Indiana Law Review


Survey of 1995 Developments
in the Law of Professional Responsibility

Kevin P. McGoff*

Introduction

In 1995, the Indiana Supreme Court made substantial changes to the rules
governing lawyers and the practice of law in Indiana.

1 A few of these changes
impact every practicing member of the Indiana Bar because familiarity and
compliance with the rules is imperative. For example, all practitioners will be

affected by the requirement of mandatory continuing legal education hours on the

subject of professional responsibility. The most significant change is, however,
in trust account management. For the first time, Indiana lawyers will be required

to comply with detailed standards for record keeping and administration of their

trust accounts. The rule affecting the administration of trust accounts becomes
effective January 1, 1997, allowing lawyers to become familiar with the
requirements and to take appropriate measures to be in compliance by that date.

The management of lawyer trust accounts will require the implementation of office

procedures and the maintenance of records and, thus, a commitment by lawyers
and law firms to understand the rules and assure they are in compliance.

The court also substantially changed the administration of the attorney
discipline system during the past year. The modifications to Indiana Admission
and Discipline Rule 23 revise the composition of the Disciplinary Commission,

provide a new sanction, empower the Executive Secretary to audit lawyer trust
accounts, and facilitate the discipline of Indiana attorneys who are sanctioned on
a license in foreign jurisdictions.

2
This Article will provide an overview of these

changes. In the past year, the supreme court also amended the Indiana Rules of
Professional Conduct. The most significant modification is Rule 3.6 on trial
publicity, which will be discussed herein. The court also modified Admission and
Discipline Rule 2.1, regarding legal interns, and Admission and Discipline Rule

13, eliminating all of the specific law school course requirements, with the

exception of legal ethics, as a prerequisite to sitting for the Indiana Bar.

In 1995, the supreme court, as in previous years, addressed in written opinions

the discipline of lawyers for a variety of transgressions of the Indiana Rules of

Professional Conduct. There is an unfortunate number of reported opinions and
only those that may be generally helpful to the practitioner are summarized in this
Article.

* Kiefer & McGoff, Indianapolis, Indiana. J.D., 1980, Indiana University School of
Law—Indianapolis. I would like to thank our former law clerk, William Greenway, for his
assistance in the preparation of this Article.

1

.

See, e. g. , INDIANA RULES FOR ADMISSION TO THE BAR AND DISCIPLINE OF ATTORNEYS

(1987) (amended 1995) [hereinafter IND. ADMIS. and Disc.].

2. Ind. Admis. and Disc Rule 23 ( 1 996).



1006 INDIANA LAW REVIEW [Vol. 29: 1005

I. Amendments to Indiana Admission and Discipline Rules

A. Lawyer Trust Accounts

The supreme court added Admission and Discipline Rule 23, section 29,
entitled "Maintenance of Trust Accounts in Approved Financial Institutions;
Overdraft Notification," by order dated December 21, 1995. This section is
effective January 1, 1997, and it impacts all practicing lawyers. In the past, there

have been no detailed standards set forth by the court for the administration of
trust accounts, the keeping of trust account records, and the enforcement of the

requirement that lawyers use only financial institutions that agree to comply with
these rules.

All funds that a lawyer holds in trust must be placed in an account clearly

identified as a "trust" or "escrow" account.
3 The depository institution shall be

informed of the purpose and identity of the account and the account may be
maintained only in financial institutions approved by the disciplinary commission.

4

All funds held in any fiduciary capacity in connection with the representation of

a person or entity, whether as trustee, agent, guardian, executor, or otherwise must

be held in a trust account.
5

Lawyers must maintain and preserve the records of the trust account for a

period of at least five years after the disposition of a matter wherein the trust

account was used.
6
Attorneys are now specifically required to save for this five

year period checkbooks, cancelled checks, check stubs, written withdrawal

authorization, vouchers, ledgers, journals, closing statements, accounting or other

statements of disbursements tendered to clients or other parties with regard to trust

funds, or to maintain similar records that clearly and expressly reflect the date,

amount, source, and explanation for all receipts, withdrawals, deliveries and

disbursements of the funds or other property held in trust.
7

In the event of the dissolution of a partnership or professional corporation of

attorneys, the attorneys must make written arrangements for the maintenance of
the records required by this rule.

8
In the event of the disposition of a law practice,

again, the attorney must make appropriate written arrangements for maintaining
the records required by section 29.

9

The ledger required by section 29 must include a separate record for each

client, trust, or beneficiary, the source of all funds deposited, the names of all

persons for whom the funds are held, the amount of the funds, a description in the
amounts of charges or withdrawals, and the names of all persons to whom funds

3. Id. § 29(a)(1).

4. Id.

5. Id.

6. Id. § 29(a)(2).

7. Id.

8. Id. § 29(a)(8).

9. Id. § 29(a)(9).



1 996] PROFESSIONAL RESPONSIBILITY 1 007

were disbursed.
10

Lawyers may maintain these records by electronic,
photographic, computer, or other media, provided that printed copies can be

produced.
11
Lawyers are advised to seek the counsel of their accountant and attend

continuing legal education programs that have been offered and, will no doubt

continue to be offered in an effort to enlighten lawyers on this new rule and assist
the bar in compliance.

12

The funds maintained in a trust account shall be deposited intact and not
commingled with any other funds belonging to the lawyer or law firm. 13 The

records or deposits must be in sufficient detail so that each item can be identified.
14

The checkbook register alone will not be sufficient to comply with this rule, and

lawyers will have to maintain more sophisticated trust account records or risk non-

compliance with section 29. All withdrawals from the lawyer trust account must

be based on a written withdrawal authorization that sets forth the amount of the
withdrawal, as well as the purpose of the withdrawal and the payee.

15 The
authorization must contain a signed approval of an attorney and shall be made only
by check payable to a named payee.

16 No trust check may be made to "cash" and
any wire transfers from a trust account shall be authorized by written withdrawal

authorization, evidenced by a document from a financial institution that indicates

the date of the transfer, the amount, and the payee.
17

The requirement that lawyers maintain trust accounts only in financial
institutions approved by the disciplinary commission is a method for monitoring

the requirement that banks notify the commission of overdrafts on trust accounts.

A financial institution that desires to be a depository for trust funds must file an
agreement with the disciplinary commission stating that it will report to the

commission whenever a withdrawal is presented against a trust or escrow account

with insufficient funds.
18

This reporting requirement is mandatory, regardless of

whether the instrument is honored by the bank pursuant to an overdraft

agreement.
19 The commission will set forth rules governing the approval and

termination of financial institutions and will annually publish a list naming these

approved financial institutions.
20

The overdraft notification agreement entered into between the commission and

financial institutions must provide that in the .case of a dishonored instrument, the

10. Id. § 29(a)(3).

11. W.§ 29(a)(7).

1 2. See, e.g. , Nuts and Bolts of Client Trust Account Management, in INDIANA CONTINUING

LEGAL EDUCATION FORUM (February 1996); Ethically Charging, Banking and Securing Your Fees,

in Indiana Continuing Legal Education Forum (April 1995).

13. Ind. Admis. and Disc. Rule 23, § 29(a)(4) (1996).

14. Id.

15. JUL 8 29(a)(5).

16. Id.

17. Id.

18. /</. § 29(b).

19. Id.

20. Id.



1 008 INDIANA LAW REVIEW [Vol. 29: 1 005

report shall be identical to the overdraft notice typically forwarded to a depositor,

including a copy of the dishonored instrument.
21

In the instance where checks are
presented without sufficient funds to cover, but are honored by the institution, the
notification must identify the bank, the attorney or law firm, the account number,

date of presentation for payment, date paid, and the amount of the overdraft. 22

These reports by financial institutions must be made to the commission within five
banking days of the date of presentment.

23

The Executive Secretary may audit the accuracy and integrity of all trust
accounts maintained by the lawyer,

24
if the Executive Secretary has probable cause

to believe that a lawyer's trust account has been mishandled or not properly

maintained pursuant to Admission and Discipline Rule 23, section 29 and has the

approval of the Commission. This new section to Admission and Discipline Rule
23 does not authorize random audits of lawyer trust accounts. It only permits a
review of a lawyer's trust account upon a determination by the Executive Secretary

and the Commission that there is probable cause to believe that funds in a trust
account have been improperly maintained or handled.

B. Continuing Legal Education

The second modification of the disciplinary rules that impacts the entire
Indiana Bar is the modification of Admission and Discipline Rule 29, regarding

mandatory continuing legal education. In the course of each three year CLE cycle,
every lawyer must now complete at least three hours of approved continuing legal
education in professional responsibility.

