*1 expressed Court of Appeals concern that Gary Police Matter of Daniel B. never searched van to STEPHENS, Respondent.
compare with its tires those found at the Drane, park, op. 11-12, slip weight at No. 45S00-0505-DI-244. due this omission is a of specula- matter Supreme Court of Indiana. know, thing tion. One dowe aside from the fact that Drane van drove the earlier May 2007. day, is meeting that Drane’s with Taylor began May late and contin- 439-41.) (Tr. into May
ued 28. at testimony Drane’s own the DNA conclusively prove evidence he had sexual Taylor night intercourse with her on the Testimony murder. Jones Corporal permits and Ross the reasonable inference that the van Drane drove was near parked night
the crime Taylor’s scene on the murder. Photographs Taylor’s body
and review report of the coroner’s permit Taylor reasonable inference was raped in the course of her brutal murder.
If Taylor raped by were in fact someone Drane, evidence,
other than there was no otherwise, scientific suggest or it. There more than sufficient evidence to support both the rape murder and convic- tions.
Conclusion We affirm the trial court.
DICKSON, SULLIVAN, BOEHM, and RUCKER, JJ., concur. (Tr. veracity
tioned the 522-23.) testimony. the remainder of Drane's
149 Respondent public repri- which received mand for violation of Indiana Professional 1.8(a) 1.5(a) for his Conduct Rules fee in a arrangement a client medical with Stephens, In re action. See (Ind.2006) I”). (“Stephens N.E.2d 1256 Pending before Court is the “Verified Motion for Intervene Ap- Leave to and/or pear as Amicus the Indiana Curiae Lawyers Request Trial Association and (“Motion Intervene”) Stay” filed on Sep- 11, 2006, urging tember Court re- Respondent its consider conclusion improperly attempted had to circumvent the limitation on fees recoverable under the Malpractice Indiana Medical Act (“MMA”) Compensation from the Patient (“Fund”). now permits Fund The Court Lawyers the Indiana Trial Association (“ITLA”) to opin- intervene and issues this contingent fees addressing ion malpractice cases.
Background
I.
At the
to this
times relevant
provided
patient’s damages
MMA
Gonzalez, Merrillville, IN,
Maree
Attor-
$500,000,
capped
were
initial
ney for
Respondent.
$100,000
paid
were to be
the health
Mulvaney,
Quay-Smith,
Karl L.
Nana
insurer,
provider
damages
care
or its
IN, Attorneys for
Indianapolis,
Amicus
$100,000
paid
in excess
were
be
from
Curiae,
Lawyers
Trial
Indiana
Association.
(as
provided
the Fund. The MMA also
Lundberg,
R.
Executive
Donald
Secre-
today)
lawyer’s recovery
does
that a
Anderson,
tary, Gregory N.
Staff Attor-
(and is)
the Fund was
limited to 15% of the
IN,
ney,
Attorneys
Indianapolis,
for the
amount the
recovers from the Fund.
client
Supreme
Disciplinary
Indiana
Com-
Respondent
§
Ind.Code
34-18-18-1.
mission.
agreement
into
entered
client in a medical
with
case
Attorney Discipline Action
provided
with a one-third
him
recovered,
accom-
calculated
all sums
Opinion
on Motion
Intervene
plished by
agree
client
having the
Lawyers
Trial
the Indiana
$100,000
the first
Respondent’s fee from
Association
plus
gener-
recovered
15%
PER CURIAM.
equal
would
ated from
2006,
this Court
one-third
the total
addi-
August
approved
On
tion, Respondent
renegotiated the fee
Circumstances
later
“Statement of
and Condi-
with the client to include a
Agreement
Discipline”
agreement
tional
Respon-
nonrefundable retainer.
circumvent the limitation on
client
dent did not advise the
to seek inde-
recoverable from
By
the Fund.
order dat-
pendent counsel.
