FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
DISCIPLINARY COMMISSION
Karl L. Mulvaney Donald R. Lundberg, Executive
Secretary
BINGHAM & McHALE Dennis McKinney, Staff Attorney
Indianapolis, Indiana 46204 115 West Washington Street
Indianapolis, Indiana 46204
IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) CASE NO. 49S00-0103-DI-161
RAYMOND F. FAIRCHILD )
DISCIPLINARY ACTION
November 4, 2002
Per Curiam
Indianapolis attorney Raymond F. Fairchild neglected the legal
matters of five clients and subsequently failed to cooperate with the
Disciplinary Commission during resultant investigations. Because the
respondent has demonstrated significant efforts since those transgressions
to rectify the conditions he claims led to his misconduct, we find today
that a portion of his suspension from the practice of law we impose today
for his misconduct should be suspended to probation.
This matter comes before this Court upon the hearing officer’s report
on the Commission’s verified application for judgment on the complaint,
filed pursuant to Ind. Admission and Discipline Rule 23(14)(c), and
occasioned by the respondent’s failure to answer timely the Commission’s
verified complaint for disciplinary action. The hearing officer did hold
an evidentiary hearing on April 12, 2002, on issues in purported mitigation
and aggravation of the respondent’s conduct. Following that hearing and
the hearing officer’s report to this Court upon the Commission’s
application for judgment on the complaint, the respondent petitioned this
Court for review of the hearing officer’s findings, as well as to
supplement the record. We find that this latter petition should be denied.
The respondent is an attorney in good standing, admitted to practice
law in Indiana on September 22, 1971. He practices law in Indianapolis.
Taking the matters alleged in the Commission’s verified complaint to
be true, we now find that, pursuant to Count I, in 1992 a client hired the
respondent to represent her in a medical malpractice case. In October
1993, the respondent filed a malpractice claim on behalf of the client
before the Indiana Department of Insurance. In January 1998, the medical
review panel issued its opinion that the evidence did not support a
conclusion that the medical providers had failed to meet the applicable
standard of care. Shortly thereafter, the respondent filed suit against
the attending physician and the clinic where the injury occurred. On April
8, 1998, the defendants moved for summary judgment, based on the opinion of
the medical review panel. The trial court set the motion for summary
judgment for hearing on September 10, 1998. The respondent did not respond
to the motion, never submitting counter-affidavits or other evidence that
the defendants had breached their duty of care to the client. The
respondent failed to attend the summary judgment hearing, and on September
21, 1998, the court entered summary judgment for the defendants. The
respondent never advised the client that summary judgment had been entered
against her. In 1999, the client contacted the court to ascertain the
status of her case and only then learned that summary judgment had been
entered against her. The client routinely telephoned the respondent to
inquire about her case but he never took her telephone calls or called her
back.
The respondent twice failed to respond to the Commission’s later
demands for response to the grievance the client filed against the
respondent.
We find that the respondent violated Ind. Professional Conduct Rule
1.3[1] by failing to prepare and file with the court a response to the
defendants' motion for summary judgment and failing to attend the hearing
on defendants' motion for summary judgment to represent his client at that
hearing; Prof.Cond.R. 1.4(a)[2] by failing to keep the client informed
about the status of her case, including the entry of summary judgment
against her, and by failing to respond to her telephone calls inquiring
about her case; and Prof.Cond.R. 8.1(b)[3] by failing to respond to the
Commission's demand for response to the client’s grievance.
Pursuant to Count II, we now find that in August 1997, a client hired
the respondent to represent him in a worker’s compensation case against the
client’s former employer. The respondent filed a timely claim on the
client’s behalf with the Indiana Worker's Compensation Board. The
respondent was unable to develop strong medical evidence to support the
client’s disability claim, which prompted the client to agree to settle his
claim for $1,000. In September 1999, the client and his former employer
signed a compromise settlement agreement, and the Worker's Compensation
Board entered an award for $1,000. The former employer’s attorney later
provided to the respondent a check for $1,000 pursuant to the settlement.
