*1 792 case, disposition they in-
2005, propose belts that has installed seat we stated re- appropriate result. As a shoulder harness. clude matter, “A cently suspension another Aubrey: Yes. of du- pay, regardless from office without There Respondent: you go. ration, is not a minor Even sanction. Aubrey: Well, you supposed how are public any than a such reprimand, more nobody’s you? told know if ever significant is a blemish on suspension Respondent: you I’ll what —let’s tell reputation.” sitting judge’s Matter of this, okay? on Then it a trial have (Ind.2009). Hawkins, 231, 902 N.E.2d expensive. as Oc- gets about times Accordingly, Jeffrey A. 6. tober Harkin, Court, Judge City of Hammond Aubrey: ... Uh hereby suspended pay without from office Respondent: youDo the seatbelt admit period sixty days, commencing for a violation? p.m. Tuesday, at 5:00 CST on December Aubrey: I do. 27, suspension 2011. The shall terminate Respondent: Alright. Step around $25. judge automatically shall be rein- to-pay aget and card. to office at on Satur- p.m. stated 5:00 CST agree parties 25, February day, made during statements discipline disciplin- This terminates thе above, 45H04-1006-IF-14765, quoted as ary proceedings relating to the circum- violated Code of Judicial Conduct’s giving stances rise to this cause. The all required him: to “act at provisions if proceeding, any, costs of this are as- public promotes times in a manner that against the Respondent. sessed integrity, in the independence, confidence impartiality judiciary,” Jud. C.J., SHEPARD, DICKSON, J., (asterisks deleted); “per- 1.2R. Cond. J., SULLIVAN, RUCKER, J., and judicial fairly all duties of office form DAVID, J., concur. 2.2; impartially,” Jud. Cond. R. to refrain “actfing] in a that coerces manner settlement,” into Jud. R. any party Cond.
2.6(B); patient, “be dignified, and to litigants,” R.
courteous Jud. Cond.
2.8(B). Young, See also In re (Ind.2011) (imposing discipline did, to, judge
where im- threatened pose penalties increased for traffic infrac- In the Matter of Lawrence T. right who their litigants exercised NEWMAN, Respondent. pleading guilty, trial instead of so as to No. 49S00-0907-DI-331. them for penalize doing so and discour- so). doing age others from Supreme Court of Indiana. Sanction Dec. The parties agree appro that the priate sanction miscon sixty suspension pay
duct is
(60) days. The agrees Court
parties that under the circumstances
Attornеy Pro se. Witte, Secretary, G. Michael Executive McKinney, Attorney, In- Dennis K. Staff IN, Attorneys for the Indiana dianapolis, Disciplinary Commission. Supreme Court Hearing Attorney Discipline Action Officer Barbara Collins PER CURIAM. Lawrence T. Respondent, find that
We Newman, misconduct engaged reason- by failing with a client’s accounting of the able for an being discharged, prior hours he worked fee, by failing an unreasonable charging representation promptly to withdraw by failing to being discharged, file after its retention return the client’s pay- longer necessary to secure was no fee. ment of his misconduct, committed with the For this leverage in his gaining motivation of unfair client, we find that with his suspended from the Respondent should be at least 18 practice of law in this state for without automatic reinstatement. months on the matter is before Court This appointed report of evidence on the Indiana to hear Court Disciplinary Commission’s Supreme Court Ac- Complaint Disciplinary “Verified tion,” signed post-hearing briefing by and on the under which parties. hour, 1987 admission paid would be subjects him to this to this state’s bar payable only upon receipt of her distribu- See Ind. disciplinary jurisdiction. Court’s estate, plus from the of Const, 7, § art. M.L.’s distribution.
