RESPONDENT ATTORNEYS FOR THE INDIANA SUPREME COURT
Richard M. Bash, pro se DISCIPLINARY COMMISSION
Donald R. Lundberg, Executive Secretary
Indianapolis, Indiana
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In the
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Indiana Supreme Court
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No. 48S00-0603-DI-89 FILED
Feb 6 2008, 12:02 pm
IN THE MATTER OF:
CLERK
of the supreme court,
court of appeals and
RICHARD M. BASH, tax court
Respondent.
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Attorney Discipline Action
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February 6, 2008
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." We find that Respondent, Richard M. Bash, engaged in at-
torney misconduct by failure to provide competent legal services to one client and attempted
sexual misconduct with another client.
The Respondent's 2000 admission to this state's bar subjects him to this Court's discipli-
nary jurisdiction. See IND. CONST. art. 7, § 4. For his misconduct, we find that Respondent
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should be suspended from the practice of law in this state for at least 180 days without automatic
reinstatement.
Background
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The Commission filed a one-count verified complaint on March 13, 2006, alleging failure
to provide competent legal services in a post-conviction relief ("PCR") proceeding, and Judge
John W. Forcum of the Blackford Superior Court was appointed as hearing officer. On March 9,
2007, the Commission filed an emergency petition for interim suspension (“Emergency Peti-
tion”) under a new cause number, 48S00-0703-DI-99, alleging attempted sexual misconduct with
a client. On May 30, 2007, the Commission filed an amended complaint in the current case
(“Verified Complaint”), adding a second count based on the allegations of the Emergency Peti-
tion.
Because of factual disputes, the Court referred the Emergency Petition to Judge Forcum
for hearing. The hearing officer heard all allegations of both cases together, and on August 30,
2007, he filed his report with respect to both cases (“Report”). After briefing by the parties, the
Court denied the Emergency Petition on October 5, 2007. The hearing officer made the follow-
ing findings with respect to the Verified Complaint, and neither party filed a petition for review
of these findings. "When, as here, neither the Commission nor the respondent challenge the
findings of the hearing officer, we accept and adopt those findings but reserve final judgment as
to misconduct and sanction." In re Levy, 726 N.E.2d 1257, 1258 (Ind. 2000).
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Count 1. A criminal defendant was convicted of confinement, battery with a deadly
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weapon, and possession of a controlled substance arising from an attack on his girlfriend. He
was sentenced to 18 years in prison on the confinement charge and to lesser terms on the other
charges. Trial counsel raised and preserved the issue of the sufficiency of the evidence to sup-
port the confinement conviction. Appellate counsel, however, did not raise this issue on appeal,
and the confinement conviction was upheld on appeal.
The defendant filed a pro se PCR petition, alleging ineffective assistance of trial and ap-
pellate counsel. The defendant’s mother paid Respondent $1,500 to represent her son at his PCR
hearing. Respondent entered an appearance on the defendant’s behalf and filed an amended
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post-conviction relief petition. The amended petition raised only one issue: whether there was
adequate proof of confinement to sustain a conviction for criminal confinement. Respondent did
not assert ineffective assistance of appellate counsel. In support of the petition, Respondent ar-
gued only that the state’s main witness lacked credibility. At the hearing, however, Respondent
presented no evidence to attack the credibility of this witness. He called only two witnesses—his
client and the client’s mother. He did not call appellate counsel to testify or make a showing that
appellate counsel was ineffective for failing to attack the confinement conviction on sufficiency
grounds. He offered no evidence that was not available at the time of trial. He did not offer the
trial transcript into evidence. Additionally, his brief to the court offered conclusions and findings
for which no evidentiary foundation was laid. The trial court denied the PCR petition.
The client later sent Respondent a letter, complaining about his failure to introduce the
trial transcript, accusing him of malpractice, and demanding a refund of his mother’s $1,500.
Respondent replied, defending his actions and refusing to refund the payment. At the final hear-
ing before the Commission, Respondent still believed he acted in his client’s best interests under
the circumstances. The hearing officer concluded Respondent failed to provide the client with
competent services, in violation of Indiana Professional Conduct Rule 1.1
Count 2. When a client met with Respondent to discuss a divorce from her husband, Re-
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spondent made two attempts to kiss her, which she rebuffed. After this meeting, Respondent
filed a divorce action on behalf of the client. When the client subsequently notified Respondent
that she did not wish to proceed with the divorce, Respondent attempted to talk her into proceed-
ing with it. He filed a motion to dismiss the divorce action on February 9, 2007, and later that
day he sent the client several unsolicited sexually explicit emails. After Commission filed its
Emergency Petition, Respondent filed an objection denying he had attempted to kiss the client at
their meeting. He admitted sending sexually explicit emails to the client, but he stated he did this
only after she implored him to do so because she was lonely and it would make her feel like a
woman.