The respondent misplaced the check and did not disburse to the client his
share. The client telephoned the respondent and wrote to him inquiring
about the payment of the settlement, but the respondent never replied. In
March of 2000, in responding to the Commission’s demand for a response to
the client’s grievance, the respondent found the check, which by that time
was stale.
We find that the respondent violated Prof.Cond.R. 1.3 by failing to
transmit to the client the settlement check before it went stale;
Prof.Cond.R. 1.4(a) by failing to advise the client that he had received
the settlement check, and by failing to respond to his client’s telephone
inquiries about his case; Prof.Cond.R 1.15(a)[4] by failing to deposit the
settlement check into his trust account, and Prof.Cond.R. 1.15(b)[5] by
failing to deliver promptly to the client his share of the settlement.
Pursuant to Count III, we now find that a client was injured on the
job in December 1995, had surgery on January 31, 1996, and returned to work
in June 1996. The client hired the respondent in January 1996 to seek
worker’s compensation for her. Shortly after the client’s accident, the
employer notified its insurance carrier. On January 15, 1996, the
respondent notified the insurer that he was representing the client, whose
medical bills the insurer had paid. Based on its physician's examination
of the client, the insurer determined that she was entitled to a total
permanent partial impairment (PPI) payment of $1,000. On November 21,
1996, the insurer sent its PPI offer directly to the client, even though it
had been advised that the respondent represented her. Shortly thereafter,
the insurer discovered its mistake and sent its PPI offer to the
respondent. On April 2, 1997, the insurer’s claim representative
telephoned the respondent's office to request a response to the offer. The
respondent never returned the insurer’s call.
On May 16, 1997, the insurer again communicated its offer, along with
all of the documents necessary to conclude settlement of the claim, to the
respondent. In early 1998, the insurer’s claim representative found the
claim was still unresolved. In reviewing the file, the claim
representative discovered a second medical opinion submitted by the
respondent for his client. The second opinion evaluated the client’s PPI
as greater than the insurer’s physician estimated. Consequently, the
insurer increased its PPI offer to $1,350 in an attempt to settle the
claim, sending the offer and new copies of the proposed agreement to the
respondent on February 23, 1998. The respondent never replied.
The client attempted to contact respondent with no success between
February 1998 and April 1999.
We find that the respondent violated Prof.Cond.R. 1.3 by failing for
more than four years to prosecute the client’s claim before the Worker’s
Compensation Board; Prof.Cond.R. 1.4(a) by failing to respond to the
client’s inquiries about her case from February 1998 through
April, 1999; and Prof.Cond.R. 1.4(a) by failing to inform the client of the
insurer’s increased PPI offer.
Under Count IV, we now find that in July 1992, a client suffered an
on-the-job injury. The client initially hired another attorney to
represent him in his worker’s compensation claim. The client's employer’s
insurance carrier paid the client temporary total disability (TTD) payments
of approximately $360 per week from July 25, 1992 to June 18, 1993. On
June 11, 1993, the insurer offered the client a permanent partial
impairment (PPI) payment of $5,500, based on a physician’s evaluation of
the client. The client did not accept the offer. The client’s initial
attorney withdrew in January 1995, and the client then hired the respondent
to pursue the worker’s compensation claim. The respondent obtained the
client’s file, including the PPI offer of $5,500 and the insurer’s notice
to the client that its TTD payments would end on June 18, 1993. On June
27, 1995, the insurer offered the client a PPI payment of $5,000, based on
a physician’s evaluation of the client. The offer was contemporaneously
communicated to the respondent. The respondent never filed an application
for adjustment of claim with the Worker’s Compensation Board on the
client's behalf.
From the summer of 1995 until the client filed a grievance with the
Commission in February 1999, the client repeatedly telephoned the
respondent to check on the status of his case claim. The respondent never
returned the calls. On June 4, 1998, the client's wife sent a letter to
respondent requesting information concerning the work the respondent had
done to that point. The respondent never replied.