Background When M.L. Judge retained Hearing “Report filed her Officer Charles J. presiding Deiter was in the Findings Fact Conclusions of Law” estate case. filed an appear- adopt findings on June We disqualification ance and a motion for fact, primarily which consist facts *4 the judge, granted. which was Judge stipulated by supplement parties, disqualification Deiter’s from the estate them findings with additional that are ei- prior case was based on a action brought ther by Respondent supported admitted by Respondent against and his wife Judge convincing clear evidence the Deiter alleging and others anti-Semitism record before us. in thwarting attempt by an Respondent 2006, died,
In April
the father of “M.L.”
and his wife
a
adopt
to
child. See New-
leaving
closely-
Indiana,
an estate that included a
937,
man v. State
129 F.3d
(“Corporation”).
(7th Cir.1997).
held corporation
M.L.
sister,
only
the decedent’s
surviv-
30, 2006,
On September
M.L. sent Re-
children,
ing
appointed
co-special
were
as
spondent
requesting
a letter
him stop
to
administrators of
estate and
directors
all work
stand-by
and instead act as
coun-
Corporation.
of the
M.L. served
presi-
as
sel in case she
make a
had to
decision or
Corporation
dent of the
and her sister
sign
relating
documents
to the estate. On
served
vice president. Disagreements
as
4, 2006,
October
Respon-
M.L. terminаted
arose between M.L. and her sister and
dent’s employment and asked him to send
between
attorneys
M.L. and the estate’s
her a statement for the work he had done.
regarding the
operation
Corporation
17, 2006, attorney
On October
John Price
of the estate.
administration
The
sent a letter to Respondent stating that he
attorneys sought
estate’s
a restraining or-
was M.L.’s new counsel and requesting
against
probate
der
court
Respondent
from
M.L.’s file and an invoice
sponte
sua
M.L. as
removed
co-adminis-
for his work.
M.L.
Price and
sent several
trator of the estate.
subsequent
that
2006,
7,
September
On
M.L. retained
withdraw his appearance promptly, return
Respondent to
her in
represent
connection
file,
a
and send
statement of his
disputes,
with
foregoing
but not con-
letter,
hours.
In one
Price proposed a
cerning her inheritance from the estate.
settlement regarding
fee.1
At
point,
that
M.L. wanted
to
2006,
17,
On
November
filed
actions,
a
including
undertake
number
a “Notice of
Attorney’s
Intent
Hold
seeking
attorneys,
removal of the estate’s
Lien” on M.L.’s
distribution
the es-
co-special
reinstatement of M.L. as
admin-
estate,
tate
plus
for his
accounting
istrator of the
estate,
appointment
work done for the
distribution. He filed a motion to
of a
party
Corporation.
20,
neutral
to run the
withdraw his
on
appearance
November
Although
representation
M.L. in
of her in
Price assisted
these com-
Price’s
the estate
disputes,
munications
other
and Price
and M.L. retained
counsel for
ultimatеly
purpose.
to an
did not come
on
papers relat-
lawyer may retain
following
2006,
granted
which
the extent
the client to
ing
a dis-
response
Eventually,
month.
time
other law.”
permitted
raw
provided
he
covery request,
on
counsel
M.L.’s successor
sheets to
l.k(a)(Jf)
Violation
—Fail
two-page
provided
He
March
Requests
Respond
ure to
for Informa
successor
time to M.L.’s
summary of his
concluded that
The
tion.
nearly
September
on
counsel
2009—
by failing
rule
violated this
request.
initial
after the
years
thrеe
of the hours
timely accounting
provide
7, 2009,
court
probate
On October
to do
despite multiple requests
he worked
Retaining
Regarding
an “Order
entered
these re
Respondent contends
so.
to re-
Lien,”
ordered
which
because his
were not reasonable
quests
of a
posting
her on her
M.L.’s file to
turn
irrelevant, arguing:
under
hours were
bond,
post.2
not
which she did
agreement, his entire
parties’
Re-
determined
thereafter
probate court
(both hourly and
was to be
percentage)
$8,428.26,which M.L.
feе to be
spondent’s
from the
contingent on M.L.’s distribution
Prior to
in December 2009.
paid to him
*5
estate;
his
would be irrelevant
thus
hours
return
refused to
payment, Respondent
distribution;
there was a
unless and until
M.L.,
that it
contending
secured
the file to
discharged, his fee
once he was
attorney
pay-
After the
claim for
fees.