3, 2006,
ed October
par-
Court invited
ticipation by
wishing
entities
to appear as
*3
11, 2006,
August
approved
On
Court
curiae, sending
copy
amicus
of the or-
of
a “Statement
Circumstances
Condi-
representatives
der to
of
following
or-
Agreement
Discipline”
tional
ganizations:
Indiana State Bar Associa-
Respondent
repri-
received a public
which
tion,
Association,
Indianapolis Bar
Defense
of
mand for violation
Indiana Professional
Indiana,
Trial
Counsel
Indiana State
1.5(a) (charging
Rules
an unrea-
Conduct
Association,
Medical
Department
Indiana
1.8(a)
fee)
(acquiring a pecuni-
sonable
Insurance,
Hospital
Indiana
and Health
ary
to the client
interest adverse
without
Association,
Chiroprac-
and Indiana State
client).
consent from the
written
See Ste-
tic Association.
organiza-
None
these
I,
(Ind.2006).
phens
$1,250,000. § See Ind.Code 34-18-14- attempt Respondent’s 3(a)(3). avoid the Qualified A liability Provider’s statutory Compensation limit on Patient occurrence of is now limited attorney wholly fees was improp- $250,000. § See Ind.Code 34-18-14- er. only respondent did Not 3(b). seek to Any remaining amount due from a language statute, avoid the clear judgment or paid settlement is to be sought but he also to do so suggest- 34-18-14-3(c). the Fund. § See Ind.Code ing an arrangement, unreasonable fee The MMA lawyer’s limits a recovery to thereby violating the Rules Profes- 15% of the amount the client recovers from future, sional Conduct. violations Fund, 34-18-18-1, § see Ind.Code but likely this nature are result specifies no limit fees recov- discipline that more serious. ered from the amount a client receives Qualified from a (citation omitted). Provider. Id. at 1257-58 Intervene, In its Motion to urges ITLA In addressing early constitutional chal- the Court to reconsider its conclusion lenges MMA, to the this Court noted Respondent had improperly attempted to Legislature’s perception of a health care on, part, by In this case we brought substantial examine limitation crisis inability mal- providers’ adequate imposed upon to obtain fees for constitu- coverage at practice tional alone. purposes insurance We find that prices. there is a relationship direct between upon limitation Legislature’s ap-
According limitation on fees. The total praisal, implicated these conditions injured amount pa- recoverable community in vital interests of the tient was limited. The limitation on at- availability professional services torney fees follows as a naturally means other health care physicians already protecting diminished viders .... *4 compensation due claimants from fur- judgments as its the With these basis improvident ther erosion due to or li- voluntary state-sponsored Act created legal unreasonable contracts for ser- ability insurance for doctors and other vices. a providers, patient care created health fund, specific by The limitation
compensation implanted took measures to injuries Legislature the does prevent through the not seem to be one patients seriously ability which will providers, impede care and negligence health injured patient subjected negligence against employ claims effective It not all special care controls counsel. does effect at providers health enforceability of re- contracts made limiting patient remedies. garding paid fees to be from the first Inc., Hosp., v. Johnson St. Vincent 273 $100,000 $250,000] recovery, [now 374, 379-80, 585, Ind. 590 that amount is not received from the (1980). However, compensation fund. con- in Johnson was to the challenge One in providing tracts for fees excess of the cap lawyer’s recovery 15% on the from compensa- limitation on awards from the a from Fund. amount client receives tion fund are not enforceable. The lim- This Court found no constitutional infirmi- practice legal itation will in result in ty. ranging between about 20% to legislative purpose of this restric- gener- the total 35% of As prevent attorneys representing tion is to proposition al fees at this level are com- plaintiffs receiving inordinately from liti- monly considered reasonable in tort contingent large arrange- fees where gation. recognize ments have been made. We (citations Id. at at 602-03 N.E.2d plaintiffs’ attorneys frequently added). omitted, emphasis energetically make arduous efforts on behalf The Disciplinary argues of their clients return for fees Commission accurately which on the amount from the cannot be character- the fee However, 15%, on inordinately large. ized as limited to and the fee recovery provider has also noted that abuses of from the is limited to a this Court If that contingent fee contracts have oc- on amount. parties aggrieved assuming curred and that were the the fee clearly provider larger from than arrangements excessive will re- amount 15%, increases, protection recovery ceive the of the total courts. Con- as the tingent