*1 1258 change.14
name processes. ist The Bureau has chosen to Security's rely on Social records for these say that the Bureau's We cannot a purposes, legitimate and this is means to most, Appellants, peti- at quirement that distinguishing the end of between individu- change, take the court tion for a name als, keeping, promоting public record safe- Security a change Social for its order to ty, assigning rights responsibili- and and records, the Bureau documen- provide Kushner, ties. Shear L.Rev. at UCLA Security's change of consti- tation Social Dannin, 322; See 10 Mich. J.L. Reform U. unreasonable as to be tutes burden so at Although party no claims that the The аrrangement unconstitutional. does Appellants named have assumed new in- rationally legitimate advance the state purposes, names for fraudulent the reason identity theft. preventing terest the Bureau them update has asked their harshly might Whether it administered prevent information is to fraudulent activi- question prоcess run afoul of due ty. Requiring the recognize Bureau to day. another just names without verification would as Injuries Balancing Potential clearly Appellants disserve that interest. any potential Ap- As for whether harm therefore fail on this element. any pellants outweighs poten- would suffer Conclusion resulting tial harm to thе State from a We affirm the trial court. We dissolve grant injunction, Krueger, preliminary injunction entered N.E.2d at that their Appellants argue stay Appeals pending appeal. Court of as automatically any harm outweighs other potential harm because of its constitutional DICKSON, SULLIVAN, BOEHM, 27.) Br. (Appellants' nature. at Becаuse JJ., concur. already we have concluded that no such occur, injury constitutional has will we RUCKER, J., concurs result without reject argument unavailing. this as While separate opinion. recognize importance we to these indi- mobility ability viduals their to con- day-to-day
duct business under their com- names,
monly say used we cannot the trial
court wrong they was to conclude that do outweigh public
not the harm that by allowing incur fraudulent license-
holders continue use them. In the Matter of Kenneth E. Public Interest LAUTER, Respondent. Finally, public interest element of No. 55S00-0906-DI-267. the law injunctions clearly favors the Bureau. In the face of no constitutional Supreme Court Indiana. violations, Appellants eannot maintain that Sept.17,2010. public interest lies in obliging Bu- recognizе reau to changes casual names formal,
effected without resort minimal- paperwork required 14. The for a name form is available on this Court's website at change similarly light complet- gov/judiciary/selfservice/forms/ http://www.in. and can be petitioner. fact, ed easily name-change.html. used *2 Bell, IN,
James J. Indianapоlis, Attor- ney Respondent. for the Witte, G. Michael Executive Secretary, Rice, Frederick L. Attorney, Staff India- IN, napolis, Attorneys for the Indiana Su- preme Court Disciplinary Commission. Attorney Discipline Action PER CURIAM.
This matter is before the Court on report appointed officer this Court to hear evidence the Indiana cоntingency provided for a Disciplinary Commission's Supreme Court (one- Ac- Disciplinary Complaint "Verified on the amount recovered fee based *3 trial, by tion," briefing prior to 40% other- post-hearing on the third settled and wise). 1991 ad- Respondent's "engagement The -It also called for an parties. the $750, him to subjects paid. bar which the client Final- to this state's fee" of mission See disciplinary jurisdiction. a hand-written ly, this the Contract contained Court's Inp. Congr. margin, 7, § notation in the bottom initialed art. 4. client, calling for an "additional retain- the Kenneth E. Respondent, findWe agree firm to payable er fee client and Lauter, attorney engaged in misconduct ("additional litigation" file court re- federal adequately the ba- to communicate failing tainer"). Respondent The miscon- fee to a client. For this sis of his agreed to leave the amount of the addition- duct, Respondent should we find Respondent al retainer undetermined until public reprimand. ceive a diligence and decid- completed had his due Background proceed to the client to ed whether advise that he has 27 Respondent testified Respondent to federal court. testified that years experience litigating employment of attorney typical engagement fee for an Equal the discrimination claims before taking employment an discrimination case Employment Opportunity Commission $5,000, litigation whether or not federal ("EEOC") and in federal court. Prior Respondent's practice is involved. court, bringing such a claim federal charging engagement just an initial fee of file a the claimant must claim with EEOC. goes allows a claimant whose case $750 experience, an adminis- Respondent's In only through proceeding pay the EEOC proceeding is far less com- trative EEOC goes less than a claimant whose case on to At the plex proceeding. than a court end litigation. federal proceeding, the administrative "nо finding will issue either a EEOC In the client's the EEOC issued a cause" or cause." Re- probable "probable finding probable of no cause in December outcome, gardless litigant may Respondent then filed a FOIA re- an proceed point, then to court. At that quest receiving for the file. After EEOC may attorney also file a Freedom of Infor- 