|FOR THE RESPONDENT |FOR THE INDIANA SUPREME COURT |
| |DISCIPINARY COMMISSION |
| | |
|Kevin P. McGoff |Donald R. Lundberg, Executive |
|8900 Keystone Crossing |Secretary |
|Indianapolis, IN 46240 |Seth T. Pruden, Staff Attorney |
| |115 West Washington Street, Suite 1165|
| |Indianapolis, IN 46204 |
IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) CASE NO. 49S00-9806-DI-376
ALLEN ROBERT THAYER )
DISCIPLINARY ACTION
April 3, 2001
Per Curiam
Attorney Allen Robert Thayer represented the victim of a crime he
himself was charged with committing. For that, along with charging an
unreasonable legal fee in an unrelated matter, we find that Respondent
Thayer should be suspended from the practice of law.
This case is now before us for final resolution upon the hearing
officer’s findings of fact and conclusions of law. Pursuant to
Ind.Admission and Discipline Rule 23(15), the respondent has petitioned us
for review of those findings and conclusions, arguing that the hearing
officer improperly found that the respondent’s advising police that he
represented the alleged crime victim constituted an impermissible conflict
of interest. Because of the respondent’s petition, our review of this
matter is de novo in nature and will involve a review of the entire record
presented. Matter of Warrum, 724 N.E.2d 1097 (Ind. 2000).
Within that review framework, with respect to Count I of the
Commission’s complaint we now find that in 1995, the respondent was a part-
time deputy prosecutor in Tippecanoe County, Indiana. In the late night
hours of August 11, 1995, the respondent’s girlfriend accused him of
battering her. The girlfriend’s statement to a police officer prompted the
respondent’s arrest that night on preliminary charges of domestic battery.
A few hours later, the respondent posted bail. He was later terminated
from his employment as a deputy prosecutor. The criminal charges were
eventually dismissed.
Two days after the respondent’s arrest, the police officer spoke with
the girlfriend. Although she promised to come to the police station the
next day to provide a statement, she failed to do so. On the evening of
August 18, 1995, the police officer went to the residence the respondent
shared with the girlfriend to get a taped statement from her. The
respondent spoke to the officer, advising him that the girlfriend was not
there but that he would have her call the officer. Later that same
evening, the respondent called the police officer and left a message for
the officer to return the call. When the officer returned the call, the
following conversation ensued:
Respondent: Hello.
Officer: Yes, this is Officer [] of the West Lafayette Police
Department. Is Mr. Thayer there?
Respondent: Yes, officer. This is Robert Thayer.
Officer: Yes. I’m returning your call.
Respondent: Yes, thank you. I need to advise you that I’m [the
grirlfriend’s] attorney
along with [another attorney]. Any statements
that you’d like to take
from her would be, be arranged in his office.
Okay sir?
Officer: Uh, so she won’t speak to me at all, correct?
Respondent: That’s correct sir.
Officer: Okay, do you know how to spell [the other
attorney’s] last name?
Respondent: Certainly. []. His phone number, [].
Officer: Thank you sir.
Respondent: Thank you.
The Commission charged the respondent with violating Ind.Professional
Conduct Rule 1.7(b), which provides in relevant part:
A lawyer shall not represent a client if the representation of that
client may be materially limited by the lawyer’s responsibilities to
another client or to a third person, or by the lawyer’s own interests,
unless:
(1) the lawyer reasonably believes the representation will not be
adversely affected; and
(2) the client consents after consultation.
The respondent argues that there can be no finding of an impermissible
conflict of interest because he did not represent the girlfriend with
regard to the battery incident. The respondent further contends that he did
not intend for the police officer to interpret his statement as meaning
that the respondent represented the girlfriend in the battery case, but
only that he represented her on some other matters.
At hearing, it was established that the respondent did represent his
girlfriend on several other legal matters, including an eviction, a
foreclosure, some child custody issues, a bankruptcy, a workers
compensation claim, an AFDC matter, and a social security matter. The
representations began after the respondent and the girlfriend established a
romantic relationship.
The record also reveals that soon after the respondent’s arrest, the
girlfriend contacted the other lawyer (the one mentioned in the
respondent’s telephone conversation with the police officer) to assist her
in matters regarding the respondent’s arrest and preliminary charges, given
that the incident had generated a fair amount of local media attention.
The threshold question presented is whether the respondent
represented the girlfriend with regard to the battery incident such as to
invoke the conflict of interest provision contained in Ind.Professional
Conduct Rule 1.7(b). As the respondent points out in his brief, in the
absence of an express employment agreement between attorney and client,
this Court has held that attorney-client relationships may nonetheless be
implied by the conduct of the parties. Matter of Anonymous, 655 N.E.2d 67,
70 (Ind. 1995) (other citations omitted). Such a relationship exists only
after both attorney and client have consented to its formation. Id. For
example, an attorney-client relationship may be implied where a person
seeks advice or assistance from an attorney where the advice sought
pertains to matters within the attorney’s professional competence, and
where the attorney gives the desired advice or assistance. Id. (other
citations omitted).
The record in this case reveals that the girlfriend told the
respondent and police that she did not want to be questioned directly by
the police.[1] In response, the respondent contacted the police,
identified himself as the girlfriend’s lawyer, and advised them not to
question the girlfriend directly. We find that sequence of events
sufficient to establish that the girlfriend sought the assistance of the
respondent in matters within the respondent’s professional competency, and
that the respondent in turn provided to her that assistance even though the
respondent, due to the obvious conflict, was precluded from providing that
assistance. The content of the respondent’s conversation with the police
officer reflects that attorney-client relationship.