percentage contracts are sanctioned fee becomes smaller Responsibility range Code of total. The Professional 20%-35% described Johnson long so as the fee is that the Court assumed reasonable. indicates (3) fee of 40% on the amounts customarily charged the fee in the client, directly locality services; recovered legal 15% for similar on the amounts recovered from the Fund. (4) the amount involved and the re- assumption, applying On that the limits of obtained; sults recovery place the time was Johnson (5) imposed by the time limitations decided, the maximum total circumstances; the client or $500,000 produce would fee of 15% of (6) length the nature and of the $400,000 $100,000. plus That is 40% client; relationship fessional with the $60,000 $40,000, which plus precisely (7) $500,000. the experience, reputation, 20% of At the other end scale, ability lawyer lawyers or total percentage per- services; $125,000, $25,000 forming only of which would come Fund, produce would a fee of (8) whether the fee or is fixed contin- $3,750, plus which is precisely 35% gent. $125,000. 1.5(a) (em- Ind. Professional Conduct Rule assumption The same underlies our *5 added). phasis Clients are further pro- opinions Benjamin, in In re by requirement tected the contingent (Ind.1999), Stephens 1111 I. and In neither agreements clearly fee be disclosed proceedings those was the matter di- writing signed by and the client. See Prof. addressed, however, rectly in Benja- 1.5(c). rules, coupled Cond. R. These with if, min the fee was unreasonable even Johnson, attorney may ethically mean an argues, ITLA a 40% fee is often reason- charge a percentage reasonable of the able, and can be calculated as 15% on the recovery client’s non-Fund in order to re- recovery, plus percentage Fund whatever a cover reasonable total fee. recovery of the provider from the is re- C. Precedent. quired produce to a fee 40% the total recovery. Clearly, charging an ex- fee in of that cess allowed a regula- statute or B. The Indiana Rules of Professional tion also an constitutes ethical violation. Conduct. In Maley, (Ind.1996), In re 674 544 N.E.2d attorney fees, respect With the Rules this imposed public reprimand of Professional Conduct state: an who retained fee in excess of lawyer agree- A shall not make an the fee awarded to him the Worker’s charge, for, ment or an collect unrea- Compensation according Board to pre- an sonable fee or unreasonable amount sumptive limits established Indiana expenses. The factors to be consid- Compensation regulations. Worker’s ered in determining the reasonableness Biel, v. also Bauer 132 Ind.App. 177 of a fee the following: include (1961). N.E.2d 269 The complication (1) required, the time and labor the medical malpractice cases is that the fee novelty difficulty questions of the only from one of two sources of recovery is involved, requisite per- skill legislatively capped. The issue is what legal form the properly; service point attorney charged to the non- (2) likelihood, apparent if recovery the Fund produc cross the line from client, acceptance that the par- of the ing total fee circumventing employment ticular will preclude oth- Legislature’s intent to restrict the fees employment by er lawyer; recoverable from the Fund.
153 case, current this Court relevance to the Benjamin, 718 N.E.2d re In In (Ind.1999), stated: Court considered contingent a medical
priety of attempted to retain as respondent [T]he of Professional Con- the Rules fee under $100,000 $100,000 of the settle- his the facts simplifying duct. hospital, from the defendant ment somewhat, arrange- recovery percent to 15 addition attorney, the by the interpreted ment as Compensation the Indiana Patient from 40% of non-Fund would retain to be an approach find that Fund. We recovery no from if were recovery there attempt lim- to circumvent statute paid damages, Fund also Fund. If the iting allowed 100% of the non- attorney would retain as his fee unrea- By retaining Fund. portion. 15% the Fund portion portion from sonable reached at 1112. A settlement was See id. hospital, the settlement with the client would receive under which effectively have offset respondent would $100,000 in non-Fund gross amount of on his fee from limitation percent down, $50,000 over money, and the balance the Fund in a structured settlement. years several added). 