FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
DISCIPLINARY COMMISSION
Kevin McGoff Donald R. Lundberg, Executive
Secretary
Indianapolis, Indiana 46240 Fredrick Rice, Staff Attorney
Indianapolis, Indiana 46204
IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) CASE NO. 49S00-0203-DI-174
SCOTT I. RICHARDSON )
DISCIPLINARY ACTION
August 8, 2003
Per Curiam
We find today that by continuing to prosecute a lawsuit in order to
burden a third party and by falsely answering interrogatories in order to
conceal his own assets, the respondent violated the Rules of Professional
Conduct and should be suspended from the practice of law.
This case commenced upon the Disciplinary Commission’s verified
complaint for disciplinary action against respondent Scott I. Richardson.
The matter proceeded to hearing before a hearing officer appointed by this
Court. The hearing officer conducted a full evidentiary hearing and has
now tendered to this Court his findings and conclusions. The matter is now
before us for final resolution.
The respondent was admitted in 1992 and practices in Indianapolis. In
1994, the respondent moved into his girlfriend’s house. He stored several
items in her garage, including a desk and credenza, some scuba gear, and
some miscellaneous clothing. In January 1995, upon moving out of the
house, the respondent left behind the desk, credenza, scuba gear, and
clothing. On several occasions during the subsequent months, the
girlfriend asked the respondent when he would remove the belongings. The
respondent gave no definite answer.
The girlfriend later told the respondent that she had decided to sell
her home. Shortly thereafter, she advised the respondent that she never
wanted to see him again. In January 1996, in anticipation of moving and
assuming, by his lack of action, that the respondent had abandoned the
items he left in her garage, the now-former girlfriend gave the desk and
credenza to a friend and gave the clothing to her mother for sale in a
garage sale. After the former girlfriend moved, she placed various items
into storage. She was unaware the scuba gear was among the items she
placed in storage.
In October 1996, the respondent sent the former girlfriend a
certified letter threatening further action if she did not immediately
assure him that his belongings were available for him to pick up. By
letter, she advised the respondent that she considered the items abandoned,
given that the respondent knew she was moving and ignored her earlier pleas
to retrieve his belongings. In July 1997, without further communication
with the former girlfriend, the respondent filed a complaint alleging
conversion of his property (to which he attached an inflated estimated
value of $8,000) and seeking treble damages of $24,000, as well as attorney
fees. The respondent obtained a default judgment for $8,100. After
obtaining counsel, the girlfriend later managed to have that judgment set
aside, and filed a counterclaim for, inter alia, abuse of process. She
also demanded a jury trial. The respondent represented himself during the
proceedings.
During the fall of 1998, the former girlfriend attempted
unsuccessfully to settle the matter, offering to return the items if the
respondent agreed to dismiss the lawsuit. In early 1999, the former
girlfriend actually returned all the items to the respondent, save for
clothing that had been sold in the garage sale. The respondent still
refused to agree to dismiss the lawsuit.
During pre-trial proceedings, the trial court judge advised the
respondent that he did not feel the respondent had a strong claim. The
matter proceeded through jury trial. The former girlfriend’s attorney
moved for judgment on the evidence at the conclusion of the respondent’s
evidence, but the court denied that motion. Ultimately, the jury found
against the respondent and found for the former girlfriend on her abuse of
process claim.[1] The jury awarded her $1 as damages and $7,400 for
attorney fees. Thereafter, the respondent filed a motion to correct
errors, which was denied. He appealed the denial to the Indiana Court of
Appeals, which affirmed the jury verdict and ordered the respondent to pay
the former girlfriend’s appellate attorney fees, later determined to be
about $7,000. During proceedings supplemental in execution of the
judgment, the former girlfriend propounded interrogatories to the
respondent. One question asked:
Do you own any interest in any company(s) or corporation(s) or own any
stocks, bonds, mutual funds, CD’s, or have any other investments? If
so, give the name of each entity you invest with, the number of shares
(if applicable), the amount invested and the value of each investment
as of April 6, 1999.
The respondent (under oath) answered “none,” when in fact he (1) owned
certain investments that he later sold for a $16,849 gain over basis and
(2) he was the president and sole shareholder of an entity doing business
as Indiana Real Estate, Inc.
The Commission alleged that the respondent violated Ind.Professional
Conduct Rule 4.4, which prohibits lawyers, during the course of a
representation, from using means that have no substantial purpose other
than to embarrass, delay, or burden a third person, for “pressing his
lawsuit against [the former girlfriend] primarily for the purpose of
harassing [her].” The Commission also charged the respondent with
violating Prof.Cond.R. 8.4(d), which prohibits lawyers from engaging in
conduct that is prejudicial to the administration of justice, for his
pursuit of the lawsuit. The Commission also charged the respondent with
violating Prof.Cond.R. 8.4(c), which provides that it is professional
misconduct for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation. The basis for that claim is the respondent’s
knowing false answers to the interrogatories.