25
These three CLE hours may be

integrated into a substantive program or offered as a free-standing program.
26

C Suspension for Child Support Delinquency

The 1995 General Assembly enacted provisions to assist in the enforcement

of child support orders, whereby professional licenses, including those of lawyers,

are subject to suspension upon a finding by a court having jurisdiction over child

support matters that an individual has intentionally violated a child support order.
27

The Indiana Supreme Court, in referencing this newly enacted statute, modified
the disciplinary rules to provide for the suspension of a lawyer who has been found
to be delinquent in the payment of child support as a result of an intentional

violation of an order for support. Upon the Commission's receipt of an order from

21. Id. § 29(c)(1).

22. Id. § 29(c)(2).

23. Id. § 29(d).

24. Id. § 30.

25. Ind. Admis. and Disc. Rule 29, § 3(a) ( 1 996).

26. Id.

27. lND.C0DE§31-l-11.5-13(k)(1993&Supp. 1995), amended by Act of July 1, 1996,

No. 1292, § 31, 1996 Ind. Adv. Legis. Serv. 2304, 2330-32 (Burns); IND. CODE § 3 1 -6-6. 1 - 1 6(k)

( 1 993 & Supp. 1 995), amended by Act of July 1 , 1 996, No. 1 292, §32,1 996 Ind. Adv. Legis. Serv.
2304, 2332-36 (Burns).



1 996] PROFESSIONAL RESPONSIBILITY 1 009

a trial court that a lawyer is delinquent due to an intentional violation of a support

order, the Executive Secretary shall file a Notice of Intentional Violation of

Support Order and Request for Suspension with the Indiana Supreme Court,
notifying the attorney by certified mail.

28 The attorney will have fifteen days
thereafter to file a response to this request and, thereafter, the supreme court may
issue an order of suspension that will be effective until further order of the court.

29

A lawyer suspended pursuant to section 11.1(c) may be automatically
reinstated by the court upon filing a petition for reinstatement, which includes a

certified copy of a court order stating that the lawyer is no longer in intentional

violation of a child support order.
30 A $200.00 filing fee must accompany the

petition for reinstatement.
31

D. Modification to Procedural Rules in Attorney Discipline Cases

The Disciplinary Commission of the Supreme Court of Indiana has
traditionally been a board comprised of seven members of the bench and bar.
Although the rules have always allowed for two non-lawyer members, no non-

lawyer has ever been appointed to the Commission. Effective February 1, 1996,

the Commission has been expanded to nine members, appointed by the Indiana
Supreme Court, seven of whom shall be members of the Bar and two of whom
shall be lay persons.

32 The length of the terms will continue to be five years, and

a reasonable effort must be made to provide a geographical representation of the
state.

33 The non-lawyer members of the Commission will not be eligible for
appointment as hearing officers as allowed under the rules.

34

In the past, when a lawyer has received a grievance, there was no requirement
that he or she file a response. The court amended the procedural rules and a
response is now required within twenty days, or within such additional time as
allowed by the Executive Secretary.

35
There were several reported cases wherein

the supreme court held that a lawyer was not subject to discipline for not

responding to a grievance.
36

Indiana Rule of Professional Conduct 8.1(b) prohibits a lawyer from

knowingly failing to respond to a lawful demand for information from a
disciplinary authority, unless the information is otherwise protected by Rule 1.6.

37

28. Ind. Admis. AND Disc. Rule 23, § 11.1(c) (1996).

29. Id.

'

30. Id. § 18(c).

31. Id.

32. Id. § 6(b). The two new members to the Commission shall commence their terms

effective February 1, 1996, and the length of their terms shall be two and four years, respectively.

33. Id.

34. Id.

35. Id. § 10(a)(2).

36. See, e.g., In re Duffy, 482 N.E.2d 1 137 (Ind. 1985); In re Koryl, 481 N.E.2d 393 (Ind.

1985).

37. Indiana Rules of Professional Conduct Rule 8. 1 (b) ( 1 995).



1010 INDIANA LAW REVIEW [Vol. 29: 1 005

This rule is also subject to the protections of the Fifth Amendment of the United
States Constitution and Article I, Section 14 of the Indiana Constitution.38 The
amendment to Rule 8.1(b) is a change in the law that opens the door to
disciplining a lawyer for the knowing failure to respond to a grievance.

The supreme court may suspend an attorney from the practice of law upon the
finding that the lawyer has been convicted of a crime punishable as a felony.

39

These suspensions are in effect until further order of the court or a final

determination of any resulting disciplinary proceeding.
40

Judges in Indiana are

obligated to transmit a certified copy of the judgment of conviction of a lawyer to

the Executive Secretary within ten days after the conviction.
41 Upon receipt of

information indicating that a lawyer has been convicted of a crime punishable as

a felony under the laws of any state or federal jurisdiction, the Executive Secretary

shall verify the information and file with the supreme court a notice of conviction

and request for suspension, notifying the attorney by Certified mail.
42

The lawyer

shall have fifteen days thereafter to file a response and the court may then issue an
order of suspension.

43

The newly enacted rule on summary suspensions also provides a procedure for
litigating suspensions pending prosecution of disciplinary complaints. If the

Commission determines that there is reasonable cause to believe that the

respondent is guilty of misconduct that, if proven, would warrant a suspension

pending prosecution, a motion will be filed with the supreme court that will advise

the hearing officer.
44

The hearing officer may, upon the Commission's motion,

order the respondent to show cause why he or she should not be suspended
pending final determination of the case, and a hearing will be scheduled not less

than fifteen days after personal service of the notice and not less than twenty days

after mailing a notice by certified or registered mail.
45

The burden of proof will be upon the respondent, and the procedures at the
summary suspension hearing will be the same as in the disciplinary proceedings.

46

If the hearing officer believes that the respondent has failed to sustain his or her

burden of proof, the hearing officer will submit to the supreme court a written

recommendation stating whether the respondent should be suspended pending

final determination of the disciplinary case.
47 The court may forthwith enter an

order of suspension, based upon the written recommendations of the hearing

officer, and the respondent will have fifteen days thereafter to petition the supreme

38. Id. Rule 8.1 cmt.

39. Ind. Admis. and Disc. Rule 23, § 1 1.1(a) (1996)

40. Id.

41. Id. §11. 1(a)(1).

42. W. § 11.1(a)(2).

43. Id.

44. Id.§ 11.1(b).

45. JUL ft 11.1(b)(1).

46. Id.

47. Id.



1996] PROFESSIONAL RESPONSIBILITY 1011

court for a review of the order.
48

The supreme court rules now provide for a sanction, known as private
administrative admonition, which is less severe than a private reprimand. If the

Commission determines that there is reasonable cause to believe that a respondent

has committed misconduct, but the misconduct would not likely result in a

sanction greater than a public reprimand if successfully prosecuted, the parties

may agree to an administrative resolution of the complaint.
49

This applies only to

matters determined to be "minor misconduct" and these resolutions may be
reached without filing a verified complaint with the clerk of the supreme court.

50

The court rules enumerate matters that will not be considered minor and, thus, not

eligible for treatment by administrative resolution. The case cannot be resolved

by administrative admonition if any of the following conditions exist:

misappropriation of funds or property; misconduct that is likely to result in

material prejudice to a client or other person; the respondent has been publicly

disciplined in the past three years; the misconduct is of the same nature as

misconduct for which the respondent was either publicly or privately disciplined

in the past five years; the conduct includes dishonesty, misrepresentation, deceit

or fraud; or the misconduct constitutes the commission of a felony.
51

The administrative admonition will be a letter from the Executive Secretary
to the respondent that summarizes the facts and sets out the applicable violations

of the Rules of Professional Conduct.
52 The admonition letter will be reviewed by

each of the justices of the supreme court and will be final within thirty days

thereafter, unless set aside by the court.
53

If the court does not set the admonition

aside, the respondent will receive the letter, and notice of the fact that a lawyer has

received a private administrative admonition will be provided to the grievant and

the clerk of the supreme court.
54
The fact that a lawyer has received an admonition

will be public record, but the letter of admonition is not a matter of public record.
55

The Disciplinary Commission and the Executive Secretary have the authority

to request the assistance of law enforcement agencies to assist in an investigation.
56

An addition to the rule now allows the supreme court to order a person found
within Indiana to give testimony or to produce documents or other things for use

in a lawyer disciplinary proceeding in another state.
57 An interested party may

make application to the court and may specify the procedure for giving testimony
or gathering documents that is consistent with that of a foreign jurisdiction.

58 The

48. Id. § 11.1(b)(2).

49. Id. § 12(a).

50. Id.

51. Id. § 12(a)(l)-(6).

52. /rf. § 12(b).

53. Id.

54. Id.

55. Id.

56. Id. § 19(a).

57. Id. § 19(b).

58. Id.



1012 INDIANA LAW REVIEW [Vol. 29:1005

court may order an individual to give a statement, testify or provide documents
before a person appointed by the court.

