Opinion
Supreme Court Case No. 22S-DI-384
02-23-2024
In the MATTER OF: Thomas M. DOGAN, Respondent
Published Order Approving Statement of Circumstances and Conditional Agreement for Discipline
Pursuant to Indiana Admission and Discipline Rule 23(12.1)(b), 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: Married "Clients" hired Respondent in July 2018 to represent them in a personal injury suit and worker’s compensation claim arising from an accident the husband suffered at work. Respondent’s contingent fee agreement included provisions that (1) expressly gave Respondent "power of attorney … to settle the matter in attorney’s best discretion," and (2) required Clients to pay Respondent all expenses and fees due at $425 per hour in the event Clients discharged Respondent.
Clients retained successor counsel in October 2019, and those counsel filed appearances for Clients in the personal injury case. Over several days, both Clients and successor counsel requested several times that Respondent terminate his representation, but Respondent did not do so. At a telephonic case management conference on November 15 that Respondent did not attend, the court ordered Respondent to provide Clients’ case file to successor counsel and to withdraw his appearance within 14 days. Respondent then sent a letter to successor counsel accusing them of having obtained an ex parte order during the November 15 hearing and asserting Clients owed Respondent $386,743.67 in legal fees. The following day, Respondent moved to set aside or stay the trial court’s November 15 order, filed a retaining lien, and sought to have the lien reduced to a judgment against Clients. At this point in time, Respondent still had not withdrawn as Clients' counsel (although he would do so in early December).
On December 18, Respondent filed a motion to correct a "scrivener’s error" in a proposed order he had submitted, indicating his request for relief was for a retaining lien and not a personal judgment against Clients; but Respondent did not seek to correct the motion itself. On December 26, Respondent sent a settlement letter to successor counsel, proposing that if Clients agreed to a judgment against them in the amount of $386,743.67, Respondent would withhold execution of judgment until the personal injury case was resolved. In early 2020, Clients abandoned their request for Respondent to turn over their case file, and the trial court largely denied Respondent’s pending motions as moot.
In November 2020, Respondent sent a letter to successor counsel asserting that, with interest, he was now owed $552,850.80. In December 2020, Respondent filed a collections lawsuit against Clients and successor counsel that sought an award of these legal fees and interest as well as an award of attorney fees associated with the collections suit. During this time, Clients’ personal injury case was still pending. In March 2021, Respondent moved to intervene in Clients’ lawsuit and to have that case consolidated with Respondent’s collections lawsuit. However, in April 2021, Respondent filed a notice of charging lien based on quantum meruit on any recovery Clients might make; he with- drew his motions for intervention and consolidation; and the parties filed a joint motion to dismiss the collections case.
Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:
1.2(a) and 8.4(a): Attempting to not abide by a client’s decision whether to settle a matter.
1.7(a)(2): Representing a client when the representation may be materially limited by the attorney’s own self-interest.
1.16(a)(3): Failing to withdraw from representation after being discharged.
8.4(d) and 8.4(a): Attempting to engage in conduct prejudicial to the administration of justice.
Discipline: The parties propose the appropriate discipline is a 45-day suspension with automatic reinstatement. The Court, having considered the submissions of the parties, now approves the agreed discipline.
For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 45 days, beginning April 4, 2024. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the period of suspension, provided there are no other suspensions then in effect, Respondent shall be automatically reinstated to the practice of law, subject to the conditions of Admission and Discipline Rule 23(18)(a).
The costs of this proceeding are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in this case is discharged with the Court’s appreciation.
All Justices concur.