2004, February file he contacted ("FOIA") request mation Act to obtain the day client the next to inform her that he file, attorney from which the can EEOC believed the case had sufficient merit to investiga- learn the details of the EEOC's proceed to federal court. He testified that tion, including position of the сlaim- he "reminded her of the additional retainer gath- The information so employer. ant's that she had initialed and said it would be help attorney ered can determine thousand, fifty four two dol- hundred whether the case has sufficient merit ($4,250.00)." lars This amount was not proceed process to federal court. This writing. Respondеnt reduced to did not what refers to as his "due Respondent advise the client that she wish to diligence." independent agree- consult counsel before 2003, May ing days and his law to this amount. Three after this pursue firm were retained a client to an conversation, the client wrote a check to amount of employment Respondent's discrimination claim. The firm in the $4,400.00-$150.00 Respondent's filing firm fee and client and entered into $4,250.00 "Attorney a written Services for the retainer. The Contract" ("Contract") settled, successfully signed by that was the client. client's lawsuit was 2006, $5,000 May the client recovered was if the case and on was not resolved $75,000.00 Respon- frоm the defendant. it prior taking to federal court. There (the $30,000 total en- amount, dent's fee was why $750 seems to be no reason this $4,250 fee, gagement additional retain- range, estimated could not have been $25,000 fee). er, contingent and a one-third communicated to the client at the outset of representation, if was "usual" or "stan- charged Respondent The Commission dard." with violation of Profession Conduct Rules 1.8(a).1 1.5(b), 1.5(c), offi *4 "The relationship lawyer between Respondent cer concluded committed fiduciary and client is a one in which the no rule violation and recommended judg lawyer occupies the highest position of Respondent. ment for The Commission trust and confidence." Prof. Cond. R. 1.8 seeks this review of her findings, Court's "Lawyers emt. always pos [17]. almost conclusions, and recommendation. sophisticated sess the more understanding Discussion arrangements. fee It is ap therefore 1.5(b). Rule Conduct This propriate place the balanсe of the bur Professional part:
rule in provides relevant dealing den of fair and the allotment of seope representation The and the risk in the hands of the lawyer regard expenses basis or rate of the fee and arrangements with clients." Matter of responsi- for which the client will be Myers, 771, (Ind.1996). 663 N.E.2d 774-75 ble shall be communicated to the When the Contract was negotiated, Re client, preferably writing, before or spondent lawyer was a with decades of within a reasonable time after commene- experience in employment discrimination ing representation.... litigation, including in-depth knowledge of typically added.) thе fees charged for such cases. (Emphasis A ordinarily any client will lack knowledge agreement The fee at issue consist cireumstances, of such matters. In such components. ed of three The Commission when a fee gives no disclosure argues leaving the additional retainer guidance as to how an initially unspeci- component unspecified until well into the set, component fied fee will be danger representation was a violation of this rule. of client confusion lawyer over- Respondent testified that at the outset reaching apparent. case, of an employment discrimination he enough does nоt know about its merits to suggest We do not that Respondent determine the amount to charge guilty as an of overreaching dealings in his with additional retainer. He therefore leaves his allegation clients. There is no that the the additional retainer amount charged blank until fee he in this case was unreason- able, hе completed diligence. has his due He represent that he did not the client well, then determines the amount of the addi- or that he good did not achieve a tional retainer evaluating all the evi- result for her. Respondent's structuring possibility dence to assess the of successful of his fees so clients whose claims are litigation federal court and the effort resolved at the administration level pay a required pursue Respondent it. also lower fee than go those whose cases must "industry testified that the standard" fee appears to court intended to benefit his January 1. These rules were amended effective tiеs and the officer treated the Although Respondent's alleged applying. opinion mis- amended versions as This amendments, therefore will do the same. predates par- conduct these 1.5(c). not to discour- certainly be Respondent clients and is note that had We 1.5(b) Rule at the outset complied in this case is that with aged. problem adequate no indication to the disclosure in the Con- gave making retainer, retainer would be or the additional regarding of what tract writing it would be determined. how this would have satisfied 1.5(c). quirement of Rule possi- to exhaust the attempting Without may satisfy the attorneys bilities of how require writing Aside from the Respоndent could requirement, disclosure 1.5(c) ment, however, requires disclo 1.5(b) par- in this complied with Rule have the method which the contin sure of (1) stating the amount of by: ticular case fee is to be determined. In this gent the