59 The individual must give testimony only
in the county wherein he or she resides, is employed or transacts business in
person, or at another convenient place set forth in the order.

60 The supreme court's
order may be enforced in the circuit court of the county where the person who was
commanded to appear is domiciled.61

The supreme court also modified the rule on the public disclosure of
disciplinary proceedings. Previously, once a verified complaint was filed by the
Commission the only information that the Commission or the clerk of court were
at liberty to disclose was information unrelated to the merits of the case.

62 Once
the case was resolved, the clerk was authorized to disclose "upon proper request"

all matters filed in a closed cause, with the exception of the contents of a private

reprimand.
63

Henceforth, all proceedings, with the exception of adjudicative

deliberations, and all papers filed with the clerk shall be opened and available for

public inspection.
64

Proceedings and documents that relate to matters that have not

resulted in the filing of a verified complaint are not open to the public, nor may the
investigative reports and other work product of the Commission be open to public

inspection.
65

Hearings shall be open to the public unless the hearing officer orders a closed

hearing on motion of one of the parties or sua sponte.
66 A hearing will be ordered

closed if the hearing officer believes it necessary for any of the following

purposes: (1) the protection of witnesses; (2) to prevent likely disruption of the

proceedings; (3) for security reasons; (4) to prevent the unauthorized disclosure

of attorney-client confidences that are not at issue in the proceedings; and (5) for

good cause shown, which in the judgment of the hearing officer, requires a closed

hearing.
67

A lawyer who is admitted to practice in Indiana and sanctioned in another
state has the responsibility to notify the Executive Secretary.

68 The notice must be

in writing and must be given within fifteen days of the issuance of a final order in

another jurisdiction.
69

Thereafter, the Executive Secretary will file a notice with

the supreme court, attaching a certified copy of the order of discipline and

requesting an order to the Executive Secretary and the lawyer directing them to

show cause, within thirty days from service of the order, why an identical

59. Id.

60. Id.

61. Id.

62. Ind. Admis. and Disc. Rule 23, § 22(a) (1987) (amended 1995)

63. Id.

64. Id.

65. Ind. Admis. and Disc. Rule 23, § 22(a) (1996).

66. Id. § 22(b).

67. Id. § 22(b)(l)-(5).

68. Id. § 28(a).

69. Id.



1996] PROFESSIONAL RESPONSIBILITY 1013

discipline in Indiana would be unwarranted.
70 Upon the expiration of thirty days

from service of the order, the court will impose an identical sanction unless one

of the following clearly appears on the face of the record from which the discipline

is predicated: (1) the procedure lacked in notice or in opportunity to be heard and

constituted a deprivation of due process; (2) there was an "infirmity of proof to
establish the misconduct, giving rise to the clear conviction that the Indiana

Supreme Court could not accept the conclusion on that subject as final; (3) the
imposition of the same discipline by the court would be inconsistent with

standards governing sanctions in the Indiana rule or would result in a grave

injustice; or (4) the misconduct established warrants substantially different

discipline in Indiana.
71

E. Legal Interns and Requirements for Admission to Examination

The supreme court changed two rules that affect law students. The supreme
court added a requirement that a law student serving as a legal intern must have

completed or be enrolled in a course in legal ethics or professional responsibility.
72

The court also changed the requirements for admission to the Indiana Bar
Examination. The former version of the rule designated courses in the law school
curriculum that were to be completed as a prerequisite to taking the bar

examination.
73

All of the specific class requirements have been deleted, with the

exception of the requirement that one must have two cumulative semester hours

of legal ethics or professional responsibility.
74

n. Modification to Trial Publicity Rule

Perhaps in reaction to the media circus surrounding a recent trial in California,

Rule 3.6 of the Rules of Professional Conduct, regarding trial publicity, was

modified effective February 1, 1996. A lawyer shall not make an extrajudicial
statement that a reasonable person would expect to be publicly disseminated if the

lawyer knows or should know that the statement will have a substantial likelihood
of materially prejudicing an adjudicative proceeding.

75
This has been the rule for

some time. However, such a statement will now be rebuttably presumed to have
a substantial likelihood of materially prejudicing a judicial proceeding if the public

comments are related to the very specific issues set forth in Rule 3.6(b).
76

70. Id. § 28(b).

71. Id. § 28(c). The reciprocal disciplinary proceedings are similar to the RULES OF

Disciplinary Enforcement, Local Rules of the United States Dist. Court for the S. Dist.

of Indiana and the Local Rules of the United States Dist. Court for the N. Dist. of

Indiana.

72. Ind. Admis. and Disc Rule 2.1(a)4 (1996).

73. Ind. Admis. and Disc. Rule 13(c) (1987) (amended 1995).

74. Ind. Admis . and Disc Rule 1 3(c) ( 1 996).

75. Indiana Rules of Professional Conduct Rule 3.6(a) (1996).

76. Rule 3.6(b) states:

A statement referred to in paragraph (a) will be rebuttably presumed to have a



1014 INDIANA LAW REVIEW [Vol. 29: 1005

A lawyer involved in the investigation or litigation of a case may state the
following: a brief description of the legal claim or legal defense; information

contained in the public record; that an investigation is in progress; the offense,

claim or defense involved and, except when prohibited by law, the identity of the
persons involved; the scheduling or result of any stage in the litigation; a request

for assistance in obtaining evidence and information necessary thereto; a warning

of danger concerning the behavior of a person involved when there is a reason to
believe that there is a likelihood of harm to an individual or the public interest; and
certain information about the accused in a criminal case.

77

III. Synopsis of Lawyer Disciplinary Cases

A. Judicial Misconduct

I. In re Goodman.—In In re Goodman™ Judge Goodman was charged with
violating the 1975 Code of Judicial Conduct. He was charged with violating
cannons which state that a judge should avoid the appearance of impropriety,

avoid nepotism and favoritism and cannons that require the judge's staff to

observe the standards of fidelity and diligence applicable to judges.

On May 17, 1994, Judge Goodman issued an anti-nepotism policy. However,
before this time, and during his tenure as presiding judge of the Marion Municipal

Court, from 1989 until June 1994, several employees were hired who were close

substantial likelihood of materially prejudicing an adjudicative proceeding when it

refers to that proceeding and the statement is related to:

(1) the character, credibility, reputation or criminal record of a party, suspect in a

criminal investigation or witness, or the identity of a witness, or the expected testimony

of a party or witness;

(2) in a criminal case or proceeding that could result in incarceration, the

possibility of a plea of guilty to the offense or the existence or contents of any

confession, admission, or statement given by a defendant or suspect or that person's

refusal or failure to make a statement;

(3) the performance or results of any examination or test or the refusal or failure

of a person to submit to an examination or test, or the identity or nature of physical

evidence expected to be presented;

(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal

case or proceeding that could result in incarceration;

(5) information that the lawyer knows or reasonably should know is likely to be

inadmissible as evidence in trial and would if disclosed create a substantial risk of

prejudicing an impartial trial; or

(6) the fact that a defendant has been charged with a crime, unless there is included

therein a statement explaining that the charge is merely an accusation and that the

defendant is presumed innocent until and unless proven guilty.

Indiana Rules of Professional Conduct Rule 3.6(b) (1996).

77. Indiana Rules of Professional Conduct Rule 3.6(c) (1996).

78. 649 N.E.2d 115 (Ind. 1995).



1996] PROFESSIONAL RESPONSIBILITY 1015

relatives of court employees. The Court Administrator hired his daughter, his

daughter's fiance, and the brother of his daughter's fiance. The Court
Administrator was also allowed to approve pay raises for his family members. The

Assistant Court Administrator hired three family members. The daughter of the

head of the Probation Department was hired, and Judge Goodman's son worked

for the court during school vacations.

In June of 1992, Judge Goodman contracted with a corporation to provide
certain services to the Marion Municipal Courts. The owner of the corporation

was a close personal friend of the Court Administrator. The owner of the
corporation hired the Court Administrator's son-in-law, who had left his
employment with the Marion Municipal Court, and the son-in-law was placed in

charge of the court program for the corporation. In September of 1992, Judge

Goodman became engaged to marry the in-house accountant for the corporation
and the owner of the corporation hosted an engagement party for the judge and his

fiance.

The Disciplinary Commission and Judge Goodman agreed that he did not
profit or intend to profit by the corporation providing services to the court.

79

However, the parties also agreed that these circumstances gave rise to a perception

that the court's business was based upon the exchange of favors.
80

The Indiana

Supreme Court accepted the agreement that Judge Goodman had engaged in
misconduct as he allowed a perception of impropriety to exist.