2 (emphasis n. As Id. at 1113 $40,000 attorney retained noted, Benjamin attempted already installment, thereby claiming first present 40% of the to collect exceeded present substantially than 40% of the more recovery, and also was value of the total the provider. with value of settlement explained agreement, all in his fee not at Later, client under which the a settlement *6 independent constituted of which both $335,000 final- from the Fund was received finding a violation of the Rules grounds for $134,000, ized, attorney retained and the Responsibility. of Professional 40%, for payment, the Fund was of which $174,000, again more than a total fee of Proceedings Rehearing. D. on value of the total recov- present 40% of the I, Stephens to ITLA response In challenged this dis- the client ery. After rehearing. he intervene and seek tribution, attorney that moved to calculated form, argued ITLA that until por- capsule of the non-Fund entitled to 100% was ($100,000) of Fund had not made clear plus por- 15% the I the Court Stephens tion $150,250. ($50,250), of view for a total fee adopting tion that it was Commission’s to attorney’s offer client refused the on reasonable limitations of the MMA’s $23,750, parties eventually the testimony return and extensive presented ITLA fees. at- a under which the reached settlement support of its view by affidavit $75,000 to the torney returned about the abil significantly impair will so limited at 1112-13. See id. client. present their cases. ity of claimants to malpractice that a medical ITLA notes public rep- agreed issued an This Court substantially more re requires claim often ethical to the several rimand sources, knowledge, preparation and than violations, failing set forth the including to malpractice tort. A medical a conventional calculating fees in the complete method of presentation potentially claim involves retaining his entire agreement, written Specifical by a trial. panel, to a followed the first fee from non-Fund claims re many malpractice ly, medical and retain- payment, non-Fund settlement testimony specialized and quire expert than that allowed ing greater part on the knowledge recovery from the from the client’s statute tort beyond conventional the demands particular Of Fund. id. at 1113-14. argues ITLA litigation. such claims clarification of the fee issue from intake, usually screening, extensive involve the Executive Director of the Commission preliminary investigation and and consul- and the State Al- Court Administrator. tation; resource-intensive medical re- though dispute there some about what search, discovery, and consultation with transpired, attorneys ITLA asserts be- witnesses; expert preliminary submission ethically permissible lieved was to enter panel to a medical review typically “sliding into arrangement, scale” fee un- of pages deposition involves hundreds der percent which the retained from the affidavits, testimony, articles, medical and recovery vary depending non-Fund could records, pre- medical and inherent adds recovery on the amount of Fund to delay years; suit two to three uncom- duce a total reasonable fee. difficulty reaching mon settlements ITLA many states past current eases; many typical litiga- without trial agreements, medical in- malpractice fee $20,000 $30,000 expense tion for cases cluding initially the one employed by Re- trial, $40,000 that settle without spondent in the current have been $65,000 upwards for cases that go to sliding based on this concept, scale often trial; very and a likeli- modest statistical providing fee, 35% overall accom- Citing hood eventual success. data plished by a 15% fee from the Fund recov- years 1975-2005,1 thirty based ery plus an amount from the non- only proposed ITLA claims that 10.2% of needed to make total complaints result in a panel medical review equal to 35% the total finding malpractice, only of medical (“Sliding Arrangement”).2 Scale Fee any payment 13.8% received argues, ITLA backed affidavits of medi- Fund. As a result of these factors and malpractice lawyers, cal that a Sliding others, ITLA relatively contends Arrangement Scale Fee attorneys small equipped number are light expense, time, and risk attend- claim, handle medical and it ant representing entirely ap- reasonable to allow a fee *7 plaintiffs. It seeks assurance that the proximating one-third of the entire recov- of Rules Professional Conduct are not vio- ery to the if it plaintiff, even is calculated by arrangement lated a fee produces that statutorily the applying limited to 15% a total fee of 20% to 35% of the total the Fund recovery, greater and much percentage recovery to the from the argues vider or its insurer. ITLA Sliding Under Arrange- this Scale Fee to permit refusal such a fee will result ment, the attorney total fee could include denying representation to clients with 100% recovery higher of non-Fund for to- cases, more difficult or forcing the clients tal example, recoveries. For if the total accept to inexperienced or unqualified (the recovery $1,250,000 were maximum counsel. currently permitted by MMA), the the Benjamin ITLA asserts that after was maximum possible total attorney fee would decided, a group $400,000, of medical be calculated taking 100% of lawyers, including members, sought ($250,000) ITLA recovery the plus non-Fund 15% 1. Compensation