his
me-
quantum
calculated under
would be
ment,
allow
willing
was
based on the
by
probate
ruit
the
court
her file at his office.
pick up
M.L. to
by
not the hours worked
benefit
Discussion
if M.L.
only
recoverable
re
Resрondent The
Charges against
The
from the estate.
ceived a distribution
vio-
charges
Commission
argument
fails be-
Respondent’s first
following
the
Indiana Professional
lated
all of M.L.’s
came
she
cause
Rules:
Conduct
contingent
discharged him and the
1.4(a)(4):
promptly
...
lawyer
“A
shall
for
longer operable.
was no
As
agreement
with reasonable re-
has held
argument,
the second
this Court
quests for information.”
on
a fee is determined based
that when
1.5(a):
not make an
lawyer
“A
shall
meruit,
by
expended
the time
quantum
for,
collect
agreement
charge, or
controlling, but
the
alone is not
an unreasonable fee.”
charges, adjusted
any
for
hourly
the
time
1.16(a)(3):
lawyer ...
shall with-
“[A]
efforts,
unnecessary
is a
unproductive
representa-
draw from the
presumptive
as a
measure
likely candidate
a client if ...
tion of
lawyer’s contribution. See Galanis
lawyer
discharged.”
Truitt, 715 N.E.2d
Lyons
v.
&
(Ind.1999). Indeed,
1.16(d):
filing af-
Respondent’s
represen-
termination of
“Upon
Intent to
tation,
discharge of his “Notice of
steps
take
ter his
shall
Lien” on M.L.’s distribu-
reasonably practi-
extent
Hold
Attorne/s
(plus
his
protect
a client’s inter-
cable
distribution)
an admission of
ests,
surrendering
...
as
such
Moreover,
if
even
to which relevance of his hours.
papers
to a fee
would not be entitled
The
the client is entitled....
file,
time,
and her counsel stated
By
counsel
she and
successor
importance had
litigate
years
its
diminished.
required to
for three
had been
any
sort unless M.L. received a distribu-
delay
prior
to M.L.
to his withdrawal. We
estate,
accounting
tion from the
an
of his
therefore conclude that
violat-
1.16(a)(3)
was relevant
attempt
hours
M.L.’s
ed Rule
withdrawing
not
his
Price)
(through attorney
to settle the mat-
appearance in a timely manner.
him early
having
ter with
on rather than
Violation Rule 1.5(a)—Charging
wait until the estate
were all re-
matters
an Unreasonable
Fee. The
solved and she received her distribution.
concluded that
violated Rule
clearly
hours were
rele-
by “negotiating
1.5
entering
into a
vant
to his claim for
after he
fees
was
contingency
when [M.L.]
discharged. Respоndent
does not
non-recovery”
faced no risk of
in the estate
accounting
that an
could have been done
matter.
easily
quickly.
He admits he could
Although there
photocopied
have
were a number of
handwritten time
dis-
estate,
putes regarding
sheets in about five minutes.
re-
making
quests
accounting
amount of M.L.’s
eventual inheritance un-
certain,
reasonable,
eminently
hours were
Respon-
evidence indicates there was
dent had
virtually
no excuse for not
no
providing
possibility
that M.L. would
information, and we
Respon-
conclude that
nothing.
receive
M.L. told Respondent
dent violated Rule
by not prompt-
the estate was valued at
million but
ly providing
requested
information.
mismanagement.
diminished
estate,
even without the value of the
1.16(a)(3)—Fail-
Violation
Corporation, was originally valued at close
ure to
Appearance
Withdraw
in a Timely
*6
million.
M.L. testified that
Manner. The hearing officer concluded
disputes regarding the estate were eventu-
that Respondent violated Rule
ally resolved through a settlement under
by failing to withdraw
appearance
his
in a
which she received
million.
$3.5
timely manner after being discharged.
