FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
DISCIPLINARY COMMISSION
No appearance. Donald R. Lundberg, Executive Secretary
115 West Washington Street
Indianapolis, Indiana 46204
IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) CASE NO. 02S00-9902-DI-145
ROLAND W. GARIEPY )
DISCIPLINARY ACTION
October 8, 2002
Per Curiam
Under a 17-count complaint for disciplinary action, we find that
attorney Roland W. Gariepy failed to take action on behalf of his clients,
failed adequately to communicate with them about their cases, failed to
refund unearned advance-paid legal fees or surrender case file materials to
his clients upon termination of representation, and failed to cooperate
with the Disciplinary Commission during its investigation of these matters.
The respondent was also criminally convicted of filing a false federal
income tax return. We conclude that these acts warrant his disbarment.
This matter comes before this Court upon the hearing officer's
findings of fact and conclusions of law, filed after review of the
Commission’s application for judgment on the complaint. The Commission
filed its application pursuant to Ind.Admission and Discipline Rule
23(14)(c), which directs that the allegations contained in the Commission’s
verified complaint for disciplinary action be taken as true where the
respondent fails to answer the complaint.
The respondent is a suspended attorney, formerly practicing law in
Fort Wayne, Indiana, who was admitted to practice law in the state of
Indiana on November 19, 1969. On April 9, 1999, this Court suspended the
respondent pendente lite from the practice of law due to his felony
conviction of failing to file an income tax return for 1993.
Under 13 counts contained in the verified complaint, the facts found
by the hearing officer are roughly the same: the respondent would
undertake to represent a client, then fail to take action consistent with
the client’s wishes or fail to take action at all. The clients, concerned
over the progress of their legal matters, attempted to contact the
respondent with no success. In five of the counts, the respondent failed
to refund unearned advance-paid legal fees or return to clients case file
materials to which they were entitled upon termination of representation.
In some instances, clients had to resort to formal legal action to secure
return of unearned fees from the respondent. In 13 of the counts, the
respondent failed to respond to the Commission's later demands for
responses to the client grievances filed against him.
We now find that the respondent failed to provide competent
representation in violation of Ind.Professional Conduct Rule 1.1; that he
failed to abide by clients’ decisions concerning the objectives of their
representations in violation of Prof.Cond.R. 1.2(a); and that he failed to
act with reasonable diligence and promptness in representing his clients in
violation of Prof.Cond.R. 1.3. He violated Prof.Cond.R. 1.4(a) by failing
to keeps his clients reasonably informed about the status of their legal
matters and promptly to comply with reasonable requests for information
from his clients about the status of their cases, and Prof.Cond.R. 1.4(b)
by failing to explain matters to one client to the extent reasonably
necessary to permit the client to make informed decisions regarding the
representation. By failing to surrender to his clients papers and property
to which they were entitled upon termination of representation, the
respondent violated Prof.Cond.R. 1.16(d). By failing to comply with the
Commission’s lawful demands for information, the respondent violated
Prof.Cond.R. 8.1(b).
In addition to the foregoing examples of neglect of his client’s
cases, the respondent also engaged in other misconduct. Pursuant to Count
8, we find that a client sued the respondent for malpractice. The
respondent settled the matter by agreeing to pay the client the sum of $200
per month. Several of the respondent’s settlement checks were dishonored
for insufficient funds. The respondent later failed to respond to the
Commission’s demands for response to the client’s grievance against the
respondent.
We find that by his conduct in Count 8, the respondent violated
Prof.Cond.R. 8.4(b) by committing a criminal act, check deception, that
reflects adversely on his honesty, trustworthiness, and fitness as a lawyer
in other respects, and Prof.Cond.R. 8.1(b).
As to Count 14, we find that the respondent agreed to defend a client
against a charge of driving under the influence. The client paid the
respondent a $1,500 retainer. After negotiating a plea and representing
the client through sentencing, the respondent billed the client $1,000.
When the client’s father later called to complain in light of the earlier
$1,500 payment, the respondent stated that the $1,500 was a retainer and
hung up on the father. The respondent later failed to reply to the
Commission’s demands for a response to the client’s grievance.
By failing to advise his client of the rate or basis for his fee
before or within a reasonable time after commencing the representation, the
respondent violated Prof.Cond.R. 1.5(b). By failing to respond to the
Commission, he violated Prof.Cond.R. 8.1(b).
Under Count 15, we find that the respondent received a refund check
for $13,700 on behalf of a client. The respondent lost the check in one of
the client's other files. While the check was lost, the payor stopped
payment of the check.
We find that the respondent violated Prof.Cond.R. 1.15(a) by failing
to keep his client's property in his possession in the course of a
representation identified and appropriately safeguarded.
Under Count 17, we find that the respondent was charged by
information on November 13, 1998 in the United States District Court for
the Northern District of Indiana with four counts of filing false income
tax returns for the years of 1990, 1991, 1992 and 1993, all in violation of
26 U.S.C. §7206(1) and felonies under the laws of the United States. Also
on November 13, 1998, the respondent and the United States filed a "Plea
Agreement" in the respondent's case in which the respondent agreed to plead
guilty to Court 4 of the charge, alleging that he knowingly filed a false
income tax return for the 1993 tax year. On December 4, 1998, the
respondent executed a waiver of indictment and entered a guilty plea to
Court 4. On February 12, 1999, the respondent was convicted of filing a
false return for 1993 and sentenced to four months incarceration in the
U.S. Bureau of Prisons beginning April 5, 1999; one year of supervised
release after incarceration, and ordered to pay restitution to the Internal
Revenue Service in the amount of $45,731. The respondent did not respond
to a demand from the Commission for information in response to the
grievance based on the respondent's conviction.
We find that by his conviction and subsequent failure to respond to
the Commission’s demand for information, the respondent violated
Prof.Cond.R. 8.4(b) and 8.1(b).
The hearing officer recommended that the respondent be disbarred. We
note that in similar cases of serial neglect of client matters, this Court
has ordered disbarment. See, e.g., Matter of Williams, 764 N.E.2d 613
(Ind. 2002) (six counts of client neglect, along with failure to cooperate
with the Commission); Matter of Radford, 746 N.E.2d 977 (Ind. 2001) (14
counts of neglect of client matters and willful deception of clients).
Filing a false federal income tax return has also garnered significant
sanction. See, e.g., Matter of Transki, 620 N.E.2d 16 (Ind. 1993) (felony
filing of false federal income tax—90 day suspension from the practice of
law). Finally, the respondent’s failure to refund client funds and his
persistent refusal to cooperate with the Commission is also serious
misconduct warranting stringent sanction.
Accordingly, we find that the respondent, Roland W. Gariepy, should be
disbarred. The Clerk of this Court is directed to strike his name from the
Roll of Attorneys.
The Clerk of this Court is further directed to provide notice of this
order in accordance with Admis.Disc.R. 23(3)(d) and to Everett E. Goshorn,
the hearing officer in this matter, 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.