81
The court also

accepted the agreement with the Commission that the appropriate sanction in this

case was a public reprimand.
82

2. In re Hughes.—In In re Hughes*3 Robert Hughes was the elected judge of
the Carmel, Indiana, City Court and he also maintained a private law practice. He
was charged with submitting false reimbursement claims. Under Count I of the
verified complaint, the Indiana Supreme Court found that on August 15, 1990,
Judge Hughes attended a judicial conference and, although there was no tuition

fee charged, Hughes requested reimbursement of $200.00 for the cost of the
conference.

84 He received a check for $200.00 from the clerk-treasurer. Under
Count II of the complaint the court found that Judge Hughes requested the clerk-

treasurer to reimburse him the sum of $294.00 for the tuition of an ICLEF seminar
that only cost $147.00 to attend.

85
In Count III the court found that Hughes

received reimbursement in the amount of $810.00 for the cost of attending

conferences that never occurred.
86

Under Count IV of the verified complaint, the
court found that the judge had submitted a claim for $945.00 to the clerk-

treasurer, purportedly for expenses incurred while attending a conference

79. Id. at 116.

80. Id.

81. Id. at 116-17.

82. Id. at 117.

83. 640 N.E.2d 1065 (Ind. 1994)

84. Id. at 1066.

85. Id.

86. Id.



1016 INDIANA LAW REVIEW [Vol. 29:1005

sponsored by the National Judicial College in Montana, but the judge never

attended such a conference because it was never conducted.
87

On March 2, 1993, Hughes was charged in Hamilton Superior Court with
three counts of theft (each a Class D felony) and one count of official misconduct
(a Class A misdemeanor). He gave up his position as judge, and on February 1,
1994, Hughes pled guilty to all charges.

88 He received four one year sentences in
the Hamilton County Jail, each to run concurrently. The sentences were
suspended and he was placed on probation for one year.

89 The Indiana Supreme
Court found that Hughes had violated Rule 8.4(b) by committing criminal acts that

reflected adversely upon his "honesty, integrity, trustworthiness and fitness as a
lawyer."

90 Hughes had also violated Rule 8.4(c) by engaging in conduct involving

dishonesty, fraud, deceit and misrepresentation.
91

In assessing an appropriate disciplinary sanction, the Indiana Supreme Court
took into account several mitigating factors. Hughes had a good reputation and

a record of honesty and integrity. He appeared to be remorseful for his misconduct
and testified that his health had deteriorated due to the stress involved in trying to

balance his judicial duties and private law practice. He was diagnosed as suffering
from bipolar disorder, mixed with depression. Hughes made full restitution to
Hamilton County before the criminal charges were filed. The court recognized the

mitigating factors and stated that those factors could not overshadow the fact that

his egregious misconduct and dishonesty had risen to levels of felonious conduct.
92

The court stated that the respondent violated the public's trust and confidence in

the judiciary and that such actions were likely to injure the public's perception of

the judiciary.
93 The court found that it was appropriate to impose the strongest

disciplinary sanction and disbarred Robert E. Hughes from the practice of law in

the State of Indiana.
94

B. Contempt of Court

In In re Anonymous,
95

the attorney had been suspended for his failure to pay

his attorney's registration fee and for failure to comply with the mandatory

continuing legal education requirements. He was employed in a position that was
not related to the practice of law. While still under suspension, the attorney wrote

a letter on behalf of his employer to the Court of Common Pleas in Delaware

87. Id. at 1067.

88. Id.

89. Id. Hughes was also prohibited, by court order, from holding public office of trust or

profit for five years. Id.

90. Id. ; see also Indiana Rules of Professional Conduct Rule 8.4(b) ( 1 987).

91. In re Hughes, 640 N.E.2d at 1 067; see also INDIANA RULES OF PROFESSIONAL CONDUCT

Rule 8.4(c) (1987).

92. In re Hughes, 640 N.E.2d at 1067.

93. Id.

94. Id. at 1068.

95. 646 N.E.2d 666 (Ind. 1995).



1996] PROFESSIONAL RESPONSIBILITY 1017

County, Ohio. In this letter, the attorney requested an extension of time within

which to answer a complaint that had been filed against the employer to allow the

employer time to engage local counsel. The attorney signed the letter as attorney

for the defendant, although he was suspended from the practice of law. Following

this, the attorney met his requirements and again became a member of the Bar in
good standing.

The attorney was found in contempt of the Indiana Supreme Court for failing

to abide by the court's order of suspension.
96 The attorney stated that on reflection

he realized the implications of signing his name as an attorney, although neither
he nor his employer intended for him to represent the employer in the litigation.

The attorney expressed his sincere remorse and apology. The Indiana Supreme

Court stated that it was mindful that the attorney's conduct did not result in harm

to the public or his client or the opposing party.
97 The attorney had been engaged

in the practice of law from 1963 to 1988 without any disciplinary or contemptuous

incidents. Given the attorney's overall professional and personal record, and his

remorse, the court entered a finding of contempt and assessed costs against the

attorney, but did not impose other penalties.
98

C. Confidential Communications

1. In re Anonymous.—In In re Anonymous," the attorney was charged with
violation of Rules 1.6(a), 1.8(b) and 1.16(a)(1).

100 The Disciplinary Commission

and the attorney submitted an agreed statement of circumstances and a conditional

agreement for discipline to the supreme court for approval pursuant to Admission

and Discipline Rule 23, section 1 1(c).
101 The agreed upon sanction was a private

reprimand, which was approved by the Indiana Supreme Court.
102

The facts of the
case were set forth in an anonymous opinion to educate the bar, a means which
was used in several cases during this reporting period.

The attorney was contacted by a client to represent her in an action to recover
unpaid child support. During a review of the various documents supplied by the

client, the attorney noted that the client and the client's former husband were

jointly liable for a $4,500.00 debt in favor of the local county welfare department.

At the time, the attorney was under contract to represent the same local county

welfare department. The attorney informed the client that the representation could
not be undertaken, and with the client's permission forwarded the documents to

another attorney.

Following this, the attorney received approval from the local county welfare

96. Id. at 667.

97. Id. :

98. Id.

99. 654 N.E.2d 1 128 (Ind. 1995).

100. See Indiana Rules of Professional Conduct Rules 1.6(a), 1.8(b) & 1.16(a)(1)
(1987).

101. See IND. ADMIS. AND DISC. Rule 23, § 11(c) (1996).

102. In re Anonymous, 654 N.E.2d at 1 129.



1018 INDIANA LAW REVIEW [Vol. 29:1005

department to file a collection suit against her client's former husband for the
unpaid debt. Later, the former husband's counsel joined the attorney's former

client as a party to the suit and the attorney did not withdraw from the case after
the former client was joined as a party-defendant. The attorney ultimately
obtained summary judgment against her former client and the client's ex-
husband.

103

The Indiana Supreme Court found that the attorney had revealed information
related to the representation of the former client without the former client's

consent and thus violated Rule 1.6(a).
104 By using this information to the

disadvantage of the client, the attorney also violated Rule 1.8(b).
105 By failing to

withdraw as counsel for the local welfare department during the collection suit

against the former client the attorney violated Rule 1.16(a)(1).
106

As a mitigating factor, the court recognized that all of the information gained
by the attorney during the representation of the client was readily available from

public sources and was not confidential in nature.
107 The attorney had declined to

represent the client after she had learned of the outstanding debt owed to the
county welfare department and advised her to seek other counsel.

108
She did not

at any time request that the client sign an employment agreement, seek a retainer
fee or otherwise charge her.

109
The court found no evidence of selfish motive on

the attorney's part, and agreed that a private reprimand was a suitable disciplinary

measure.
110

2. In re Mullins.—In In re Mullins,nx the parents of Sue Ann Lawrance
petitioned the Hamilton Superior Court for authority to compel Sue Ann's health

care provider to withdraw her artificially administered hydration and nutrition in

March 1991 . Sue Ann had been in a vegetative state due to severe brain damage
since June 1987. Sue Ann's parents asserted in their petition that Sue Ann was
not expected to recover and that future treatment was futile. On May 2, 1 991 , the
court held that Sue Ann's parents had legal authority to consent to the withdrawal

of her artificially delivered nutrition and hydration.
112

Sue Ann was removed from
the Hamilton County Nursing Home to St. Vincent's Hospice in Marion County
some time after May 2, 1991.

On or about March 26, 1991, the attorney, Patti Sue Mullins, created the
Christian Fellowship For The Disabled, Inc. On May 16, 1991, Mullins filed, on
behalf of the Christian Fellowship, a petition for the appointment of a guardian

over an adult incompetent in the Marion Superior Court. In that petition, Mullins

103. Id.

104. Id.

105. Id.

106. Id.

107. Id.

108. Id.

109. Id.

110. Id. at 1129-30.

111. 649N.E.2d 1024 (Ind. 1995)

112. Id. at 1025.



1996] PROFESSIONAL RESPONSIBILITY 1019

sought the establishment of an emergency guardianship of Sue Ann, asserting that

at the time of the petition Sue Ann was the victim of intentional, willful and
purposeful neglect and/or abuse by her parents, her medical doctors and health

care providers and that she was being denied essential nutrition and hydration

contrary to law. The Marion Superior Court ruled that a temporary limited
guardian should be appointed for Sue Ann."