Respondent argues
“timely”
that
does not While we do not adopt the Commission’s
mean “immediately,”
that it
was not
assertion that a contingent
agreement
fee
prudent for him to
repre
withdraw from
per
se unethical whenever there is no
(1)
senting M.L. sooner because:
risk of total non-recovery, we conclude
mind;
might soon change her
if he
that
supports
еvidence
a conclusion
withdrew immediately,
it
appear
would
that
contingent
agreement
under
that M.L.
manipulating
system
was
by the
particular
circumstances of this
ease
retaining
solely
him
disqualify Judge
was unreasonable.
Deiter.
1.5(a)
Moreover,
prohibits
Rule
not
Respondent waited over six weeks after
only making
for an unrea
he
discharged
to file a motion to with-
fee,
sonable
but
charging
also
or collecting
appearance,
draw his
despite repeated re-
an unreasonable fee. Even if a
agree
quests by Price and M.L. that he do so.
reasonable,
initially
ment
subsequent
hearing
The
findings
officer’s
contain noth-
may
events
render collection of the fee
ing to support Respondent’s arguments
Powell,
unreasonable. See Matter
953
that the possibility
might
that M.L.
change
(Ind.2011);
Gerard,
N.E.2d 1060
Matter of
possible
mind or the
appearance of
(Ind.1994).
Lien” on M.L.’s v. Hendricks ex rel. Shannon See State 25 plus tate for his Court, Ind. 183 N.E.2d once that Circuit He concedes the distribution. (1962). based on fee had to be discharged, his Thus, color- he had no quantum meruit. challenge the does not The Commission percent of a lien for 25 to assert able basis liens. It ar- validity retaining general even after he And M.L.’s distribution. however, reten- gues, claim, the record this eventually dropped unnecessary because M.L.’s file was tion of quantum meruit he asserted shows that (or statutory recorded a he had filed and $60,000 that a he conceded when claim of matter on lien in the estate “charging”) would be hourly rate on his fee based distribution, than which was more $7,000.3 around of his fee.4 payment to secure sufficient circum- totality of these Under depen- lien was not statutory Because the stances, vio- conclude that we of M.L.’s Respondent’s retention dent on 1.5(a) by charging an unreason- lated Rule con- file, asserts that his the Commission able fee. unjusti- of M.L.’s file was tinued retention fied. 1.16(d)
Violation —Failure Promptly Property Return Client after At here is not issue concluded Discharge. documents product, but M.L.’s own work by fail violated this rule while he entrusted to that she promptly return M.L.’s file to her ing to attorney may An not was her counsel. Although Rule being discharged. ethically property client funds or retain 1.16(d) discharged attorney to requires a clearly in of what is needed that are excess to which papers surrender for fees. In attorney’s claim protect entitled, it also states: “The the client is (Ind. Marshall, Matter of relating retain lawyer may papers 2009), attorneys disciplined two Court extent other permitted client to the turn over to their failing promptly argues properly that he law.” *7 of a lawsuit proceeds client the a M.L.’s file because he had valid retained indisputably were ex extent the funds securing payment lien on the file retaining maximum amount needed to cess of the thus entitled tо retain of his fees and was attorney payment disputed fees secure paid provid file until he was either lawyer may not hold expenses. “[A] adequate security payment. ed with enti indisputably to which a client is funds accepting client into lien the common law tled to coerce the retaining A over attor lawyer’s contention in a right attorney possession to retain may documents, A court re money, ney or other fees.” Id. at 253. of a client’s attorney to turn over documents quire that comes into the hands of the which he personal property over until the balance and other professionally hiring get Judge argued him to Deiter off the in the estate case that tern 3. "unjust enrichment” his fee should reflect the case. ability get unique M.L. received from his to case, Judge Deiter removed from the assert- Although Respondent’s "Notice of Intent to Thus, $60,000. ing a claim of Attorney’s not contain a stat- Hold Lien” does seeking compensation far in excess of his citation, utory appears to invoke Indiana it part in what he insists was rate for his § Code 33-43-4-1. legal sys- manipulation of M.L.'s unethical retaining claims a lien if the provides ry court relationship exists between lawyer a security for adequate payment of fees client, .and the confidence which the NSR, Inc., the client owes. v. See Bennett relationship begets between parties (Ind.Ct.App.1990). 