See Indiana Patient’s Although Fund 2. Sliding Arrangement Scale Fee (Ind. Report Dept. figures, fig- Annual could be for 2005 based on different of Ins. these 2006), purpose will ures be used the App’x. at of discussion ITLA’s 124. opinion. in this Likewise, ($150,000). attorney be reasonable. $1,000,000 range of of no “safe harbor” would be 32% there can be resulting fee the recovery, unique which is within fees. Each case permissible the total terms, Under Johnson. range approved own con- must be evaluated on its fee Arrangement, Sliding Scale Fee of complexity as the sidering such factors highest re- from 32% on the range would issues, finding the risk the medical 35%, $1,250,000 assuming covery of dispute over liability, degree no 40%, recov- 35%, targeted total not tried, fully the case is damages, whether Acknowledging that fees ery.3 expenses, anticipated litigation etc. not legislatively are non-Fund said, however, can the Court offer That argues the Commission capped, attorneys seeking to ensure guidance for must be reasonable of these fees amount ethically are agreements their fee reg- statutory of themselves. “Absent sound. recovery, from the Fund ulation of the fee guidance That is informed several contin- argue that a one-third would few First, constitutionality the other principles. On gent fee is unreasonable. credibly argue that hand, no be ques- one could fee limitation could the MMA’s (or contingent even a contingent 100% if in a manner that applied it is tioned 50%) Dis- reasonable.” in excess ability in- “seriously impede[s] on Opening Brief ciplinary Commission’s employ effective counsel.” jured patient at 20. The Com- of Fee Reasonableness Johnson, at 602. challenge ITLA’s directly not
mission does Second, limited Legislature complexity and extent claims that 15%, but it left fees from the Fund justifies litigation of the reasonableness determination range least in the same compensation at determine under total for this litigation, tort and the Com- conventional if a Rules. Even the Professional Conduct concedes that a 33 mission 1/3% malpractice case total fee in medical in conventional ordinarily reasonable fee is recovery, of the non-Fund includes 100% understand- The Commission tort cases. money on Fund legislative limit still and to our own ably points to the statute cap total fee acts as effective its discussing support it in decisions above, higher ranges. As demonstrated position. Sliding Arrangement, Scale Fee a Reasonable Total E. Guidance fully tries a if an undertakes Malpractice Actions. Fee in Medical risky *8 and medical hotly disputed, complex, case, winning in succeeds malpractice the to a numerical answer Although $1,250,000 the verdict of a maximum might have question of reasonableness $400,000, or client, is the maximum fee possible put not utility, simply it some is the total requirement that 32% of ethical a number on the note, however, the is that if fee We malpractice if here. contends that the 3. ITLA also settlement, part through substantially a material before paid structured collected claim settlement, vary lowest Benjamin will and the the overall numbers structured of the as- than This could be less 30%. total fee spelled in the fee out in detail that must be the fee reasonable collect sumes fee present value of the agreement, and the a settlement gross the amount of based on present the in relation to be reasonable must time, present value. paid rather than the over Hailey, 792 In re of settlement. See value present Stephens’s the issue case does not (Ind.2003). N.E.2d 851 Benjamin, we address it present do not in Third, Johnson, in suggested any, may contin- if paid part be in from the Fund of gent up sources, to 35% com- and in part are from other indicate monly in MMA litiga- lawyer’s considered reasonable tort limits the fee at- complex governed part cases tributable to that paid tion. not 15%,4 MMA, higher an from the Fund to contingent clearly explain even fee reasonable, might operation Sliding of the though be considered we Scale Fee Arrangement statutory in relation to agree with the that 40% this Commission requirement. ordinarily say the maximum. cannot We employment Sliding of the Scale Fee Finally, all in types fees of all manner of Arrangement yield contingent fee in cases must be based all in range is unreasonable all 32-35% factors listed in Professional Conduct Rule malpractice medical To cases. the extent 1.5(a). malpractice cases, In some medical Johnson, Benjamin, Stephens or sug- I a total fee of bemay unreasonably 32-35% otherwise, gests they are overruled. high. The 20 range to 35% mentioned in Fourth, suggests Indiana law Johnson that a lower high regard may holds fee be is, more parties appropriate the freedom to enter con- some cases. It into course, permissible making. tracts of their own to construct fee ar- See Fresh Cut, Fazli, rangements Inc. the percentage v. 1129- escalate (Ind.1995). recovery, depending stage If an on the and client informed, an arms-length, fully proceeding prepanel, pre-discovery, pre- enter into — trial, freely negotiated etc.