FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
DISCIPLINARY COMMISSION
Duge Butler Donald R. Lundberg, Executive
Secretary
400 Barrister Building Seth Pruden, Staff Attorney
155 E. Market Street 115 West Washington Street, Suite
1165
Indianapolis, IN 46204 Indianapolis, IN 46204
IN THE
SUPREME COURT OF INDIANA
______________________________________________________________
IN THE MATTER OF )
) Case No. 49S00-9808-DI-464
EDWARD E. BROWN )
__________________________________________________________________
DISCIPLINARY ACTION
__________________________________________________________________
April 18, 2002
Per Curiam
Without the knowledge of his client, attorney Edward E. Brown settled
the client’s case for $10,000 and then caused the client’s signature to be
forged twice in order to steal the client’s $6,664.67 share of the funds.
For six years afterward, Respondent Brown avoided detection by ignoring the
client’s repeated inquiries regarding the status of her case. For that
professional misconduct and other violations, we today disbar the
respondent.
Our jurisdiction in this case arises from the respondent’s admission
to the bar of this state in 1970. This proceeding commenced with the
Commission’s filing of a three-count complaint, later amended to include a
fourth count, alleging professional misconduct by the respondent. We
appointed a hearing officer, who conducted an evidentiary hearing and
submitted her findings, conclusions and recommendation. Neither the
Commission nor the respondent petitioned for review of the hearing
officer’s report. The case is now before this Court for final review and
adjudication. Though the Court’s review is de novo, we accept and adopt
the findings of fact submitted by the hearing officer where the hearing
officer’s report is unchallenged. Matter of Chavez, 666 N.E.2d 399 (Ind.
1996).
Accordingly, we find under count I that the respondent represented a
client in a dissolution proceeding. At the final hearing, the respondent
represented to the court that he had deposited into his trust account the
couple’s 1994 federal tax refund check totaling $1,796. The check, issued
May 19, 1995, read “VOID AFTER ONE YEAR.” On June 12, 1996, the trial
court issued the final decree ordering the respondent to disburse $1,200 of
the tax refund check proceeds to the client’s ex-wife immediately. Despite
the respondent’s representations to the court and the one-year deadline for
cashing the check, the respondent did not deposit the tax refund check into
his attorney trust account until July 19, 1996 -- the same day the client’s
wife filed a grievance against him with the Disciplinary Commission. The
respondent did not distribute the funds to the client’s wife until October
1996, four months after the court ordered him to do so.
We find the respondent, by failing to deposit the check and disburse
the proceeds promptly, violated Ind. Professional Conduct Rule 1.3. That
rule requires lawyers act with reasonable diligence and promptness in
representing their clients.
As to Count III,[1] we find a woman hired the respondent to represent
her in a personal injury claim arising from an automobile accident seven
weeks earlier. The respondent did not file the client’s claim within the
two-year statute of limitations or notify her of that omission. The client
hired a new lawyer to determine the status of the case. The new lawyer
contacted the respondent’s office several times and, after those calls were
ignored, sent a letter to the respondent terminating the representation and
demanding the client’s file. The respondent did not respond.
The client filed a grievance with the Commission and a malpractice
suit against the respondent. The Commission twice sent the grievance to
the respondent by certified mail and demanded a written response. The
respondent did not respond.
We find the respondent violated Prof.Cond.R. 1.3 by failing to file
his client’s personal injury claim timely. He violated Prof.Cond.R. 1.4 by
failing to keep his client reasonably informed about the status of her
case, comply promptly with reasonable requests for information, and explain
matters to the extent necessary to permit his client to make informed
decisions regarding the representation. By failing to surrender his
client’s file promptly, the respondent failed to take steps to the extent
reasonably practicable to protect his client’s interests upon termination
of the representation, in violation of Prof.Cond.R. 1.16(d). We further
find the respondent violated Prof.Cond.R. 8.1(b) by failing to respond to
the Commission’s demand for information.[2]
As to Count IV, we find the respondent represented a woman in her
claim against her former son-in-law for repayment of a loan. The
respondent and the client agreed the respondent’s fee would be one-third of
any recovery. The respondent received $10,000 in settlement of that claim
prior to March 1992 and deposited those funds into his trust account. He
filed a “Release of Judgment” in the matter on March 22, 1992.