The Commission twice demanded from the respondent a response to the
client’s subsequent grievance. The respondent did not respond to the
demands for some 21 months after the response was due.
We find that the respondent violated Prof.Cond.R. 1.3 by failing to
timely prosecute the client's worker’s compensation claim; Prof.Cond.R.
1.4(a) by failing to keep the client informed about the status of his case,
and by failing to respond to his telephone calls inquiring about his case;
and Prof.Cond.R. 8.1(b) by failing promptly to respond to the Commission's
demand for information.
As to Count V, we now find that a client was injured at his workplace
on May 4, 1996. In June 1996, the client hired the respondent to represent
him in a worker’s compensation claim. The employer's physicians eventually
cleared the client to return to work, finding no permanent partial
impairment. The respondent sent the client to a physician for examination.
In a letter to respondent, the physician reported that he had found a
congenital abnormality that might have been aggravated by the client's
accident, and recommended a CT scan. The respondent concluded that the
medical opinion foreclosed any possibility of pursuing a worker's
compensation claim because the physician did not assign a permanent partial
impairment rating to the client. The respondent did not advise the client
that he did not believe he could bring a worker's compensation case on his
behalf and he never asked the client if he wanted a CT scan or re-
examination by another physician. The respondent never filed an
application for adjustment of claim with the Worker’s Compensation Board on
behalf of the client.
Although the client frequently telephoned the respondent, his calls
went unanswered.
The client later hired a new lawyer, who arranged for the client to
be examined by another physician, who determined that the client suffered a
5% permanent partial impairment.
We find that the respondent violated Prof.Cond.R. 1.3 by failing to
advise the client of the respondent's evaluation of the client's case
following the physician’s report, and Prof.Cond.R. 1.4(a) by failing to
respond to the client's telephone calls, and by failing to ask the client
whether he wanted to employ another physician to attempt to prove he had
suffered permanent partial impairment.
At hearing on extenuating and aggravating factors, the respondent
presented evidence which he contended was mitigating: that he suffered
from personal and emotional problems during the time of his misconduct,
including his wife’s serious illness and the death of both his and his
wife’s parents. He also presented evidence of his good reputation
generally in the local legal community. The hearing officer specifically
attributed mitigating value to this evidence.
The Commission presented evidence of three aggravating circumstances:
that the respondent committed multiple violations of the Rules of
Professional Conduct; that he engaged in misconduct when he had substantial
experience in the practice of law, being an attorney since 1971; and that
he was privately reprimanded by this Court in 1984 for unrelated conduct.
The hearing officer also found a fourth aggravating circumstance not
argued by the Commission: that the respondent showed a bad faith
obstruction of the disciplinary proceeding by intentionally failing to
comply with the rules or orders of the disciplinary agency.
The respondent also contended that evidence that he has regularly
attended the Indiana Judges and Lawyers Assistance Program ("JLAP")
Depression Support Group and that he has made some efforts to see a
psychiatrist in the near future should be viewed with mitigating value.
The hearing officer concluded, however, that the respondent offered no
medical evidence that he is suffering from a mental disability or that his
misconduct was caused by a mental disability, and therefore failed to find
that the respondent suffers from a recognized physical or mental disability
or impairment. Consequently, the hearing officer declined to attach
mitigating value to the respondent's attendance at the JLAP Depression
Support Group and his belated efforts to seek an assessment.
The respondent also urges us to recognize his restitution to his
clients (or, in two instances, his promise that he will provide
restitution), as a mitigating factor. We conclude, as did the hearing
officer, that the respondent’s restitution or promise of restitution should
not be viewed as an extenuating factor, given that in each case he provided
it to his former clients only after the client had filed a grievance with
the Commission.
