In re Earhart
2011 Ind. LEXIS 1050
| Ind. | 2011Background
- In 2008, Respondent was paid $10,000 as an initial fee to represent a client facing anticipated criminal charges.
- Respondent sent a letter calling the $10,000 a 'non-refundable retainer' and stating a further $10,000 would be charged if trial occurred.
- The client died a few days later; Respondent had performed no more than five hours of work.
- The client's widow requested a refund of unearned fees; Respondent refused, claiming the full amount was earned.
- Hearing officer's findings were adopted by the Court; Respondent tendered $10,000 but the matter proceeded to discipline.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the fee charging unreasonable under 1.5(a)? | Commission asserts fee was unreasonable. | Respondent contends fee was justified by engagement. | Yes; fee deemed unreasonable. |
| Did Respondent fail to refund an unearned fee under 1.16(d)? | Commission argues unearned portion must be refunded. | Respondent contends refund not required under circumstances. | Yes; unearned fee must be refunded. |
| Should restitution in this context be considered a mitigating or aggravating factor? | Commission views restitution as mitigating only if timely; otherwise neutral. | Respondent argues restitution supports mitigation. | Mitigating factor acknowledged when appropriate; belated restitution considered but not decisive. |
| What discipline is appropriate for the misconduct? | Commission seeks suspension for misconduct. | Respondent argues for less or no suspension given circumstances. | Suspension for 30 days ordered. |
| Should automatic reinstatement occur after suspension? | Clerk to enforce standard reinstatement upon suspension completion. | Respondent subject to rules and possible conditions on reinstatement. | Automatic reinstatement subject to Admission and Discipline Rule conditions. |
Key Cases Cited
- Matter of Levy, 726 N.E.2d 1257 (Ind.2000) (acceptance of hearing officer findings resolve misconduct and sanctions)
- Matter of O’Farrell, 942 N.E.2d 799 (Ind.2011) (unearned fees must be refunded)
- Matter of Kendall, 804 N.E.2d 1152 (Ind.2004) (fee refunds and discipline guidance)
- Matter of Fairchild, 111 N.E.2d 726 (Ind.2002) (mitigation considerations for restitution timing)
- Matter of Brown, 636 N.E.2d 1249 (Ind.1994) (restitution considerations in discipline)
- Matter of Hanley, 627 N.E.2d 800 (Ind.1994) (mitigation/ aggravation factors in discipline)
- Matter of Baggerly, 954 N.E.2d 447 (Ind.2011) (aggravating effects of delayed restitution)