client would the additional retainer in the calls the handwritten note (2) court; if the case went disclos- owe gоes for an additional retainer the case the additional retainer with ing range stating payment how to court without *5 (8) limit; providing or method upper the figure the additional retainer will into retainer would be by which the additional any contingent calculation of fee that Any of these disclosures would calculated. eventually owing. particular, be given adequate warning have the client the does not state whether the exposure her fee would be and suffi- what applied retainer will toward the "comparison shop" to cient information it in contingent fee or whether is to be thought Respon- alternative counsel she the fee. The term contingent addition to high. Respon- fee too Because dent's was lawyer to a that it might imply "retainer" adequately dent failed to communicate the fee, in the contingent is to be addition to client, to his we conclude basis of his fee way Respondent and this is treated it. 1.5(b). he violated Rule rule purpose protect But one of this is 1.5(c). Rule This Conduct Professional lay the client who unfamiliar with the provides part: rule in relevant legalese industry regarding standards 1.5(c); contingent A fee the attorney fees. Because Contract fails signed by writing in a the shall be adequately to disclose the method and shall state the mеthod contingent the fee was to caleu- which be determined, which the fee is to be lated, we conclude that violat including percentage percentages the or 1.5(c). ed Rule lawyer that shall acerue to the in the 1.8(a). This Conduct settlement, Professional appeal; event of trial or liti- provides part: in relevant rule gation expenses and other to be deduct- lawyer A shall not enter into a busi- recovery; ed from the and whether such expenses are be deducted before ness transaction with a client ... un- contingent after the fee is calculated. less: added.) (1)
(Emphasis transaction terms lawyer acquires which the the in- contingent component of Re terest are fair and reasonable writing, in spondent's fee was as was fully the client and are disclosed requirement for an additional retainer writing in and transmitted the case went to court. The Commission reasonably manner that can be un- argues that the amount оf the additional client; by the derstood writing retainer to be in required also was part "contingent (2) because it of a fee writing was the client is advised agreement" meaning within the of Rule desirability seeking and is
given opportunity outset, reasonable 1.8(a) safeguards of Rule indepen- to seek the advice of would not bе necessary to protect legal dent counsel on the transac- client. Having found that Respondent vio- tion; and 1.5(b) outset, lated Rule at the we decline (8) 1.8(a). find that he gives consent, also violated Rule the client informed writing signed client, in a Conclusion
to the essential terms of the trans- The Court concludes that Rеspon action.... renegotiate begins ment with the client after representation (Emphasis it Comment "applies order to reach a new agreement added.) terms of the fee when a [1] to this lawyer rule arrange seeks to states reprimand. municate adequately the basis of his fee to misconduct, a client. For Respondent's professional dent violates Indiana Professional Conduct Rules 1.5(b) the Court 1.5(c) by failing to com imposes a public that is more advantageous to the lawyer The costs of this proceeding are as- (Em than the initial arrangement." against sessed Respondent. The hearing added.) phasis The Cоmmission alleges officer appointed in this case discharged. that Respondent renegotiated the fee The Clerk of this Court is directed to agreement with his client when he set the *6 give notice opinion of this to the hearing amount of the additional retainer and thus officer, to parties or their respective violated this rule not following its re attorneys, and to all other entities entitled quirements. to notice under Admission Discipline The Court has lawyers found guilty of 23(8)(d). The Clerk is further direct- 1.8(a) violating Rule when they changed ed post this opinion to the Court's web- the terms of a to be more site, and Thomson Reuters is directed to advantagеous to them without providing publish a copy of this opinion in the bound clients with the safeguards mandated volumes of this Court's decisions. Seq, this rule. e.g., Hefron, Matter (Ind.2002) N.E.2d (attorney who SHEPARD, C.J., and SULLIVAN and agreed hourly fee to handle estate in BOEHM, JJ., concur. sisted on contingent fee after discovering assets); substantial Matter Thayer, 745 RUCKER, DICKSON JJ., dissent, (Ind.2001) N.E.2d 207 (attornеy presented believing that the Commission did not new fee agreement to client on day prove a charged violation clear and settlement raising contingent fee from 40% convincing evidence and thus that the 50%). Hearing Officer correctly found no the current Respondent and the violation and a finding recommended agreed at the outset to leave the favor of the Respondent. amount of the additional retainer initially undetermined. We problem view the
this case more as Respondent's failure at
the outset to communicate his fee ade-
quately to the client rather than aas later
ethical lapse when setting the amount of
the additional retainer. If Respondent adequate
had made disclosure of his fee at