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Friday, August 11, 2006

Ind. Decisions - Supreme Court posts two attorney disciplinary actions

In the Matter of Daniel B. Stephens is a 3-page per curiam decision:

Today, we admonish respondent for his attempt to circumvent the limitation on attorney fees that can be charged for recoveries from the Patient Compensation Fund. This case is before us on a Statement of Circumstances and Conditional Agreement for Discipline tendered by the parties on April 11, 2006, which calls for a public reprimand. We accept the parties’ agreement.
Page 3 has language applicable beyond this disciplinary case:
The nonrefundable retainer provision of respondent’s agreement also violated Prof.Cond.R. 1.5(a). There may be circumstances where a nonrefundable retainer is enforceable, such as where the lawyer is precluded from other representation or where there is guaranteed priority access to the lawyer’s advice, but these types of circumstances are not alleged here. See, Matter of Thonert, 682 N.E.2d 522, 524 (Ind. 1997). By locking a client to a lawyer with a non-refundable retainer, the lawyer chills the client’s right to terminate the representation.

Finally, the respondent’s second fee agreement, which gave respondent a pecuniary inter-est adverse to the client, was obtained without a separate written consent from the client. This conduct violates Prof.Cond.R. 1.8(a) (2002). Unfairly renegotiating a fee agreement is prohibited conduct. Matter of Hefron, 771 N.E.2d 1157 (Ind. 2002).

Respondent’s attempt to avoid the statutory limit on Patient Compensation Fund attorney fees was wholly improper. Not only did respondent seek to avoid the clear language of the stat-ute, but he also sought to do so by suggesting an unreasonable fee arrangement, thereby violating the Rules of Professional Conduct. In the future, violations of this nature are likely to result in discipline that is more serious.

In the Matter of Frederick B. Ettl is a 4-page per curiam decision:
The Disciplinary Commission charged the respondent with violating Indiana Professional Conduct Rule 3.5(b) by engaging in an ex parte communication with a judge. A hearing officer appointed pursuant to Indiana Admission and Discipline Rule 23 heard the matter and filed his findings of fact and conclusions of law, determining that the Commission failed to meet its burden of proof by clear and convincing evidence. The Commission filed a petition for review, respondent filed a brief in opposition, and the Commission replied. The matter is now before us for final determination. Where a party challenges the hearing officer’s report, we review the matter de novo. Final determination of misconduct and sanction rests with this Court. In re Lamb, 686 N.E.2d 113, 114 (Ind. 1997). * * *

In summary, respondent’s failure to provide notice resulted in a prohibited ex parte communication. If the respondent had attempted to notify the husband, but was not able to lo-cate him, then he should have certified, in writing, to the judge the efforts that he had made in that attempt. If respondent did indeed have legitimate reasons for not giving notice, Trial Rule 65(B)(2) required him to certify to the court, in writing, his claim that notice should not be given and the reasons supporting this claim.

Despite the statement of the requirements for obtaining a temporary restraining order set out in In re Anonymous, 786 N.E.2d 1185 (Ind. 2003), respondent, who acknowledges having a copy of that decision on his desk, did not follow its straightforward requirements. There may well have been reasons to dispense with notice in this case, but, if so, respondent did not supply them under oath to the trial court judge. We conclude that the appropriate sanction is a public reprimand.

Posted by Marcia Oddi on August 11, 2006 02:14 PM
Posted to Ind. Sup.Ct. Decisions