Attorney guilty of felony OWI avoids suspension, gets JLAP monitoring

An Indianapolis attorney with two operating while intoxicated convictions in as many years has received a stayed suspension of her law license from a majority of the Indiana Supreme Court, which ordered the attorney to participate in Judges and Lawyers Assistance Program monitoring.

Kelly J. Smith of Brannon Sowers & Cracraft pleaded guilty in August 2017 to felony and misdemeanor counts of operating a vehicle while intoxicated. Online court records show Smith was charged in April 2017 with Level 6 felony operating a vehicle while intoxicated with a prior conviction and two counts each of Class A and Class C misdemeanor drunken-driving-related charges. Records show Smith pleaded guilty to the Level 6 felony, while the four misdemeanor convictions were merged.

At the time of the arrest, Smith had a prior OWI conviction in Marion County and was on probation. Thus, Smith was placed on 45 days of house arrest and was required to submit to daily alcohol monitoring, in addition to receiving a 730-day suspended jail sentence in Johnson County.

According to an Indiana Supreme Court order dated Aug. 10 in In the Matter of: Kelly J. Smith, 18S-DI-5, Smith had sought treatment and therapy after her first OWI arrest in September 2016 and had been compliant with all medical recommendations. However, unbeknownst to Smith, her initial diagnosis was not fully accurate, so her treatment plan was not as effective as it could have been. But after her 2017 arrest, Smith obtained a new, more accurate diagnosis that has led to a more effective treatment plan.

The Indiana Supreme Court Disciplinary Commission and Smith agreed she violated Indiana Rule of Professional Conduct 8.4(b), which prohibits criminal acts that reflect adversely on a lawyer’s trustworthiness or fitness. A majority of the Supreme Court justices accepted the proposed discipline of a 90-day suspension, all stayed subject to Smith’s completion of at least one year of probation and monitoring by the Judges and Lawyers Assistance Program.

Smith must adhere to four probation conditions, including:

• Maintaining complete sobriety during her probation;
• Committing no violations of the Rules of Professional Conduct and no criminal acts;
• Complying with her existing treatment and criminal probation in Johnson County, and;
• Submitting an affidavit of compliance to the Supreme Court following the completion of her probation.

If Smith does not comply with the terms of her probation, she will be ordered to serve the balance of her suspension without automatic reinstatement. Her probation will remain in effect until it is terminated pursuant to a petition filed under Admission and Discipline Rule 23(16).

The costs of the proceeding are assessed against Smith.

Chief Justice Loretta Rush signed the order on behalf of the court, but she dissented from the agreed upon discipline, “believing that a period of active suspension and a longer term of probation are warranted given the endangerment involved in both criminal cases.”