3
Mullins then secured a twenty-one

day stay of the Hamilton Superior Court's Order directing the withdrawal of Sue

Ann's hydration and nutrition.
114

Shortly after this stay was issued, Mullins

transmitted portions of Sue Ann's medical records by fax to several news media
outlets throughout Marion County."

5

Mullins was charged with three distinct violations of the Rules of Professional

Conduct. First, she was charged with violating Rule 1.6; by transmitting Sue

Ann's medical records to various media outlets in Marion County, Mullins

intentionally revealed information relating to the representation of the client

without the client's consent."
6
The Indiana Supreme Court found that Mullins

had violated this rule because there was no legitimate reason for Mullins to

disseminate the records of Sue Ann."
7
Not only were these records information

relating to the representation of a client, but they were also classified as non-public

records under Indiana Public Record Law,"
8
and as confidential court records

pursuant to Indiana Administrative Rule 9(k)."
9
The court also found that Mullins

had violated Rule 4.4 in that the act of transmitting Sue Ann's medical records had

no substantial purpose other than to embarrass, delay or burden a third person

during the representation of a client.
120

The third charge alleged that Mullins was
in violation of Rule 3.3(d), based on Mullins' requested relief in the Marion

Superior Court for an ex parte proceeding, without sufficiently or fully advising

that court of all relevant aspects of the pending parallel proceeding in the Hamilton

Superior Court. The court found that Mullins had violated Rule 3.3(d).
121

The court imposed the sanction of a public reprimand against Patti Sue
Mullins.

122
It based this reprimand upon several mitigating factors. The court

noted that Mullins had no prior disciplinary record, and that she had devoted

significant amounts of time and energy during her legal career to public causes.
123

Further, the court found that Mullins' actions were not because of any " sinister

motive, but instead resulted from her misguided pursuit of ideological

113. Id.

114. Id.

1 1 5. This appears to have been an attempt to justify her involvement in the litigation.

116. In re Mullins, 649 N.E.2d at 1 025.

117. Id.

118. Ind. Code § 5-14-3-4(a)(8) (1993).

119. In re Mullins, 649 N.E.2d at 1025-26.

120. Id. at 1026.

121. Id.

122. Id.

123. Id.



1 020 INDIANA LAW REVIEW [Vol. 29: 1 005

objectives."
124

3. In re Robak.—In In re Robak}15 the attorney had represented a client in
numerous legal matters over a number of years. On July 15, 1978, the client
married, and soon thereafter the client and his new wife signed a marital property
agreement. The attorney did not draft this document. The agreement provided
that any will made by either party need not contain provisions in favor of the other
party. At various times after the agreement was signed, the attorney drafted wills
for his client and the last will that he made for his client contained no provisions
for the benefit of the wife. On the same day that the client executed this will, he
also executed a trust agreement that gave his wife the income from the trust corpus

and the right to live in the marital home. Shortly thereafter, Robak drafted a will
for his client's wife.

The client later died and the attorney was employed to represent the estate.
The will that he had drafted was entered to probate and, thereafter, the wife
instituted proceedings against the estate to claim her one-third Indiana statutory

spouses share. The validity of the marital property agreement, which provided
against the election, was disputed.

The attorney represented the estate against the claims of the wife. The court
found that the wife had been a former client of the attorney, and that in opposing

her, the attorney violated Rules of Professional Conduct 1 .9 and 8.4(a). The

attorney contended that the Commission offered no evidence that the wife's claims

against the estate were substantially related to the attorney's prior representation

of the wife.
126 He also claimed that the Commission failed to prove that the

interests of the estate and those of the wife were materially adverse, stating that in

fact his representation of the wife had nothing to do with her claim against the

estate.
127

The supreme court recognized that it had never specifically defined the
meaning of "substantially related matter" within the context of Rule 1.9(a).

128
The

court found that the Commission had met its burden of proof by showing that the

attorney represented the wife in the preparation of her will and then represented

the estate in a substantially related matter.
129 The Indiana Supreme Court

examined the record and explained as follows:

[The court is] satisfied that the preparation and execution of the wife's

will in 1981, being by nature a provision for the ultimate disposition of

her property in accord with the existing marital property agreement, was

sufficiently interwoven with her later attempts in the estate action to

challenge the validity of the marital property agreement so as to satisfy the

124. Id.

125. 654N.E.2d731 (Ind. 1995)

126. Id. at 734.

127. Id.

128. Id.

129. Id.



1996] PROFESSIONAL RESPONSIBILITY 1021

"substantially related" element.
130

The court was also satisfied that the wife's claim against the estate was
materially adverse to the interests of the estate.

131
The court suggested that there

were certain factors that could be examined in order to determine whether a matter

was materially adverse. These factors included, the "duration and intimacy of the

lawyer's relationship with the clients, the functions being performed by the lawyer,

the likelihood that actual conflict will arise, and the likely prejudice to the client

if conflict does arise."
132

In the underlying case, the attorney represented the co-executors of the estate.

An executor is duty bound to manage and protect those assets over which he has
possession for both the creditors and the distributees by employing reasonable

precautions against any loss to the estate.
133

The attorney's duty to aid in the
preservation of the estate's assets was materially adverse to the wife's objective

of seeking more from the estate than was originally provided to her in her

husband's estate plan.
134 The attorney sought to establish the validity of the

marital property agreement to preserve the estate's assets while the wife sought to

invalidate the same agreement. As such, the supreme court concluded that the
attorney's representation of the estate was materially adverse to his former

representation of the wife and, therefore, the attorney violated Rule 1.9(a).
135

The attorney also disputed the finding that he had violated Rule 1.9(b). The
attorney contended that his preparation of the wife's will had nothing to do with

the wife's subsequent challenge to the client's will, arguing the information gained

during the prior representation could not have been used to the wife's

disadvantage. In litigating the wife's claim against the estate, the attorney deposed

the wife, asking various questions concerning the meeting that they had when he
drafted her will. By his questions, he attempted to elicit from the wife that she
recognized the validity of the marital property agreement at the time she executed

her will. The supreme court found that during the questioning, the attorney had

sought to elicit from the wife testimony about events which had occurred during

their meeting.
136

The attorney had specifically questioned the wife as to whether
she cried during the meeting.

137 The wife asserted that she did cry as she was
emotionally overwhelmed by the execution of her will, and the attorney

maintained that she did not cry during the process of the making of the will. The
attorney attempted to elicit this information to prove the wife was fully cognizant
of the provisions of the marital property agreement at the time she made her will.
The wife, however, took the position that she was not aware of the provisions of

130. Id.

131. Id.

132. Id. at 735.

133. Id.

134. Id.

135. Id.

136. Id.

137. Id.



1022 INDIANA LAW REVIEW [Vol. 29: 1005

the marital property agreement and did not understand its scope.

The Indiana Supreme Court found that the attorney's statement that the wife
did not cry during the meeting was information relating to the prior representation

of the wife.
138 The court found that a lawyer had a legal and ethical duty to

maintain confidences and secrets of a client both during and subsequent to the

attorney-client relationship.
139 The court found that the attorney violated Rules

1.9(b) and 8.4(a).
140

In assessing an appropriate disciplinary sanction, the court examined several

relevant factors. Among these were the nature of the misconduct, the actual or
potential injury flowing from the misconduct, the state of mind of the attorney, the

duty of the court to preserve the integrity of the profession, the potential injury to

the public in permitting the attorney to continue in the profession, and matters in

mitigation or aggravation of the misconduct.
141

In aggravation, the court stated

that the attorney had violated a fundamental tenet of the lawyer-client relationship,

that being loyalty.
142 "One of the cornerstones of competent legal service is an

attorney-client relationship wherein the client is assured of having confidences

kept and loyalties preserved."
143 At the very least, there was an appearance that

the attorney had used confidential information of a former client to make himself
more valuable to a subsequent adverse client.

144
The court also recognized that the

attorney's conflict appeared to be an isolated occurrence and that he had never

been previously subjected to any disciplinary proceedings.
145

This indicated to the

court that the attorney was not a continuing threat to the public or to the profession

and that a public reprimand was an appropriate sanction.
146

D. Criminal Convictions

1. In re Stults.—In In re Stults, 141 Count I of the verified complaint charged
the attorney with violating Rule 8.4(b) by engaging in criminal acts that "reflect

adversely upon his honesty, trustworthiness or fitness as a lawyer in other

respects."
148

This criminal act was possession of cocaine. On February 1, 1992,
the attorney was charged in Lake Superior Court with possession of cocaine in

excess of three grams, a Class C felony. On February 10, 1992, the attorney was
charged once again in Lake Superior Court with possession of cocaine in excess

of three grams. On January 8, 1993, both cases were amended to include

138. Id.

139. Id.

140. Id.

141. Id.

142. Id.

143. Id.

144. Id. at 736.

145. Id.

146. Id.

147. 644 N.E.2d 1239 (Ind. 1994).