Although we agree with the hearing officer that the respondent has
failed to demonstrate a mental disability as a causal factor in his
misconduct, we do ascribe some mitigating value to the respondent’s
apparent efforts to address the personal stresses that contributed to his
misconduct, while nonetheless recognizing that the respondent’s neglect was
severe and warrants suspension designed to protect the public from further
harm. See e.g., Matter of Roberts, 727 N.E.2d 705 (Ind. 2000) (suspension
for not less than one year for seven counts of client neglect and failure
to respond to the Commission); Matter of Golding, 700 N.E.2d 464 (Ind.
1998) (suspension for not fewer than nine months for five counts of client
neglect and failure to respond to the Commission). More specifically, the
respondent’s efforts so far lead us to conclude that he should be allowed
to continue to practice after a period of suspension, provided he
continues to obtain the assistance he needs to ensure that he does not
commit similar ethical violations in the future.
Accordingly, we order that the respondent be suspended from the
practice of law for a period of not less than one (1) year, effective
December 14, 2002. The first six (6) months of the suspension shall be
executed, with the balance stayed to a two (2) year period of probation.
The terms of this probation are as follows:
• The respondent shall continue to be monitored by JLAP and
thereafter as JLAP recommends to the Commission;
• The respondent shall continue to attend regularly monthly
depression support group meetings as recommended by JLAP;
• The respondent shall agree that information from JLAP may be
shared with the Commission;
• The respondent shall follow-through on assessment and treatment
recommendations from the physicians noted in the respondent’s
Petition for Review;
• The respondent shall continue to utilize computer systems and
software to keep current on active cases; and
• The respondent shall pay all costs pertaining to his treatment
and monitoring.
Should the respondent successfully conclude his term of probation, he
shall automatically be reinstated fully to the practice of law in this
state. Should the Commission advise this Court that the respondent has
failed to meet any of the terms of this probation, the stay of the second
six (6) months of the respondent’s suspension shall be rescinded, and the
respondent shall immediately be suspended for the balance of his term of
suspension, after which any reinstatement shall be subject to the
provisions of Admis.Disc.R. 23(4).
The Clerk of this Court is directed to provide notice of this order in
accordance with Admis.Disc.R. 23(3)(d) and to the hearing officer, and to
provide 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
with the last known address of respondent as reflected in the records of
the Clerk.
Costs of this proceeding are assessed against the respondent.
-----------------------
[1] Professional Conduct Rule 1.3 provides:
A lawyer shall act with reasonable diligence and promptness in
representing a client.
[2] Professional Conduct Rule 1.4(a) provides:
(a) A lawyer shall keep a client reasonably informed about the status
of a matter and promptly comply with reasonable requests for information.
[3] Professional Conduct Rule 8.1(b) provides:
An applicant for admission to the bar, or a lawyer in connection with
a bar admission application or in connection with a disciplinary matter,
shall not:
. . .
(b) fail to disclose a fact necessary to correct a misapprehension
known by the person to have arisen in the matter, or knowingly fail to
respond to a lawful demand for information from an admissions or
disciplinary authority, except that this Rule does not require disclosure
of information otherwise protected by Rule 1.6.
[4] Professional Conduct Rule 1.15(a) provides:
A lawyer shall hold property of clients or third persons that is in a
lawyer's possession in connection with a representation separate from the
lawyer's own property. Funds shall be kept in a separate account
maintained in the state where the lawyer's office is situated, or elsewhere
with the consent of the client or third person. Other property shall be
identified as such and appropriately safeguarded. Complete records of such
account funds and other property shall be kept by the lawyer and shall be
preserved for a period of five years after termination of the
representation. A lawyer may deposit his or her own funds reasonably
sufficient to maintain a nominal balance.
[5] Professional Conduct Rule 1.15(b) provides:
Upon receiving funds or other property in which the client or third
person has an interest, a lawyer shall promptly notify the client or third
person. Except as stated in this rule or otherwise permitted by law or by
agreement with the client, a lawyer shall promptly deliver to the client or
third person any funds or other property that the client or third person is
entitled to receive and, upon request by the client or third person, shall
promptly render a full accounting regarding such property.