Opinion
No. 18S00-0709-DI-375.
April 23, 2009.
PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE
Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a "Statement of Circumstances and Conditional Agreement for Discipline" stipulating agreed facts and proposed discipline as summarized below:
Stipulated Facts: Count I. While Respondent was representing Client 1 in a child custody/visitation dispute, the court set the matter for a review hearing on March 21, 2006. About a week before the hearing date, opposing counsel told Respondent that her client would be unable to attend the hearing, but that the parties were cooperating with custody and visitation so the hearing would not be necessary. Without contacting Client 1, Respondent acquiesced in canceling the hearing without resetting it.
Count II. Client 2 paid Respondent a $2,500 flat fee to represent him in a child custody dispute. When Client 2 became dissatisfied with Respondent's services, Client 2 fired Respondent and requested a copy of his file and a partial refund of the fee. Respondent delayed in providing Client 2 with a copy of his file, causing the need for a court hearing to be continued twice, and never refunded any part of the fee. Respondent refunded $2,500 to Client 2 after the Commission initiated this action against Respondent.
In both cases, Respondent failed to cooperate with the Commission in its investigations, precipitating the issuance of orders to show cause. See Matter of Bryan, 18S00-0608-DI-288; Matter of Bryan, 18S00-0705-DI-196. Respondent has also been disciplined in an unrelated case. See Matter of Bryan, 771 N.E.2d 77 (Ind. 2002) (agreed suspension for 90 days with automatic reinstatement). A fact in mitigation is Respondent's cooperation with the Judges and Lawyers Assistance Program since November 2007 in obtaining treatment for problems contributing to his misconduct.
Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules that prohibit the following conduct:
1.2(a): Failure to consult with a client about the means of achieving an objective.
1.4(a): Failure to keep a client reasonably informed about the status of a matter and promptly respond to reasonable requests for information.
1.16(d): Failure to refund advance payment of fees that have not been earned and failure promptly to return to a client case file materials to which the client was entitled after termination of representation.
8.1(b): Failure to respond to the Commission's demands for information.Discipline: The Court, having considered the submission of the parties, now APPROVES and ORDERS the following agreed discipline.
For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of one year, beginning May 1, 2009, all stayed subject to completion of at least two years of probation. The Court incorporates by reference the terms and conditions of probation set forth in the parties' Conditional Agreement, which include:
(1) Respondent shall meet all requirements of his monitoring agreement with the Judges and Lawyers Assistance Program and shall have no violations of the Rules of Professional Conduct during his probation.
(2) If Respondent violates his probation, the stay of his probation will be revoked and his suspension will be actively served without automatic reinstatement, and Respondent will be reinstated only through the procedures of Admission and Discipline Rule 23(4) and (18).
Respondent's probation shall remain in effect until it is terminated pursuant to Admission and Discipline Rule 23(17.1).
The costs of this proceeding are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in this case is discharged.
All Justices concur, except BOEHM, J., who is not participating in this case.