FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
DISCIPLINARY COMMISSION
Ronald E. Elberger Donald R. Lundberg, Executive
Secretary
Indianapolis, IN Seth T. Pruden, Staff Attorney
Indiana Supreme Court Disciplinary
Commission
Indianapolis, IN
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IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) Case No. 49S00-0008-DI-459
ROBERT M. BAKER, III )
_____________________________________________________________________
DISCIPLINARY ACTION
_____________________________________________________________________
November 26, 2001
Per Curiam
Lawyer Robert M. Baker, III, violated the Rules of Professional
Conduct by sending to an opposing party a letter concerning matters related
to the respondent’s representation of a client, where the respondent knew
the opposing party was represented by counsel and where the opposing
party’s counsel did not consent to the contact.
This matter comes before us upon the respondent and the Disciplinary
Commission’s Statement of Circumstances and Conditional Agreement for
Discipline, wherein they agree that the respondent engaged in misconduct
and that a public reprimand is an appropriate discipline. That agreement
is now before us for final approval. The respondent was admitted to
practice in this state in 1976.
The parties agree that beginning about December 13, 1991, the
respondent was hired to represent the interests of a principal (hereinafter
the “client”) in a pool construction and supply business that was
contemplating reorganization. The reorganization of that business
culminated on March 11, 1992, when its construction aspect was split from
the pool supply business, whose principal was the client’s former partner.
The former partner was represented by attorney Deckard, who also
represented the client in certain personal matters until April 10, 1992.
During the period of the reorganization, the client believed that Deckard
represented the client’s interests with regard to indemnities and
guaranties in general and liabilities to the principals under bonding
arrangements.
At the time of the split, the pool business was in the midst of two
pool construction projects, one for a school corporation and another for a
city. The parties agreed that the client’s pool construction business
would complete the jobs as subcontractor for the pool supply business. A
dispute arose regarding payments for the projects to the construction
business. On August 3, 1993, the construction business filed suit against
the school corporation and the company that provided construction bonds for
the project. Deckard entered his appearance for the bonding company.
The respondent reasonably believed that Deckard had a conflict of
interest in representing the bonding company in the matter due to his
former representation of the respondent’s client and the client’s interests
relative to the pool construction business. On September 2, 1993, the pool
construction business filed suit against the city and the bonding company.
On September 23, 1993, the respondent wrote to Deckard asserting that
Deckard should be disqualified from serving as counsel in the school
corporation and city suits due to a conflict of interest. Without the
consent of Deckard, the respondent forwarded the letter to Deckard’s
client, the bonding company. He also sent another letter directly to the
bonding company, in which the respondent set out his client’s legal
position on indemnification agreements, discussed the apparent conflict of
interest, and demanded that the company terminate Deckard as its attorney.
The respondent did not advise Deckard of the letter and he did not provide
him with a copy.
In recognition of the need to prevent lawyers from taking advantage of
laypersons and to preserve the integrity of the lawyer-client relationship,
Ind. Professional Conduct Rule 4.2 provides that a lawyer, in representing
a client, shall not communicate about the subject of the representation
with a party the lawyer knows to be represented by another lawyer in the
matter, unless the lawyer has the consent of the other lawyer or is
authorized by law to do so. By communicating with the bonding company
about the pending litigation without Deckard’s consent, the respondent
violated the rule.
The respondent and Commission ask us to administer a public
admonishment for the respondent’s misconduct. In this regard, they note
several mitigating factors, including the fact that no harm resulted from
the respondent’s communication and the respondent’s remorse for his acts.
We note also that the parties agree as an aggravating circumstance that the
respondent sought to gain an unfair advantage in the litigation through his
letter to the opposing party. Past violations of Prof.Cond.R. 4.2 or its
predecessor have resulted in public admonishment. See, e.g., Matter of
Syfert, 550 N.E.2d 1306 (Ind. 1990) (communicating with represented
opposing party in legal dispute without other lawyer's knowledge and
consent, and circumventing negotiations with opposing lawyer in order to
pressure opposing party to settle on terms less favorable than those
previously negotiated by party's lawyer); Matter of Mahoney, 437 N.E.2d 49
(Ind. 1982) (intentionally and knowingly disregarding expressed wishes of
another attorney in conversing with that attorney's client on subject
matter which affecting other attorney's client's vital interests violated
DR 1-102(A)(5), DR 7-104(A)(1)). In light of precedent and the parties’
present agreement, we find that a public reprimand is appropriate in this
case.
It is, therefore, ordered, that the respondent, Robert M. Baker, III,
is hereby reprimanded and admonished for this misconduct set forth herein.
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 Federal District Courts in this state, the clerk of the United
States Bankruptcy Court in this state, and the hearing officer appointed to
hear this matter with the last known address of respondent as reflected in
the records of the Clerk.
Costs of this proceeding are assessed against respondent.