1 48. See Indiana Rules of Professional Conduct Rule 8.4(b) ( 1 987).



1 996] PROFESSIONAL RESPONSIBILITY 1 023

conspiracy to possess cocaine. The initial charge was dropped when the court

found the evidence seized was inadmissible for the lack of a proper search

warrant.
149 On April 22, 1994, the attorney entered a plea of guilty to the amended

charge of possession of cocaine, a Class D felony, and the charge of conspiracy
was dropped.

150 The attorney was sentenced to two years at the Indiana

Department of Corrections with one year suspended and one year probation.
151

Under the former Disciplinary Rules, specifically Rule 1-1 02(A)(3), (5) and

(6), the Indiana Supreme Court had found that possession of cocaine constituted

moral turpitude and conduct prejudicial to the administration of justice, thus

reflecting adversely on the attorney's fitness to practice law.
152 The court had not

yet specifically decided whether possession of cocaine constitutes a criminal act

that adversely reflects on a lawyer's honesty, trustworthiness or fitness as a lawyer

in other respects, as prohibited by Rule 8.4(b).
153

Rule 8.4(b) states that a lawyer should be professionally answerable only for

offenses that indicate lack of those characteristics relevant to the practice of law,

and the analysis of criminal conduct under the current rules no longer involves

reference to moral turpitude.
154 The court "must now determine if there is a nexus

between the criminal act and one of the three personal qualities set forth in

Prof.Cond.R. 8.4(b), to-wit: honesty, trustworthiness, or fitness as an attorney."
155

In In re Stults, the court found that Rule 8.4(d) closely parallels former Discipline

Rule 1 -102(A)(6), which prohibited conduct adversely reflecting on a lawyer's

fitness to practice law.
156

Therefore, the court concluded that prior cases involving

issues of fitness in relation to criminal acts were applicable to an analysis of the

present rule.
157

The court determined that possession of cocaine involved participation in an
illegal transaction.

158
The court also found it important that after having been

released from one charge for possession, the attorney was arrested for a second

offense.
159

The court believed the second offense suggested that the attorney was
addicted to cocaine.

160
The Indiana Supreme Court found that this "clearly

established that respondent could not be trusted to keep his clients' secrets, give

effective legal advice, fulfill his obligations to the courts and so on."
161

149. In re Stults, 644 N.E.2d at 1240

150. Id. at 1240-41.

151. Id. at 1241.

152. Id.

153. Id.

154. Id.

155. Id.

156. Id.

157. Id.

158. Id.

159. Id.

160. Id.

161. Id.



1024 INDIANA LAW REVIEW [Vol. 29:1005

Accordingly, the court concluded that the attorney had violated Rule 8.4(b).
162

Count II of the verified complaint also charged the attorney with violating
Rule 8.4(b) for the commission of a criminal act, operating a vehicle while
intoxicated. The attorney pled guilty to this charge, was sentenced to one year in
jail, 361 days of which was suspended, and the attorney was placed on probation
for one year.

163
At the time of the attorney's arrest, he was a fugitive from justice.

The court concluded this pattern of conduct indicated that the attorney was not fit
to represent clients and found that the attorney had violated Rule 8.4(b).

164

The court recognized several mitigating factors regarding the attorney's
chemical dependency.

165 The chemical dependency started during a time of
personal marital problems.

166
Operating a motor vehicle while intoxicated came

during a period of time when the attorney was separated from his family. 167 As a
result of these acts, the attorney resigned from his father's law firm.

168 The court
also found that the attorney realized that he had brought shame and humiliation

upon his family name, upon his father and brothers who also practiced in the firm,
and upon the legal profession as a whole. The attorney appeared to be remorseful
for his conduct.

169 The court suspended the attorney for six months without
automatic reinstatement.

2. In re Wright.—In In re Wright
,

171
the parties submitted to the Indiana

Supreme Court an agreed statement of circumstances and conditional agreement

for discipline. Therein, it stated that on April 25, 1994 the attorney was charged
in the Allen Superior Court on two counts of possession of cocaine and failure to

pay the substance excise tax, Class D felonies.
On August 17, 1994, pursuant to a plea agreement, he was sentenced to a

Class A misdemeanor, received one year suspended sentence and was placed on
one year of probation.

172 Upon his arrest, the attorney admitted to being addicted
to and dependent upon alcohol and drugs.

173
The Indiana Supreme Court cited the

case of In re Stults,
114

finding that the possession of cocaine reflected adversely on

the attorney's fitness to practice law.
175 The statement submitted by the

Commission and the attorney agreed upon a six-month period of suspension with

part of that period conditionally stayed, followed by a two-year probationary

162. Id.

163. Id.

164. Id. at 1242.

165. Id.

166. Id.

167. Id.

168. Id.

169. Id.

170. Id.

171. 648N.E.2d 1148(Ind. 1995).

172. Id. at 1149.

173. Id.

174. 644N.E.2d 1239 (Ind. 1994).

175. In re Wright, 648 N.E.2d at 1 150.



1 996] PROFESSIONAL RESPONSIBILITY 1 025

period. The supreme court accepted this suspension citing the many mitigating
factors the parties had stipulated to.

176 The supreme court found that the attorney's

willingness to admit his wrongdoing, to acknowledge the chemical and alcohol

dependency leading to his professional misconduct and to seek relevant medical

and professional treatment in rehabilitative programs to be among the most
important of the mitigating factors.

177 The Commission and attorney also

stipulated that the attorney's misconduct had no adverse effect on any client. The

court recognized that no harm had befallen the client, however, it was not

controlling in the matter.
178

In approving the agreed upon six month suspension,

the court specifically set out a detailed list of the conditions to which the attorney

had to adhere.
179

E. Misuse Of Client Funds

1. In re Frosch.—In In re Frosch,m the attorney was charged with violating
Rules 1.15, 8.4(b), 8.4(c) and 8.4(d). The charges arose from two counts alleging

that the attorney mishandled client funds. Count I of the verified complaint

alleged that on December 18, 1990, the attorney deposited into his client trust

account the sum of $17,667.18, which belonged to an elderly resident in a nursing
home who had inherited the money. The client's family was unsure how to handle
the inheritance and entrusted it to the attorney with the understanding that he

would pay out whatever sums were necessary for the benefit of the elderly nursing

home resident. The attorney wrote numerous checks from the trust account to pay
his personal and business expenses totally unrelated to the client.

Between December 1990 and July 1991, the attorney spent at least $20,000.00

of client funds for his personal expenses. The expenses included numerous rent

obligations, various insurance policies, his mortgage, several utility bills, personal

loan obligations, and his credit card bills. On January 29, 1991, the balance in his
trust account dropped below $17,667.88. However, he continued to write checks

on the client trust account for personal expenses. On March 4, 1991, the balance
in the attorney's trust account once again dropped below $17,667.88, and from

that date until July 7, 1991, the balance in the account remained below the amount

of the elderly client's funds, falling to a low of $296.33 on June 13, 1991.

On July 7, 1991, the attorney deposited into the trust account a settlement
check belonging to two other clients in the amount of $52,000.00. This deposit

brought the balance in the attorney's trust account above $17,667.88 for the first

time since March of 1991. The attorney challenged the findings of the
Disciplinary Commission, stating that the Commission had ignored evidence that
funds which should have been placed into the account were diverted by others and

that various amounts had been spent by the elderly beneficiary of the

176. Id.

177. Id.

178. Id.

179. Mat 1151.
180. 643 N.E.2d 902 (Ind. 1994).



1 026 INDIANA LAW REVIEW [Vol. 29: 1 005

inheritance.
181

The supreme court found that the hearing officer had heard and observed all
the witnesses and their exhibits and had carefully weighed all of the arguments. 182

The court examined the record and concluded that the hearing officer's findings
properly reflected the evidence presented at the hearing.

183
The evidence was

uncontroverted that the attorney used his client funds to satisfy his personal

obligations.
184

Out of the deposit of the $17,667.18 into his trust account, the
attorney depleted the account to a point where a check he wrote for $900.00 was
returned due to insufficient funds. The court found that "[t]his was not the result
of a rare lapse in judgment but was Respondent's established method and means
for paying his personal financial obligations."

