*1 TROTTER, Appellant, Stephen D.
Defendant, NELSON, Appellee-Plaintiff.
Lesa
No. 57A05-9412-CV-472. Appeals of Indiana.
Court
Nov. *2 argues agreement
Trotter
that
violates
7.38(f)
Rule
of the Rules of Professional Con-
duct. He maintains that a violation of Rule
repugnant
public policy
is
and ren-
Grimm, Auburn,
Bentley
Appel-
Kurt
for
ders the contract unenforceable. Trotter as-
lant.
illegality
serts the
of the contract as an affir-
argues
mative defense to this action and
that
OPINION
agreement's
illegality
entitles him to
judgment as a
Consequently,
matter of law.
SHARPNACK,
Judge.
Chief
argues,
he
trial
denying
court erred in
interlocutory
This case comes to us on
summary judgment.
his
for
motion
We dis-
appeal. The sole issue rаised is whether a
agree.
splitting agreement
fee
Stephen
applying
In
our standard of review
Trotter,
lawyer,
nonlawyer
and his
we must first consider Nelson's failure to
is,
therefore,
ee violates
and
appellee's
submit an
brief.
In such a situa
appeals
unenforceable. Trotter
the denial of
tion, this court need not undertake the bur
partial summary judgment by the trial court
developing arguments
den of
for Nelson.
on the issue of breach of contract. We af-
Applying
stringent
a less
standard of review
firm.
respect
showings
errоr,
with
of reversible
attorney
an
practice
Trotter
Hcensed to
appellant
reverse the lower court if
law in Indiana. Lesa Nelson is Trotter's
prima
can establish
error. Fisher v.
facie
employee
former
who worked for him from
(1986),
Board
Ind.App.,
Schоol Trustees
of
July
until
the end of 1989. Nelson is
626,
facie,
514 N.E.2d
628. Prima
in this
practice
jurisdic-
not
in any
admitted to
law
context,
sight,
is defined
"at
first
on first
tion.
appearance, or on the face of it."
Johnson
County Rural Elec. v. Burnell
Ind.
alleges
Nelson
and
she
Trotter had an
App.,
989,
484 N.E.2d
apрel
991. Where an
agreement, beginning
early
in
1987. This
burden,
lant is unable to meet such a
we will
agreement provided
pay
that Trotter would
(1986), Ind.App.,
affirm. Blair v. Emmert
percent
any money
Nelson five
received
769, 771,
495 N.E.2d
trans.
personal
injury
for
by
cases referred
Nelson
denied.
agree-
someone on her behalf. Under the
ment,
Next, we must address our
pay
Trotter would
Nelson
standard of
when she
summary judgment.
review for denials of
referred cases which
"result[ed]
the estab-
Initially,
by
we note that we are bound
attorney-client
lishment of an
relationship
City
sаme standard as the trial court.
with the Defendant
resulted]
(1990), Ind.,
Evansville v. Moore
563 N.E.2d
recovery
attorneys
fees for the benefit of
Summary judgment
proper only
113.
Record, pp.
the Deféndant."
32-33. Nelson
genuine
where there is no
as to
issue
charging
initiated this
suit
Trotter with
moving party
material fact and the
is entitled
by
paying
breach of contract
her.
judgment
as a matter of law. Ed Wiers
Additionally,
request
Nelson directed a
for
Co.,
Trucking
Ind.App.,
ma
v. Pfaff
investigation
Supreme
Disciplin-
Court
may only
hold the much of Trotter devotes his him own violation of the allow to use his analyzing supports brief to case law which lability, a defense to civil We are Rules as if thаt contracts will be void his contention unwilling to do so. they Trotter cites a num- violate a statute. including Kaszuba and ber of cases Hoffman.
The Rules of Professional Conduct
attorneys. The
govern the conduct of
Code
holding in
Although Trotter
relies on our
governed
Resрonsibility
at
of Professional
Kaszuba,
judgment
by
our
was vacated
the
torney conduct until 1987 when the Rules
supreme
Kaszuba v. Zientara
court.
replaced the Code. Deuitch
Mathes
vacated,
Ind.App., 495 N.E.2d
Ind.App.,
310 n.
511 N.E.2d
1, reh'g denied.
had held that a
N.E.2d
We
preamble
The
trans. denied.
contract
two Indiana residents
to
part:
to the Rules states
lottery
purchase an Illinois
ticket was unen-
give
a
rise to
"Violationof Rule should
it
Indiana's statu
foreeable because
violated
a cause of action nor should
create
tory prohibition against gambling and the
duty
that a
has been
presumption
Kaszuba,
public
it.
policy behind
designed
pro-
are
to
breached. The Rules
supreme
that
the
at 763. The
court found
guidance
lawyers
provide a
vide
to
and to
by invalidating
public did not benefit
the
regulating
through
сonduct
structure for
agreement was not evil
contract and that the
They
disciplinary agencies.