The respondent did not notify his client of the settlement. Instead,
on October 12, 1993, the respondent prepared a check on his trust account
made payable to the client in the sum of $6,664.67, representing her share
of the settlement funds. Either the respondent or his agent forged the
client’s name on the back of the check. The respondent negotiated the
check and used the proceeds to purchase a cashier’s check payable to the
client. The respondent or his agent forged the client’s name on the
cashier’s check. The respondent or his agent deposited all but $164.67 of
the proceeds into a bank account belonging to his wife and him and retained
the remainder in cash.
The client, unaware of the settlement, subsequently called the
respondent repeatedly, but he ignored her calls. After discovering the
settlement in 1999, she filed a grievance with the Commission. The
Commission twice demanded a written response from the respondent, but he
failed to respond. At hearing, the respondent testified he could not
remember the circumstances surrounding the deposit of the settlement
proceeds into his personal bank account eight years earlier, although he
offered to make arrangements to repay the client.
We find the respondent, by depositing or arranging the deposit of the
client’s funds into his personal account, violated Prof.Cond.R. 1.15(a),
which requires lawyers safeguard their clients’ funds in a trust account
and keep client funds separate from their own. The respondent violated
Prof.Cond.R. 1.15(b) by failing to disburse to the client her share of the
settlement.[3] We further find that the respondent, by committing theft
and forgery, violated Prof.Cond.R. 8.4(b), which prohibits a lawyer from
engaging in criminal acts reflecting adversely on the lawyer’s honesty,
trustworthiness, or fitness as a lawyer. We further find that the
respondent, through his series of transactions aimed at stealing his
client’s funds without detection, violated Prof.Cond.R. 8.4(c), which
prohibits lawyers from engaging in conduct involving dishonesty, fraud,
deceit or misrepresentation.
Given our finding of misconduct, we must determine the appropriate
sanction. We examine the nature of the misconduct, the actual or potential
injury flowing from the misconduct, the state of mind of the respondent,
the duty of this Court to preserve the integrity of the professional, the
potential injury to the public in permitting the respondent to continue in
the profession, and mitigating or aggravating circumstances. Matter of
Drozda, 653 N.E.2d 991(Ind. 1995).
The hearing officer recommended immediate disbarment, given the
severity of the respondent’s misconduct, his repeated lack of cooperation
with the Commission, and what she viewed as an “absolute lack of remorse .
. . (and) failure to accept responsibility for these gross violations even
during the final hearing.”
Disbarment is appropriate in instances of knowing conversion of client
funds where the client is harmed or where a lawyer engages in serious
criminal conduct involving fraud or theft. American Bar Association
Standards for Imposing Lawyer Sanctions 4.1, 4.61, 5.11; see also Matter of
Shumate, 647 N.E.2d 321 (Ind. 1995) (disbarment for failure to deliver
funds to clients, conversion of client funds, forging settlement check,
neglect, and lack of cooperation in disciplinary proceeding).
In light of these considerations, we conclude that the hearing
officer’s recommendation is appropriate. It is, therefore, ordered that the
respondent, Edward Brown, is hereby disbarred. The Clerk of this Court is
ordered to strike his name from the roll of attorneys.
The Clerk of this Court also is directed to provide notice of this
order in accordance with Ind. Admission and Discipline Rule 23(3)(d) and to
the Hon. Judith Hawley Conley, 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 Clerk of each of the
United States Bankruptcy Courts in this state with the last known address
of the respondent as reflected in the records of the Clerk.
Costs of this proceeding are assessed against the respondent.
Shepard, C.J., and Dickson, Boehm and Rucker, JJ., concur.
Sullivan, J., concurs in the findings of misconduct but would impose a
lesser sanction.
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[1] The Commission presented no evidence as to count II.
[2] Prof.Cond.R. 8.1(b) prohibits lawyers from knowingly failing to respond
to a lawful demand for information from a disciplinary authority.
[3] Prof.Cond.R. 1.15(b) requires lawyers promptly deliver to their clients
funds or other property the clients are entitled to receive.