185

In Count II of the complaint, the attorney admitted that he failed to remit to his

clients the interest earned on their funds deposited in the client trust account at

Union Federal Savings Bank. 186 This failure constituted conversion of client's
funds, a criminal act in violation of section 35-43-4-3 of the Indiana Code and
further adversely reflected on his honesty, trustworthiness and fitness as a lawyer

in violation of Rule 8.4(b).
187

It was also a violation of Rule 1.15 because the

attorney had failed to hold client funds separate from his own.
188

The Indiana Supreme Court recognized that it is misuse of client funds which

reflects most unfavorably upon the legal profession.
189

The court also noted that
the attorney had been previously suspended for sixty days for violating Rule

1 . 1 5.
190

The court held this aggravating factor to strongly indicate that the attorney
was incapable of conforming to the Rules of Professional Conduct, and the court

concluded that disbarment was clearly warranted in this case.
191

2. In re Lustina.—In In re Lustina™2 on May 3, 1991, the attorney received
$1 5,000.00 in insurance settlement checks on behalf of his clients. Pursuant to a

contingent fee arrangement with the clients, the attorney was to receive one-third

of the settlement, leaving the clients with a net recovery of $10,000.00. The

attorney deposited the entire $15,000.00 intohis trust checking account on May
3, 1991. Between the May 3, 1991 and July of 1991, the attorney deposited
various personal funds into the same trust account, and also used funds from that

account for payment of his personal expenses. Also during this period, the

balance of the trust account dropped below the $10,000.00 amount that he owed

181. Id. at 903.

182. Id. at 904.

183. Id.

184. Id.

185. Id.

186. Id.

187. Id.

188. Id.

189. Id.

190. Id.

191. Id.

192. 647N.E.2d317(Ind. 1995)



1 996] PROFESSIONAL RESPONSIBILITY 1 027

to his clients. On July 19, 1991, the attorney paid to his clients the $10,000.00
that he owed them, this money having been provided to him by a third party.

The agreed statement of facts explained that in January of 1992 the attorney
wrote a bad check to a restaurant in the amount of $446.38 and failed to reimburse

the restaurant. Based upon this failure to reimburse the restaurant, the restaurant

filed suit and obtained a default judgment against the attorney.
193

The statement
of facts reflected that the attorney's clients expressed their utmost satisfaction with

his legal representation and were not the initiators of the request for investigation

by the Commission.
194

The clients stated that they agreed to wait until July 1991

to receive their share of the settlement proceeds.
195

However, they did not

authorize the attorney to use their settlement proceeds to pay his personal

expenses.
196 The attorney was unable to produce or locate a copy of the cashier's

check he used to pay his clients or to locate the file relating to the clients'

representation.

The court looked at the following mitigating facts: the attorney had never
before been the subject of any disciplinary grievance; the attorney had gone

through a period of substantial financial hardship; the attorney contributed time

and efforts to a number of civic and legal organizations including his local bar
association.

197

The court agreed that the facts stated in the agreement between the
Commission and the attorney clearly established that the attorney had commingled

client funds with his personal funds in violation of Rule 1.15(a).
198 He also

knowingly made a false statement of material fact in connection with the
disciplinary matter in violation of Rule 8.1(a).

199
His failure to keep complete

records for five years after termination of the representation of a client was in

violation of Rule 1.15(a).
200

His use of his clients' funds constituted a criminal act

in violation of Indiana Code section 35-43-4-3 and thus violated Rules 8.4(b) and
8.4(c).

201

The agreement between the attorney and the Disciplinary Commission stated
that an appropriate suspension in the case would be for the period of one year,

after which the attorney could seek reinstatement to the practice of law.
202 The

Indiana Supreme Court found that this was an appropriate suspension and
therefore approved the agreement tendered by the parties.

203
Accordingly, the

attorney was suspended from the practice of law for a period not less than one

193. Id.

194. Id. at 318.

195. Id.

196. Id.

197. Id.

198. Id.

199. Id.

200. Id.

201. Id.

202. Id.

203. Id.



1 028 INDIANA LAW REVIEW [Vol. 29: 1 005

year beginning April 6, 1995, without automatic reinstatement.
204

3. In re McLin.—In In re McLin 205 the attorney was retained by Dora Haskett
to represent her in a personal injury case in May 1990. The attorney and his client
agreed upon a contingency fee arrangement. The attorney subsequently negotiated
a $3,000.00 insurance settlement on his client's behalf. On December 17, 1991,
the attorney deposited the settlement proceeds into his personal checking account

at the Indiana National Bank. After his deposit, the balance in the account was

$5,714.07. On December 30, 1991, the attorney wrote Haskett a check for
$2,000.00 drawn on his personal account. On January 13, 1992, Haskett
deposited the check into a savings account at the Union Federal Savings Bank.

When she tried to withdraw funds from the account she was informed that the
check had been returned due to insufficient funds in the attorney's account. On
February 19, 1992, the attorney drew a check on his attorney trust account in order

to purchase a cashier's check payable to Union Federal, to cover the returned

check.

When the attorney's misconduct first came to light he claimed that his account
had been short "a few scant dollars." In fact, the account was over $1 ,000.00 short

of being able to satisfy Haskett' s check. The attorney's trust account and his

personal checking account contained various mixtures of his personal funds and

his client's funds. The Indiana Supreme Court found that the agreed upon facts

established that the attorney had violated Rule 1.15(a) in that the attorney

deposited client funds into his personal checking account that involved the

commingling of client and personal monies.
206

The attorney also violated Rule

1.15(b) by neglecting to reimburse Haskett for the returned check for a period of

over one month, and by failing to promptly deliver funds to a client who was
entitled to those funds.

207 The attorney violated Rule 8.4(b) by making use of the

funds belonging to Haskett to finance his personal expenditures.
208 The Indiana

Supreme Court also found that his various misrepresentations to the Commission

during the investigation of the matter led to a violation of Rule 8.1(a).
209

In deciding upon the appropriate sanction, the court looked at various

mitigating factors. The attorney had no prior disciplinary record and had no

motive to deprive Haskett of the money permanently.
210 He had expressed some

remorse about the incident, and Haskett did not suffer any significant financial

injury as a result of being temporarily deprived of the use of her funds.
211 The

supreme court agreed with the suggested sanction and ruled that McLin be
suspended from the practice of law in the State of Indiana for a period of not less

204. Id.

205. 644N.E.2dl00(Ind. 1994).

206. Id. at 102.

207. Id.

208. Id.

209. Id.

210. Id.

211. Id.



1 996] PROFESSIONAL RESPONSIBILITY 1 029

than thirty days.
212

F. Neglect Of Client Matters

1. In re Brown.—In In re Brown,213 the attorney was retained by a client in
September of 1992 to represent him in an action brought by the client's former

spouse seeking past due child support payments. Additionally, the former spouse

petitioned the court to attach an inheritance due to the client, for the purpose of

satisfying the alleged past due child obligation. After two continuances, the matter

was finally scheduled for a hearing to be held on November 6, 1992. The attorney
failed to notify his client of this hearing. He also failed to investigate the client's
claims that the client's former wife was motivated in her efforts to attach the

inheritance not by a concern for the children but to alleviate her own financial
misfortune. The attorney did not attempt to discover whether his client had
actually made payments directly to his former wife as the client claimed. Neither
the attorney nor his client appeared at the November 6 hearing.

On November 12, 1992, the court entered judgment in the amount of
$26,860.00 against the client, and the attorney failed to inform his client of this

judgment. The client learned of this adverse ruling from his daughter. Between
November 12, 1992 and December 10, 1992, the attorney collected various
information from the client relating to his claims and contentions, and incorporated

this information into a motion to correct error, which he filed on December 10,
1992. The court denied the motion on December 21, 1992 and set a hearing date
of January 22, 1993, to hear argument pertaining to the petition to attach the

client's inheritance. The attorney acknowledged the hearing date in a letter dated
January 11, 1993, but failed to appear at the hearing due to his involvement in

another trial that day. The client attempted to represent himself at the hearing,
resulting in the inheritance being attached to satisfy the earlier judgment.

214

Throughout the representation, the attorney relayed information about the case

to the client through the client's sister, despite the fact that the attorney had his

client's toll free work telephone number. As a result of this arrangement, the
client did not often receive prompt answers to questions that he had posed

concerning the case.

The court concluded that the attorney had violated Rule 1.1 by failing to
provide competent representation; the court stated that the attorney had also

violated Rule 1.3 by the attorney's failure to act with reasonable diligence and

promptness during the course of the representation.
215

The attorney violated Rule
1 .4(a) by his failure to keep the client reasonably informed about the status of the

matter and to promptly comply with requests for information.
216 He violated Rule

1 .4(b) by the his failure to explain matters to the extent reasonably necessary to

212. Id.

213. 646 N.E.2d 664 (Ind. 1995).

214. Mat 666.
215. Id.

216. Id.



1030 INDIANA LAW REVIEW [Vol. 29:1005

permit his client to make an informed decision.217 The attorney and the
Disciplinary Commission had agreed upon a sanction of a public reprimand which
the court instituted.

