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Monday, November 14, 2011

Ind. Decisions - Must-read disciplinary opinion posted today, dated Nov. 10th

In re James E. Chovanec is a 3-page, 3-2 order. However, the two dissenting justices and the concurring justice write that the agreed discipline is insufficient. The Court suspends Respondent from the practice of law in this state for a period of not less than one year, without automatic reinstatement, beginning December 16, 2011. From the order, signed by Chief Justice Shepard:

In Respondent's representation of debtors in bankruptcy, his secretary routinely prepared and signed his name to petitions and other papers filed in the cases, even though the bankruptcy rules require an attorney of record to make certain certifications about the filings and to sign pleadings, motions, and most other documents presented to the court. See Bankruptcy Rule 9011(a) and (b).

When Respondent's secretary mistakenly filed a bankruptcy petition in the Northern District of Indiana rather than in the Southern District, his secretary signed and filed a motion to dismiss. Bankruptcy Judge Grant set the motion for hearing on July 18, 2005. Respondent failed to appear at the hearing and at two subsequent hearings to show cause why he should not be held in contempt. On September 20, 2005, Judge Grant found Respondent in contempt, fined him $1,000, and prohibited him from filing any more bankruptcies in the Northern District until he petitioned for reinstatement with Chief Judge Dees. The following day, Respondent filed ten more bankruptcy cases in the Northern District. Judge Grant issued another show cause order and set it for hearing on October 12, 2005.

On September 23, 2005, Respondent filed a petition for reinstatement with Judge Grant, who transferred it to Judge Dees. Judge Dees granted Respondent limited relief, allowing him to continue with cases for which he had already been retained. Respondent then failed to appear at the October 12, 2005, show cause hearing. Judge Grant again found Respondent in contempt and prohibited him from representing any client in the Northern District until he paid a $500 fine and successfully petitioned for reinstatement. * * *

Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

  • 3.3(a): Knowingly making false statements to a tribunal (through his secretary).
  • 3.4(c): Knowingly disobeying an obligation under the rules of a tribunal.
  • 5.3(b): Failure to make reasonable efforts to ensure that the conduct of a nonlawyer employee over whom the lawyer has direct supervisory authority is compatible with the professional obligations of the lawyer.
  • 5.3(c): Ordering or ratifying the misconduct of nonlawyer assistants, or failing to take reasonable remedial action with respect to the misconduct of nonlawyer assistants under the lawyer's supervision.
* * *

Dickson and Rucker, JJ., concur.

Sullivan, J., concurs only because this matter was submitted to this Court pursuant to a conditional agreement, noting that he would have voted for more severe discipline had this matter been submitted without an agreement.

Shepard, C.J., and David, J., dissent, believing that the agreed discipline is insufficient for the misconduct admitted.

ILB: Note that although the CJ's signature is on the order, the end of the document shows him in dissent.

Posted by Marcia Oddi on November 14, 2011 11:38 AM
Posted to Ind. Sup.Ct. Decisions