—at which agreement along it is achieved. And with Sliding respect the lines rules Arrange- Scale Fee to disbursement of ment, attorney fees in strong this would be a indication case structured resulting settlements remain is reasonable and unaffected However, opinion. thus ethical. the Rules of Pro- impose require- fessional special Conduct Appropriate Respon- F. Sanction ments with respect contingent fees. dent. 1.5(c). agreement Prof. R. An Cond. con- taining a Sliding Scale Fee Arrangement In the current ap must clear recovery, make that the client’s proved agreement an Respon- under which Appendix supplied by 4. The ITLA includes an discourage malprac- In order to further example agreement suits, anof that meets this dis- ability tice the Act restricts the of the requirement: closure Attorneys and Clients to enter into nor- Malpractice The Indiana Medical Act agreement mal concerning ("Act”) restricts the amount that can be any paid by amounts the Fund. It restricts for a recovered claim. Attorneys' payments fees on from the Fund patient, regardless severity No to a maximum of 15%. injuries, or the resultant can App'x provisions ITLA's at 147. These $1,250,000. recover more than A doctor or are set acceptable forth to illustrate an meth- provider other health care is not liable for describing od recovery, that the client’s if in excess of amount of com- any, may paid part be from the Fund and *9 pensation. Any judg- amount due from a part in from other sources and that the MMA ment that or settlement is in excess lawyer's limits the part attributable to that liability providers total of all health care recovery paid 15%. paid from the Compensa- Indiana Patients expresses opinion The Court no to the as ("Fund”). tion Fund Act further re- sample agree- reasonableness of the fee in quires presented a claim be to a medi- general proposition ment either as a or as panel cal review before it filed in a court applied case. of law. questions good many important reprimand for viola- answer public dent received 1.5(a) join largely I in the outcome topic. Conduct Rules of Professional tion 1.8(a). of the Indiana because the submissions guidance set forth Under the Association, Lawyers especially the above, Trial appropriate sanc- this remains an affidavits, have been First, brief and the several Respon- several reasons. tion for per so and the curiam tracks arrangement persuasive in agreed dent the defen- request. their And because unreasonable un- particular case was this (and 1.5(a). file against they dants whom claims Rule Re- der Professional Conduct their and related institutions no from this associations asked for relief spondent has outcome) apparent stake in the have no to with Court sees reason concession and the silent, Moreover, Disciplin- our elected to stand sponte. revisit sua ary in the Commission has found itself retain- found that the nonrefundable position noting awkward the interests of Respondent’s agreement provision of er not the General represent, Rule client it does Professional Conduct also violated 1.5(a) Assembly. case and in the circumstances of this Respondent’s agreement second fee 1.8(a). Rule
violated Professional Conduct I, at 1258. Re- Stephens public reprimand therefore spondent’s stands.
III. Conclusion of The In the Matter Honorable John Motion to In- grants The Court ITLA’s HANLEY, Judge F. In the Marion tervene, addresses the issue the reason- Superior Court. ableness of above, cases set forth No. 49S00-0703-JD-86. public reprimand agreed reaffirms Indiana. Supreme Court of Respondent. given 31, May 2007. BOEHM, DICKSON, SULLIVAN, RUCKER, JJ., IN, concur. At- Shroyer, Indianapolis, A. Lowell Hanley, torney Judge. Hon. John F. C.J., SHEPARD, concurs the result IN, Babcock, Indianapolis, At- Meg W. separate opinion. awith on Judicial torney for Commission SHEPARD, Justice, concurring Chief Qualifications. result. today’s per It far from clear that ACTION DISCIPLINARY JUDICIAL represents policy best for de- curiam PER CURIAM. termining fees at the intersec- the Court as This matter comes before malprac- 1.5 and the medical tion of Rule disciplinary action judicial process morphed result of tice This has statute. Commission on brought by the Indiana disciplinary case agreed-sanction from an (“Commission”) Qualifications much like rule- Judicial something into that looks herein, F. against Respondent John many has making, except that it lacked Superior Hanley, Judge of the Marion rule- steps thought good useful Indiana *10 reason, not Court. Article Section making. Partly for this it does