553 N.E.2d makes it necessary lawyer for the to act in good utmost faith.” Matter Lansky, Respondent argues statutory that his (Ind.1997) (cita- 1116-17 adequate security lien wаs not for his fee omitted). tions After M.L. entered into the (without claim, contending citation to the with record) she was that M.L. challenged had the stat- entitled to change her mind and discharge utory validity lien’s until the point time, him any at cause, with or without probate court determined the amount of subject liability for payment of evidence, for his however, fee. The services on the basis of quantum indicates that M.L. never meruit. denied that Re- See id. at 1116. “Even if spondent was entitled to a fee based on has unfairly beеn discharged by client, quantum meruit and only contested a lawyer must take all amount of his claim. quantum steps meruit reasonable mitigate claim Respondent eventually consequences asserted was to the client.” 1.16, $60,000, Prof. R. just probate Cond. cmt. liqui- court $9,000 at than dated less dollars. The After M.L. discharged Respondent, the probate required court post a bond only issue between them was how much of only for the return of her file a fee he was entitled to receive for the “[bjecause really there is no risk ... limited amount of services he provided had whatever decision I make about the fees her. But rather than protecting M.L.’s that it will paid.” not be interests after being discharged, Respon- Attorneys are payment entitled to dent waged a war her, of attrition against for their appropriate labors and to security refusing to cooperate with her or her suc- for their until paid. fees An attorney is cessor counsel even the smallest way not, however, entitled to deny a client his and running up legal pro- bills with or her own property when retention is litigation tracted in the estate matter. wholly unnecessary to secure the attor Respondent attempts justify his ac- ney’s claim. We find that in the circum in large part by tions attacking ac- case, stances of particular Respon cusing her of manipulating the legal sys- retaining dent’s unnecessary lien was liar, tem criminal, and of and a secure payment of and that reten bigot. agree We officer’s provided tion of M.L.’s file him with noth *8 finding that therе is no credible evidence ing of except value leverage unfair in the accusations are true. dispute with his former client. We case, however, In any a client’s misconduct therefore Respondent conclude that violat way in no excuses unethical by conduct his 1.16(d) by ed Rule refusing to return attorney. or her M.L.’s file to her promptly payment after of his fee was more than adequately se Respondent also accuses the Commis- by cured alternative means. sion of him pursuing while ignoring more egregious
Aggravating by misconduct other attorneys. Circumstances. “The practice of law is He examples more than a mere cites of purported miscon- vocation undertaken for profit. attorneys A duct other involved in the duty has a to protect preserve the estate litigation, of which he contends the rights aof client. A fiducia- Commission was aware. He also details resuming before process against attor- reinstatement has filed his wife
grievances for rein- matters, Approval petition he con- of practice. which neys in unrelated investigate. discretionary requires failed to is the Commission statement tends true, howev- peti- were of the convincing his accusations evidence Even if clear and has not er, remorse, rehabilitation, Commission and fitness the fact tioner’s charges against other misconduct Disc. R. pressed law. See Admis. practice of 23(4)(b). not relieve attorneys would for his. to this Court answerable being Conclusion analysis prop of “Our Disciрline. concludes that The Court of the na consideration er sanction entails Professional Conduct violated the Indiana misconduct, duty violated ture 1.4(a)(4) prompt- by failing Rule any resulting poten or respondent, by requests for an ly M.L.’s reasonable with mind, harm, state of respondent’s tial 1.5(a) hours, his Rule accounting of integrity of the duty preserve our fee, unreasonable Rule charging an public should we the risk to the profession, promptly by failing to withdraw in law to continue respondent allow the being of M.L. after representation from extenuation, miti in and matters practice, 1.16(d) by failing to discharged, and Rule Matter aggravation.” gation, after its retention was no return M.L.’s file (Ind.1996). 256, 258 McCarthy, of his necessary payment to secure longer fee. violated the Had or in a through inadvertence
