen times, the COA noted.

The commission alleges Johnson violated three Rules of Professional Conduct. “By his conduct in committing the crimes of criminal trespass, stalking, harassment and invasion of privacy,” Johnson violated Rule 8.4(b), the complaint alleges. The rule regards committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness and fitness.

Johnson also is accused of violating Rule 8.4(d), engaging in conduct prejudicial to the administration of justice, for his alleged interference with Jane Doe’s probation, violation of a protective order, his attempts to thwart the State Police investigation, and abusing his position as a public defender and attorney. He also is accused of violating Rule 8.4(e) for stating or implying he could improperly influence the police, probation officer or judge, according to the commission’s complaint.

Johnson noted in his answer he continues to be “actively and successfully engaged in the private practice of law” with the Decatur firm Devoss Johnson Zwick Baker & Ainsworth P.C. According to his page on the firm’s website, Johnson practices primarily in criminal defense, which he says comprises 80 percent of his practice. Johnson was admitted to practice in 2003 and has no prior discipline. A final hearing in his discipline case is scheduled to begin Sept. 26 before hearing officer Robert C. Reiling.•

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  1. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

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