The hearing officer found that, because the respondent’s lawsuit
proceeded to jury trial upon the former girlfriend’s demand and because the
claim survived pre-trial motions for disposition and a motion for judgment
on the evidence, the Commission failed to meet its burden of proof as to
Prof.Cond.R. 4.4 and 8.4(d). The hearing officer found that the respondent
violated Prof.Cond.R. 8.4(c) by answering falsely the interrogatories.
Neither party petitioned this Court for review of the hearing officer’s
findings. Where neither party petitions this Court for review, we accept
and adopt the hearing officer’s findings, but reserve final judgment as to
misconduct and sanction. Matter of Davidson, 761 N.E.2d 854 (Ind. 2002).
We find that the respondent violated Prof.Cond.R. 4.4 and 8.4(d), as
well as Prof.Cond.R. 8.4(c). The former girlfriend, in good faith,
attempted several times to ensure the respondent received his property.
The respondent nonetheless filed a conversion claim against her. The
justification and utility of the respondent’s claim evaporated once the
former girlfriend, after significant effort on her part, returned his
property. Instead of agreeing to seek dismissal of his claim, the
respondent continued to litigate the lawsuit, using almost all available
procedural vehicles to prolong the litigation. His persistence in
prosecuting the action served no legitimate purpose and served only to
burden his former girlfriend. Accordingly, we find the respondent
violated Prof.Cond.R. 4.4 and 8.4(d). Further, by knowingly providing
false answers to her later interrogatories, the respondent violated
Prof.Cond.R. 8.4(c). The respondent points out that, at the time he
answered the interrogatories, the stock he concealed “had almost no value.”
That argument is without merit because the interrogatory question asked
whether he owned any corporate interest, regardless of the significance of
the interests’ value.
We now turn to the issue of proper sanction. The hearing officer
recommended a suspension of 30 days, but upon a Prof.Cond.R. 8.4(c)
violation only. In his memorandum on sanction, the respondent would have
us believe that a reprimand is appropriate in this instance. He cites
opinions of this Court where attorneys who improperly notarized documents
or otherwise misled courts or third parties and were reprimanded.[2] These
cases are distinguishable from the present case because they arose from
incidents where lawyers engaged in various deceptions to avoid client harm,
inconvenience, or delay, or, at worst, from misguided efforts to obtain an
advantage for a client. While not diminishing the gravity of the
misconduct in the cases cited by the respondent, we view the respondent’s
acts as more serious. The respondent chose to abuse the legal process,
which ultimately led to the imposition of attorney fees against him. He
then deceived the adverse party in order to shield his own assets from
judgment collection after imposition of attorney fees. In another instance
where an attorney untruthfully answered interrogatories, this Court imposed
a 60-day suspension pursuant to agreed resolution. Matter of Relphorde,
644 N.E.2d 874 (Ind. 1994). Lawyers are specially situated so as to be
uniquely able to inflict harm upon others. The respondent abused his
position in doing so in this case, and we therefore find his actions
warrant a period of suspension.
It is, therefore, ordered that the respondent, Scott I. Richardson,
is hereby suspended from the practice of law for a period of ninety (90)
days, beginning September 20, 2003, at the conclusion of which he shall be
automatically reinstated to the practice of law.
The Clerk of this Court is directed to provide notice of this order
in accordance with Admis.Disc.R. 23(3)(d), to the hearing officer, and to
the clerk of the United States Court of Appeals for the Seventh Circuit,
the clerk of each of the United States District Courts in this state, and
the clerks of the United States Bankruptcy Courts in this state.
Costs of this proceeding are assessed against the respondent.
All Justices concur.
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[1] The judgment provided: “It is further ordered that Plaintiff, Scott
Richardson, has abused the legal process by intentionally causing legal
process to be issued against the Defendant . . .to achieve an end not
intended by law.”
[2] See, e.g., Matter of Bridenhager, 735 N.E.2d 1177 (Ind. 2000) (public
reprimand for lawyer who improperly notarized document on behalf of
client); Matter of Gianetto, 781 N.E.2d 1138 (Ind. 2003) (public reprimand
pursuant to agreed resolution for lawyer who notarized client’s signature
in blank, then forwarded the papers for client’s signature after the fact);
Matter of Mellinger, 768 N.E.2d 431 (Ind. 2002) (public reprimand for
lawyer who changed two provisions of proposed settlement agreement that had
already been signed by client, without notifying client).