218

2. In re Cushing.—In In re Cashing,219 the attorney was charged in a two
count verified complaint. The basic nature of the allegations was that the attorney
failed to represent his clients with sufficient diligence. In June 1987, the attorney

was contacted by two clients regarding possible legal action regarding the death
of their dog. In October 1986, the clients boarded their dog in a kennel and told
the employees that the dog was diabetic. The employees allegedly neglected to
feed the dog causing it to lapse into a coma. The dog ultimately died. The clients
incurred significant veterinary expenses in unsuccessful attempts to treat it.

In January 1988, the attorney met with the clients to discuss filing suit and
seeking an insurance settlement against the kennel. The attorney informed the
clients that he would take their case on a contingency fee basis, although no
written agreement was signed. Between January 1988 and June 1992, the attorney

wrote two letters to the kennel's insurance carrier regarding the settlement. The
attorney failed to inform the clients that the insurance carrier was unwilling to

settle. The clients made approximately twenty attempts to reach the attorney by
telephone. When they finally reached the attorney, he indicated that the time to
pursue the case was running out and that he was pursuing the matter. The clients
were left with the impression that documentation necessary to preserve their claim

had been filed. Ultimately the attorney failed to file suit on behalf of his clients

or to negotiate a settlement with the insurance carrier. He did not advise the
clients that he no longer wanted to represent them, he failed to advise them to seek

other counsel and he did not return their file in a timely manner.

The court found that this conduct violated Rule 1.3 in that the attorney failed
to act with reasonable diligence and promptness when representing his clients.220

He also violated Rule 1.4(a) by failing to keep his clients reasonably informed
about the status of their case and by failing to promptly comply with reasonable

requests for information.
221

In January of 1990, the attorney was retained by another client in regard to a

dissolution action. The attorney filed a petition for dissolution in the Marion

Superior Court on February 5, 1990, and on February 13, 1990, the client's wife

filed a petition for dissolution in the Superior Court of California. On February
23, 1990, the attorney sent a motion to dismiss to the California court. In this

motion he asserted that the wife did not meet the California residency

requirements and as such, her petition for dissolution should be dismissed in the

California court. The attorney was not licensed to practice law in the State of

California nor had he secured the assistance of local counsel. For various reasons

the California court refused to accept the pleading and in order to accept the

217. Id.

218. Id.

219. 646 N.E.2d 662 (Ind. 1995).

220. Id. at 663.

221. Id.



1 996] PROFESSIONAL RESPONSIBILITY 1 03

1

motion, the California court requested an $88.00 first appearance fee. The
attorney received the money for the fee from his client on March 15, 1990, but did

not resubmit the motion.

The wife requested a default judgment from the California court, and the

attorney was notified on April 6, 1990. The attorney failed to inform his client and

a default judgment was entered on behalf of the wife on August 24, 1990.
222

In

October, the attorney's client received a copy of the order granting the divorce.

The client then paid the attorney $1,000.00 to continue the representation and an

additional $1,500.00 on January 1, 1991. Five hundred dollars of the $1,500.00

was intended to retain local counsel in the State of California, but the attorney

never retained local counsel. On December 17, 1991, the client, by letter,
terminated the representation and demanded the return of the unearned fees. The
attorney did not respond to this letter. After an additional letter had gone

unanswered, the client filed a grievance against the attorney with the Disciplinary

Commission, and following the filing of the grievance, the attorney returned

$1,588.00 to the client.

The Indiana Supreme Court found that the attorney's attempt to file a motion

in the California court when not licensed to practice law in that state, was in
violation of Rule 5.5(a), which provides that a lawyer shall not practice law in a

jurisdiction where doing so violates the regulation of the legal profession in that

jurisdiction.
223 The court concluded that the attorney failed to take significant

action on behalf of his client for a period of four and one-half years, and the

attorney' s less than diligent representation in the second count resulted in a default

judgment being entered against his client.
224

The court stated that in both

instances his client's substantive legal rights were adversely affected or threatened

by the attorney's conduct.
225 The court suspended the attorney for a period of

thirty days beginning on March 17, 1995.
226

3. In re Dils.—In In re Dils,221 the charges against Dils arose out of his
representation of two estates. The attorney and the Disciplinary Commission

agreed upon a resolution of this matter and presented it to the Indiana Supreme

Court for its approval. Approving the agreement, the court held that the attorney

had engaged in misconduct and that a public reprimand was an appropriate

sanction.

On May 31, 1989, the attorney was named the personal representative of an
estate. In early 1991, the court discovered that the attorney had taken no action

since March 15, 1990, and that the estate remained open. After a subsequent
hearing, the attorney stated that he would file an accounting and closing statement

to conclude the estate by March 28, 1991. The court ordered that all documents

222. Id.

223. Id. at 664.

224. Id.

225. Id.

226. Id.

227. 646 N.E.2d 667 (Ind. 1995)

228. Id. at 669.



1032 INDIANA LAW REVIEW [Vol. 29:1005

be filed no later than April 1 , 1991 , and ordered the attorney to appear in court that

day.
229 The attorney failed to file any documents on or before April 1, 1991.
On August 30, 1991, the court ordered the attorney in his capacity as personal

representative of the estate, to pay $19,601.52 to Central State Hospital for care

of the estate's deceased mother.
230 On April 10, 1992, the court removed the

attorney as personal representative and ordered him to file an inventory and
financial accounting within ten days.

231 The attorney failed to file an accounting
or other documentation within ten days; he also failed to appear to explain his

actions. The attorney did not provide his successor personal representative with
an inventory or accounting and neglected to forward the file or assets of the estate

until approximately one year after the attorney's removal as personal

representative.

The court concluded that the attorney had failed to diligently administer or
ultimately close the estate and therefore he had violated Rule 1 .3.

232 By failing to
turn over the case to his successor personal representative until approximately one

year after the attorney's removal as personal representative, the attorney had also

violated Rule 1.16(d).
233

Count II of the complaint stemmed from the attorney's representation of an
estate opened on November 12, 1991. The court supervising the administration
of the estate appointed the attorney as the estate's attorney, and the court appointed

the decedent's daughter as the estate's executor. On December 3, 1991, the
decedent's widow filed an election to take against the will. Beginning September

3, 1991, the widow's attorney attempted to contact the attorney to negotiate the

claims filed against the estate. From November 12, 1991, until March 1993, the
attorney failed to file an accounting or inheritance tax return and failed to

otherwise properly close the estate. The attorney also failed to respond to the
widow's request regarding her election.

The Indiana Supreme Court noted that the attorney had been privately
reprimanded by the court once before.

234
However, the Disciplinary Commission

and the attorney had agreed that there was no selfish motive fueling the attorney's

misconduct, and that the attorney had in good faith attempted to rectify the

consequences of his misconduct by eventually turning over the estate files to his

successor counsel.
235 The court concluded that the sanction of a public reprimand

was appropriate in this case.
236

229. Id. at 668.

230. Id.

231. Id.

232. Id.

233. Id.

234. Id. at 669.

235. Id.

236. Id.



1 996] PROFESSIONAL RESPONSIBILITY 1 033

Conclusion

During this survey period, the law of professional responsibility, particularly

the organization and procedural aspects, was dramatically revised. The Indiana
practitioner must follow very specific account management regulations for trust

and escrow accounts. What one might have previously considered to be sound
business practice in maintaining detailed trust account records is now mandated
by the Indiana Supreme Court; accounts will be monitored by the financial

institutions and the Disciplinary Commission will receive reports of any

mismanagement. The court has allowed sufficient time for all lawyers and law

firms to comply, but it will be up to the practitioner to educate him or herself and
follow this directive.

The comments lawyers are permitted to make during the course of legal
proceedings are subject to the supreme court's scrutiny. The press conferences
and sound bites to which we have become accustomed may be sanctionable in
Indiana. The practitioner should be familiar with Rule 3.6, and guard against
violative public statements during the investigation or pendency of a case.

In an effort to increase the awareness of the Bar on these and other ethics

issues, there is now a mandatory continuing legal education requirement to attend
sessions on ethics. The requirement of three hours on ethics over a three year
period should be relatively easy for practitioners to attain.

The disciplinary process has been changed, beginning with the constitution of
the Disciplinary Commission to include non-lawyer members, the increase in the

enforcement of powers of the Executive Secretary and the Commission, and the

addition of a new sanction, the administrative admonition, to name the more
significant modifications. The availability of this new measure of discipline could
result in an increase in attorney discipline cases if the Commission does not
dismiss matters that previously did not warrant a private reprimand. Those

lawyers practicing in the field of professional responsibility, or who find
themselves the object of a grievance, should be advised of the availability of the

administrative admonition as a vehicle for resolving attorney discipline cases

without publicity.