The hearing officer found the client's "testimonial denial of any such request clear and
convincing." (Report at 18.) Moreover, the hearing officer stated "the sending of such e-mails to
a client would have been grossly inappropriate conduct for any attorney, even were it true that
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the client made such a request." (Id.) The hearing officer concluded Respondent had violated
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Professional Conduct Rules 1.8(j) and 8.4(a) by attempting to have an improper sexual relation-
ship with a client, Rule 1.7(a)(2) by representing a client when the representation would be ma-
terially limited by the attorney's own self-interest, and Rule 1.16(a)(1) by failing to withdraw
from representation when the representation will result in violation of the Rules of Professional
Conduct or other law.
Prior misconduct. For his misconduct in two child custody proceedings, Respondent was
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issued a public reprimand for violating Professional Conduct Rule 1.2(d) for counseling a client
to engage, or assisting a client, in conduct that is fraudulent or criminal; Rule 3.5(b) for engaging
in ex parte communication with a judge; Rule 4.1(b) for knowingly failing to disclose that which
is required by law to be revealed; and Rule 4.4 for using means while representing a client that
have no substantial purpose other than to embarrass, delay, or burden third persons, or using
methods that violate the rights of that person. See In re Bash, 813 N.E.2d 777 (Ind. 2004) (with
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Shepard, C.J. and Dickson, J. dissenting, believing the sanction was too lenient).
Discussion
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Count 1. Professional Conduct Rule 1.1 requires an attorney to provide competent
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services to clients. Respondent failed to do so in representing the client in Count 1 in seeking
post-conviction relief. This apparently was not because of neglect, but because of his lack of
understanding of fundamental requirements for obtaining post-conviction relief. As a result, his
client may have lost a potentially meritorious challenge to his confinement conviction. See
Wethington v. State, 560 N.E.2d 496, 508 (Ind.1990) (where acts to establish element of one
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charge are coextensive with acts alleged as constituting criminal confinement, convictions on
both counts cannot stand). At the time of the hearing before the hearing officer, Respondent still
believed he had provided competent services to the client, but stated he was truly sorry if
mistakes were made. The Court agrees with the hearing officer that Respondent violated
Professional Conduct Rule 1.1 by failing to provide the client with competent services.
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Count 2. Even though the hearing officer found no evidence of a pattern of aberrant
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behavior, Respondent's conduct toward his client is markedly disturbing and violative of his
fiduciary duty to her. Respondent's response to the Emergency Petition contains dubious and
unnecessarily explicit details of his client's personal life. Moreover, Respondent has
demonstrated a willingness to lie under oath about his misconduct and to compound the distress
he caused his client by attempting to shift the blame to her.
Professional Conduct Rule 1.8(j), which explicitly prohibits having a sexual relationship
with a client (unless a consensual sexual relationship existed between them when the client-
lawyer relationship commenced), was added to the rules effective January 1, 2005. Even before
this amendment, however, this Court had clearly held that such relationships, and attempts at
such relationships, violate a lawyer's ethical duties to his or her client. See, e.g., In re Pacior, 770
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N.E.2d 273, 274 (Ind. 2002).
Although the client thwarted Respondent's attempt to engage in a sexual relationship with
her, Respondent's attempt itself was a breach of Rule 8.4(a), which prohibits attempting to
violate the Rules of Professional Conduct. In addition, Respondent violated Rule 1.7(a)(2) by
representing the client when the representation would be materially limited by the attorney's own
self-interest, i.e., his desire to engage in a sexual relationship with her. Respondent also violated
Rule 1.16(a)(1) by failing to withdraw from representing her when the continued representation
resulted in violation of the Rules of Professional Conduct.
We note the hearing officer found Respondent seemed to believe he was not constrained
by the Rules of Professional Conduct when he sent the emails because he had filed the motion to
dismiss her divorce action before sending them. At this point, Respondent was still the client's
attorney of record in the divorce action. Clearly the attorney-client relationship remained intact
at the time Respondent sent the emails to the client.
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Conclusion
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For this professional misconduct, the Court suspends Respondent from the practice of
law in this state for a period of not less than 180 days, beginning March 21, 2008. Respondent
shall not undertake any new legal matters between notice of this suspension and its effective
date, and Respondent shall fulfill all the duties of a suspended attorney under Admission and
Discipline Rule 23(26). At the conclusion of that period, Respondent may petition this Court for
reinstatement to the practice of law in this state, provided he pays the costs of this proceeding,
fulfills his duties as a suspended attorney, and satisfies the requirements for reinstatement of
Admission and Discipline Rule 23(4).
To be reinstated, Respondent must prove to the Commission by clear and convincing
evidence, among other things, that his attitude towards his misconduct is one of genuine remorse,
that he has a proper understanding of and attitude towards the standards that are imposed upon
members of the bar and will conduct himself in conformity with such standards, and that he can
safely be recommended to the legal profession, the courts and the public as a person fit to be
consulted by others and to represent them and otherwise act in matters of trust and confidence.
See Admis. Disc. R. 23(4)(b).
The costs of this proceeding are assessed against Respondent.
All Justices concur, except Boehm, J., who did not participate in this case.
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