ATTORNEY FOR THE RESPONDENT ATTORNEYS FOR THE INDIANA SUPREME COURT
Kerry Thompson DISCIPLINARY COMMISSION
Scottsburg, Indiana Donald R. Lundberg, Executive Secretary
Rom Byron, Staff Attorney
Indianapolis, Indiana
______________________________________________________________________________
In the FILED
Oct 05 2009, 4:00 pm
Indiana Supreme Court
_________________________________ CLERK
of the supreme court,
court of appeals and
tax court
No. 36S00-0811-DI-605
IN THE MATTER OF:
ANONYMOUS,
Respondent.
_________________________________
Attorney Discipline Action
Honorable Judith A. Stewart, Hearing Officer
_________________________________
October 5, 2009
Per Curiam.
This matter is before the Court on the report of the hearing officer appointed by this
Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified
Complaint for Disciplinary Action," and on the post-hearing briefing by the parties. We find that
Respondent engaged in attorney misconduct by failing to surrender to a former client papers to
which he was entitled.
The Respondent's admission to this state's bar subjects him to this Court's disciplinary
jurisdiction. See IND. CONST. art. 7, § 4. For his misconduct, we find that Respondent should
receive a private reprimand.
Background
A criminal defendant (“Client”) was charged with three counts of auto theft. Respondent
was appointed as Client's public defender in September 2006. In late October 2006, Client sent a
letter to Respondent requesting a copy of the State's responses to his discovery request in his
case, and he stated a willingness to sign a plea bargain agreement if the State would allow his
sentence to run concurrently with a sentence he was already serving. The following month,
Respondent met with Client and discussed a proposed plea agreement. Respondent reviewed
discovery materials with Client but did not provide him copies. Client accepted the plea
agreement and entered a guilty plea. The trial court accepted the guilty plea and sentenced
Client on November 13, 2006. Respondent's representation of Client concluded on that date.
Client did not indicate to Respondent any intention to appeal, and he did not pursue an appeal.
Respondent reasonably believed that Client's earlier request for a copy of the discovery materials
was no longer pending at that point.
By letter dated February 2, 2007, Client requested a "copy of the discovery" in his case
and "all other court documents." He did not indicate why he was requesting these materials. On
March 5, 2007, Respondent sent Client a letter and his sentencing order but no other documents
from the case. The letter told Client that his representation ended on the date of sentencing and
Respondent was "not going to waste a lot of needless time and money sending stuff that's
irrelevant for what you're obviously planning to do and that's filing some sort of post-conviction
relief petition and all the litigation that goes with it." Respondent also sent Client a copy of a
Court of Appeals' decision in a post-conviction relief ("PCR") case and suggested he "read it
about 14 times before you file any sort of PCR petition in your case."
Client filed a grievance against Respondent with the Commission. After the Commission
filed a verified complaint charging Respondent with violation of Profession Conduct Rule
1.16(d), Respondent's counsel sent Client a copy of the entire contents of Respondent's file on
Client's case.
After an evidentiary hearing, the hearing officer concluded Respondent violated Rule
1.16(d) by not providing Client a copy of the State's responses to his discovery request after
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Client requested it in his February 2, 2007, letter. The hearing officer, however, concluded that
Client's request for other documents was too vague and that the Commission had not proven that
Respondent violated Rule 1.16(d) by not providing Client a copy of documents besides the
discovery materials. The hearing officer recommended the Respondent receive a private
reprimand.
The Commission filed a Petition for Review pursuant to Admission and Discipline Rule
23(15)(a), challenging only the hearing officer's recommended sanction. In his brief in response,
Respondent argues in favor of a private reprimand and does not challenge the hearing officer's
conclusion the he violated Rule 1.16(d) by not providing Client with copies of the discovery
materials.
Discussion
Obligation to turn over documents to former clients generally. The rule Respondent is
charged with violating reads:
Upon termination of representation, a lawyer shall take steps to the extent
reasonably practicable to protect a client's interests, such as giving reasonable
notice to the client, allowing time for employment of other counsel, surrendering
papers and property to which the client is entitled and refunding any advance
payment of fee or expense that has not been earned or incurred. The lawyer may
retain papers relating to the client to the extent permitted by other law.
Prof. Cond. R. 1.16(d) ("the Rule") (emphasis added). On a related note, the Indiana Code
provides:
If, on request, an attorney refuses to deliver over money or papers to a person
from whom or for whom the attorney has received them, in the course of the
attorney's professional employment, the attorney may be required, after
reasonable notice, on motion of any party aggrieved, by an order of the court in
which an action, if any, was prosecuted or if an action was not prosecuted, by the
order of any court of record, to deliver the money or papers within a specified
time, or show cause why the attorney should not be punished for contempt.
Ind. Code § 33-43-1-9 ("the Statute") (emphasis added).
Client's entitlement to copies of discovery materials. Neither the Rule nor the Statute
requires an attorney to honor all demands from former clients for copies of everything in their
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files. As relevant to the current case, the Rule ties the requirement to protecting the client's legal
interests. Although Client did not tell Respondent why he was requesting a copy of the State's
responses to his discovery request, Respondent assumed Client wanted them to file a PCR action.
Providing these documents for this purpose is tied to protecting Client's legal interests, whether
or not Respondent believed there was any merit to such an action. There is no suggestion that it
was not practicable for Respondent to make and send copies of the discovery materials to Client.
Respondent at this point does not deny that he violated the Rule by failing to do so.
Discipline. The Commission contends Respondent should receive a public reprimand,
arguing that Respondent's misconduct was intentional, that Client's incarceration made him a
vulnerable victim, and that Client's interests were harmed by not receiving the discovery
materials when requested. The Court, however, notes in mitigation that there was no complaint
about the quality of Respondent's representation, that there is no showing of any actual legal
harm to Client, and Respondent has no prior disciplinary record in over 25 years of practice. On
balance, we conclude that a private reprimand is sufficient under the circumstances of this case.
Conclusion
The Court concludes that Respondent violated Professional Conduct Rule 1.16(d) by not
providing Client a copy of the State's responses to his discovery request after Client requested it
in his February 2, 2007, letter. For Respondent's professional misconduct, the Court imposes a
private reprimand.
The costs of this proceeding are assessed against Respondent. The hearing officer
appointed in this case is discharged.
The Clerk of this Court is directed to give notice of this opinion to the hearing officer and
to the parties or their respective attorneys. The Clerk is further directed to post this opinion to
the Court's website, and Thomson Reuters is directed to publish a copy of this opinion in the
bound volumes of this Court's decisions.
All Justices concur.
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