are not de-
Kaszuba,
many against courts have cautioned reck- Finally, we are not fearful that our in condemning *4 being lessness contracts as today prece decision will create undesirable public in policy. policy, violation of Public tempting may dent. However it be for a said, vague some courts have is a term of lawyer engage splitting arrange in a fee mеaning. and uncertain ...'" ment, our decision here should not be taken 304, v. Butler Schornick 205 Ind. 185 to condone such actions. While the Rules of 111, 112-113, reh'g (quoting N.E. denied may Professional Conduct not serve as the Hogston v. Bell 185 Ind. 112 N.E. lability, they basis for civil continue to serve 883). supreme The court has determined disciplinary as the basis for action of an power the to invalidate a contract on Thus, attorney. attorney engaging in a policy grounds public should be used careful practice subject, appropriate such a in is ly only in and cases "free from doubt." Id. cases, discipline supreme full the the Additionally, in whenever a court considers court, including disbarment from the contract, validating always a the court must profession. weigh parties' the freedom to contract. All Accordingly,we do not find the contract to (1985), Ind., state Insurance Co. v. Boles be unenforceable as a matter of law. There- Thus, N.E.2d a whether contract fore, properly the trial court denied Trotter's public policy question violates is a of law partial summary judgment. motion for upon us tо determine based all circum the reasons, foregoing judg- For all of the the Stampco stances. Construction v. Co. Guf ment is affirmed. fey Ind.App., 572 N.E.2d AFFIRMED. However, where there is not a clear manifes public policy, tation of will invalidate a RUCKER, J., concurs. only tendency injurе
contract if it has the public, contrary public good, the to the SULLIVAN, J., concurs in result with policy good is inconsistent with sound opinion. (1994), Ind., morals. v. Straub B.M.T. SULLIVAN, 597, 599, Judge, concurring in N.E.2d result. denied. considering majority In opinion all of the circumstances of The notes that: "an attor- case, ney engaging splitting arrangement] this we find that the Trotter-Nelson in [a fee cases, contrary subject, appropriate contract is not in as a to the full and, therefore, court, discipline including matter of law is enforceable. determination, making primary lеgal profession." Op. In this from disbarment course, clearly focus is whether there is a delineated at 429. that avenue Of is foreclosed public policy. Disciplinary Our review of Indiana case this case because our Com- already law and statutes convinсes us that no such mission has determined that the eth- addition, policy parties complaint clear exists. ics "was without merit" and that they complaint are free to contract as see fit. The did "not raise a substantial govern question Rules of at- which would warrant Professional Conduct do misconduct conduct, torney they explicitly disciplinary at 51. but exclude a action." Record Given controversy, violation of the rules as a basis for civil the nature of the the Commis- liability. necessarily See Rules of Prof.Cond.Pmbl. sion's determination сoncluded denying the motion for court did not err agreement. If there no such that there was face, judgment. would, partial summary its agreement, it on were such an Profession- of the Rules of violate Rule
al Conduct. may, the factual determina
Be that as bearing no by the Commission has
tion made alleged susceptible to facts
upon the proceeding civil for breach proof MARTIN, Appellant-Defendant, Cornelius reason, agree I that "for For this contract.1 only," appeal "as purposes of this splitting agreement existed that a fee sume Indiana, Appellee-Plaintiff. STATE of Op. parties." at 428. 49A02-9505-PC-284. No. in- majority today holds that The decision Apрeals of Indiana. Court of splitting contract does validation of this fee public good and that to the not further the Nov. public contrary, invalidation would "harm 9, 1996. Transfer Denied Jan. Nelson, nonlawyer, by denying benefit *5 bargain." Op. of her at The decision acceptаble public policy,
approves, as within
agreements arrangements which revolve chasing"
around "ambulance legal repre- agents for solicitation of
ment of says diminishing integrity It
sentation. profession acceptable to the citizens
of the long non-lawyer who
of Indiana so respectfully I
benefits from the conduct.
disagree analysis with analysis right persons
and that
freely contract.
Nevertheless, upon authority of Kaszuba v. (1987) Ind., 1, reh'g
Zientara compelled I to concur in result. am an Indiana
That case involved lottery activity, though
concerning which le Illinois, illegal contrary to the
gal in was public policy of Indiana. The court held
then contract, though contrary to Indiana
that the
public policy, was nevertheless enforceable contemplated conduct
because the basic the con
the contract would be where occurred. Thus before Indiana's consti
duct pub changed which
tutional amendment approved court con policy,
lic our formerly illegal thought to be and unen
duct rationale, Upon I am able to
forceable. the trial
concur the determination liability, to these rules as Scope the Rules Conduct civil but reference 1. The of Professional give applicable evidence of the standard of care is not states: "Violation of a Rulе should not rise Conversely, prohibited." a determination that action nor it create to a cause of should presumption legal duty there has not been a violation of the Rules does that a has been breached. give designed a defense to a civil action. ... to be a basis for rise to The Rules are