rules at issue professional miscon- For prop that his conduct good faith belief duct, suspends Respondent the Court er, any remorse or if he had shown for a practice of law this state misconduct, relatively intо his insight months, than 18 period of not less Re might appropriate. be mild sanction reinstatement, beginning Janu- automatic however, in an unre engaged spondent, Respondent shall not under- ary unjustified mis clearly lenting pattern legal matters between ser- any take new leverage gain conduct to unfair date of vice of this order and the effective fulfilling his instead of shall ful- suspension, her interests duty protect suspended fill of a all duties showing any re Rather than discharged. Discipline Rule under Admission and made inflammato insight, morse or he has 23(26). of the minimum At the conclusion client and the ry attacks on his former may pe- period suspension, insight lack of “It is this Commission. for reinstatement tition this Court significant that a that leads us to conclude state, Re- provided of law in this practice necessary to ensure that sanction proceeding, pays the costs of spondent im misconduct seriousness [his] attorney, suspended of a fulfills the duties light In upon [his] pressed [him].... requirements for rein- and satisfies the we nothing wrong, insistence that did [he] Disciрline Admission and statement of miscon grave have concerns that similar 23(4). *9 in the future.” repeated be duct could are as- proceeding The costs of this (Ind. Winkler, N.E.2d 90 Matter hearing Respondent. The against sessed 2005). discharged. in appointed this case be that should We conclude is directed to of this Court Clerk period for a of at least suspended opinion this to the give notice of required go through months and officer, a parties respective or their until she received distribution from the attorneys, entitled estate. This enabled M.L. to Re- and to all other entities retain spondent immediately potentially Discipline under Admission and com- to notice 23(3)(d). plex lengthy litigation obli- direct- and The Clerk is further Rule a gation point until future when web- funds post opinion this to the Court’s ed to Thus, from the estate would be available. site, directed to and Thomson Reuters is my contrary colleagues I am of copy opinion a in the bound the view publish this simply nothing in of this decisions. there is the record volumes Court’s suppоrt the conclusion that the contin- J., SHEPARD, C.J., DICKSON, gent agreement in this case was unrea- SULLIVAN, J., concur. initially sonable when entered. In essence did not agreement “make an RUCKER, J., in part dissents for ... an fee.” unreasonable opinion. separate my colleagues point As out evi- there is DAVID, J., in did not this participate dence supporting of record the conclusion case. may that Respondent have violated Rule 1.5(a) “charging] or un- collecting] an RUCKER, Justice, part. dissenting reasonable fee.” But I makе two observa- Because there is insufficient evidence to Hearing tions: Officer no made a violation of Indiana Professional support findings or conclusions in regard, this 1.5(a), Rule and because the sanc- Conduct (2) more importantly Commission nev- imposed on the is based charges against Respondent alleg- er filed part charged by on a violation not ing provision a violation of this of the Rule. Commission, respectfully I dissent. To that “Respondent conclude violated Professional Rule Indiаna Conduct 1.5(a) by charging Rule an unreasonable 1.5(a) provides in relevant “A part, fee” Op. question at decides outside for, agreement charge, not make an shall our scope review and violates (cid:127) In this or collect unreasonable fee.” right to fundamental due alleged case Commission process. Hearing Officer vi- found that Concluding Respondent did not violate provision by “negotiating olated Indiana Professional Conduct Rule entering contingency agreement into a 1.5(а) charge most serious would —the —I non-recovery”
when faced no risk of [M.L.] impose days a sanction of 90 from in the estate matter. practice remaining of law for the viola-
Although the little evidence indicates 1.4(a)(4) (failure tions: Rule possibility nothing M.L. would receive information); with reasonable estate, still, (failure there were number timely withdraw complicated disputes the es- regarding (failure 1.16(d) appearance); and Rule tate, M.L. told the estate to return M.L.’s file after dis- being rapidly by misman- was diminished charged). Thus, of M.L.’s
agement. the amount inheritance uncertain. More-
eventual was
over, for the con- part consideration
tingent nothing, would owe him even the
that M.L. fee, component of his unless