|FOR THE RESPONDENT |FOR THE INDIANA SUPREME COURT |
| |DISCIPINARY COMMISSION |
| | |
|No appearance. |Donald R. Lundberg, Executive |
| |Secretary |
| |115 West Washington Street, Suite 1060|
| |Indianapolis, IN 46204 |
IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) CASE NO. 22S00-0107-DI-319
ALAN ROY MILLER )
DISCIPLINARY ACTION
December 11, 2001
Per Curiam
By failing to answer the verified complaint for disciplinary action
filed against him, the respondent, Alan Roy Miller, effectively has
admitted to two counts of client neglect. Because of his neglect, we find
that he should be suspended from the practice of law.
The Disciplinary Commission filed a verified complaint for
disciplinary action against the respondent on July 9, 2001, and served a
summons and complaint upon the respondent at his addresses as reflected in
the Roll of Attorneys. Pursuant to Ind.Admission and Discipline Rule
23(14), as amended effective January 1, 2001, a respondent to a
disciplinary complaint shall answer the complaint within 30 days after
service of the summons and complaint (unless additional time to respond has
been procured by motion); otherwise, the allegations in the complaint shall
be taken as true.[1] Pursuant to that rule, the Commission has now filed
its Verified Petition for Judgment on the Complaint, therein stating the
respondent has not answered its complaint and summons. Since no hearing
officer has yet been appointed to hear this matter and because no
appearance has been filed by or on behalf of the respondent, the
Commission’s petition is now before this Court. We find that the
Commission’s petition should be granted.
Accordingly, taking the allegations in Count I of the complaint as
true, we now find that on April 6, 1999, the respondent entered an
appearance on behalf of a defendant charged with armed robbery. The
defendant was not able to post bail and remained incarcerated. During this
time, the defendant was unable to contact the respondent by telephone
because the respondent’s office did not accept collect calls. The
respondent did not respond to the defendant’s letters and never visited him
in jail or during the defendant’s 90-day stay in a state hospital. The
defendant met the respondent for the first time in February 2000 during the
defendant’s second court appearance. The respondent had no explanation for
the defendant why he had not answered his letters, but promised to listen
to the defendant’s taped statement and visit him in jail in two weeks. The
visit never occurred. The defendant ultimately pleaded guilty to robbery
and burglary and was sentenced to nine years incarceration, with four years
of that time suspended. While investigating the defendant’s grievance
against the respondent, pursuant to Admis.Disc.R. 23(10)(a)(2) the
Commission sent at least four demands for response to the respondent at his
addresses as reflected on the Roll of Attorenys. The respondent never
responded.
We find that these facts establish that the respondent violated
Ind.Professional Conduct Rule 1.3 by failing to act with reasonable
diligence and promptness in representing the defendant. He violated
Prof.Cond.R. 1.4 by failing to keep the defendant reasonably informed about
the status of the case, failing to respond to his requests for information,
and by failing to explain the matter to him to the extent reasonably
necessary to permit him to make informed decisions regarding the
representation. By failing to respond to the Commission’s lawful demands
for information during its investigation, the respondent violated
Prof.Cond.R. 8.1(b).
Pursuant to Count II of the verified complaint, we find that on
October 29, 2000, the respondent, while serving as a public defender,
entered an appearance on behalf of a defendant charged with residential
entry. The defendant was unable to contact the respondent by telephone or
otherwise prior to a hearing on June 6, 2000. During this time, the
respondent failed to appear at the defendant’s scheduled pre-trial hearing.
On June 6, 2000, the defendant pleaded guilty as charged for a time-served
sentence. During its investigation of the defendant’s grievance, the
respondent failed to respond to at least three demands for information
tendered to him by the Commission.
By his actions in Count II, we find that the respondent violated
Prof.Cond.R. 1.3, 1.4, and 8.1(b).
Having found misconduct, we now turn to the issue of proper sanction.
Precedent indicates that the appropriate discipline for relatively
isolated instances of client neglect, coupled with a failure to respond to
the Commission, is a relatively short period of suspension. See, e.g.,
Matter of Jones, 737 N.E.2d 1158 (Ind. 2000) (30 days for one count of
neglect, lack of adequate communication, failure to respond to Commission);
Matter of Corbin, 716 N.E.2d 429 (1999) (failure to seek final hearing in
dissolution matter, failure to pursue client's tort claim, failure to
respond to client telephone messages and advise clients regarding status of
litigation, failure to provide clients with case materials upon termination
of representation, and failure to respond to disciplinary investigation
warranted 90 day suspension). However, in this case we are troubled by
the respondent’s complete lack of action, both with regard to the two
criminal defendants as well as during the Commission’s investigation of
these matters. The respondent has even failed to acknowledge in any way
the Commission’s verified complaint. The respondent’s complete lack of
involvement leads us to conclude that, in the interests of protecting the
public and the profession, he should be required to demonstrate his fitness
before being permitted to resume his status as an attorney in this
state.[2]
Accordingly, we order that the respondent, Alan Roy Miller, be
suspended from the practice of law in this state, effective January 1,
2002, for a period of not fewer than sixty (60) days, at the conclusion of
which his reinstatement shall be conditioned upon his satisfaction of the
requirements of reinstatement pursuant to 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 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] Indiana Admission and Discipline Rule 23(14) provides, in relevant
part:
a) [. . .] The case shall be heard on the complaint and an answer which
shall be filed by the respondent within thirty (30) days after service
of the summons and complaint, or such additional time as may be
allowed upon written application to the hearing officer that sets
forth good cause. . . . An answer shall assert any legal defense.
. . .
b) The answer shall admit or controvert the averments set forth in the
complaint by specifically denying designated averments or paragraphs
or generally denying all averments except such designated averments or
paragraphs as the respondent expressly admits. If the respondent
lacks knowledge or information sufficient to form a belief as to the
truth of an averment, he or she shall so state and his statement shall
be considered a denial. If in good faith the respondent intends to
deny only a part of an averment, he or she shall specify so much of it
as is true and material and deny the remainder. All denials shall
fairly meet the substance of the averments denied. Averments in a
complaint are admitted when not denied in the answer. The answer may
assert any legal defense.
. . .
(c) When a respondent has failed to answer a complaint as required by
this section and that fact is made to appear by affidavit and an
application for judgment on the complaint, the allegations set forth
in the complaint shall be taken as true. If a respondent who has
failed to answer has appeared in the action, he or she (or, if
appearing by counsel, his or her counsel) shall be served with written
notice of the application for judgment on the complaint at least seven
(7) days prior to the hearing on such application. Upon application
for judgment on the complaint and in the absence of any answer by the
respondent, the hearing officer shall take the facts alleged in the
complaint as true and promptly tender a report to the Supreme Court in
conformity with subsection (h). If a hearing officer has not been
appointed by the time an application for judgment on the complaint is
filed and no appearance has been filed by or on behalf of the
respondent, the Supreme Court shall act directly on the application
for judgment on the complaint.
[2] We imposed a similar discipline in another case where a lawyer’s
chronic neglect of client matters and this Court’s resolution of that
misconduct raised concerns about the lawyer’s fitness to continue in the
practice of law. Matter of Cushing, 663 N.E.2d 776 (1996), reinstatement
granted 693 N.E.2d 530 (suspension for 30 days without automatic
reinstatement for neglect, lack of adequate communication, and failure to
protect client's interests upon termination of representation; exacerbated
by failure to attend resultant disciplinary hearing).