The respondent’s argument that, in his conversation with the police
officer, he meant only to assert that he was the girlfriend’s lawyer on
other matters is disingenuous. His statement that he was her lawyer had
relevance within the context of that phone conversation only if it was
intended to mean that he was her lawyer with regard to the battery
incident, insofar as he was seeking to stanch police questioning of her
about it.
We find further that the respondent engaged in an impermissible
conflict of interest. Clearly, since the preliminary criminal charges
were leveled against the respondent himself, he was precluded from
representing the alleged victim due to the overwhelming risk that the
respondent could manipulate the investigation in his favor, especially
given the fact that he was serving as a deputy prosecutor at that time.[2]
Accordingly, we find that he violated Prof.Cond.R. 1.7(b).
Under Count II, we find that the respondent agreed to prosecute a
personal injury claim on behalf of a client pursuant to a written
contingency fee agreement providing for a fee of 1/3 of the recovery in the
event no suit was filed, and 40% if a suit was filed. Ultimately, the
respondent filed suit, after which the defendant’s insurer offered to
settle for $11,000. The client advised the respondent that the settlement
offer was satisfactory. On the day of the settlement, the respondent
presented the client with a new written fee agreement which provided that
the respondent would receive 50% of the settlement, instead of the 40% he
initially agreed to. He told the client that the additional 10% was to
prevent the medical provider or others from attaching the proceeds. The
client signed the new agreement in order to obtain her portion of the
settlement proceeds, even though the respondent did not provide the client
the opportunity to seek the advice of independent counsel regarding the
revision of the fee agreement. Once settlement was obtained, the
respondent retained 50% as his fee.
Indiana Professional Conduct Rule 1.8(a) provides, in relevant part,
that a lawyer shall not enter into a business transaction with a client
unless (1) the transaction and terms on which the lawyer acquires an
interest are fair and reasonable to the client and are fully disclosed and
transmitted in writing to the client in a manner which can be reasonably
understood by the client; (2) the client is given a reasonable opportunity
to seek the advice of independent counsel in the transaction; and (3) the
client consents in writing thereto. In his brief, the respondent admits
that his ex post facto act of raising his contingent fee after settlement
negotiations concluded was a business transaction with the client in which
the respondent had a personal pecuniary interest. The manner and timing by
which the respondent exerted the change upon his client were not fair and
reasonable. After settlement negotiations had concluded, the respondent
presented his client with a new agreement calling for a 10% hike in the
contingency fee. The respondent advised his client that the increased fee
was to protect the money from attachment, although the respondent failed to
explain how his own increased fee would provide that protection. The
client testified that she felt she had no choice but to accept the new
agreement. The respondent did not advise the client to consult independent
counsel nor did he obtain her express written consent to his self-serving
amendment to the contingency fee agreement. Accordingly, we find that
the respondent violated Prof.Cond.R. 1.8(a). [3]
Professional Conduct Rule 1.5(a) provides that a lawyer’s fee shall
be reasonable.[4] After initially negotiating a 40% contingency fee with
his client, the respondent later (after the amount of the settlement was
agreed) increased that fee by 10% of the overall recovery without any new
consideration. We find that his efforts to extract a greater fee under
these circumstances amounted to the charging of an unreasonable fee in
violation of Prof.Cond.R. 1.5(a).
Having found misconduct, we now turn to the issue of proper
discipline. In that regard, the hearing officer found that the
respondent’s motivation for his actions under Count I was self-
preservation. She found that his motivation underlying his actions in
Count II was greed. Further aggravating his misconduct under Count II was
the fact that even though it has been several years since the client’s case
settled, the respondent has never refunded any portion of the fee to the
client. The hearing officer concluded that a suspension from the practice
of law without automatic reinstatement was appropriate.
Because the respondent’s actions overall demonstrate his willingness
to subordinate his clients’ interests to his own, we agree with the hearing
officer’s recommended sanction. Accordingly, we conclude that the
respondent, Allen Robert Thayer, should be suspended from the practice of
law for a period of at least thirty (30) days, beginning May 7, 2001, after
which he shall be eligible to petition this Court for reinstatement to the
bar of this state.
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 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] In this regard, portions of the respondent’s testimony at trial of this
matter are illustrative:
Respondent’s counsel: . . . was there any further discussion between you
and [the girlfriend], if you remember, about whether she
wanted to communicate with police officers or prosecutors,
for that matter?
Respondent: She told me on numerous occasions that she felt the police were
harassing her, she didn’t like [the] special prosecutor,
that she was tired of being bothered and wanted to be left
alone. . .
. . .
[she] expressly told me she wanted no contact with the
police or special prosecutor. . ., so my intent was to
relay that.
Tr. pp. 87-88, 112.
Portions of the girlfriend’s testimony indicate that she sought his legal
advice:
Girlfriend: . . . I hadn’t been to court like that before. I didn’t
know what was going on with - - how to protect myself and
how to - - I don’t know.
Commission: Protect yourself from what?
Girlfriend: Just from all the legal stuff and officers calling me. I
just felt I needed an attorney. I don’t understand a lot
of things.
Commission: At the time you didn’t understand these things, your
housemate was Robert Thayer; is that correct?
Girlfriend: Yes.
Commission: You didn’t discuss these things with him?
Girlfriend: Well, yes, we discussed things, but I didn’t still, like,
comprehend, understanding everything. I don’t.
Commission: Was he not able to explain it to you?
Girlfriend: No, he was able to explain things to me, but for me to
really understand it, I didn’t.
Tr. pp. 36-37.
[2] We note that under Prof.Cond.R. 1.7(b), even where a conflict exists,
a lawyer may nonetheless provide representation as long as the lawyer
reasonably believes the representation will not be adversely affected and
the client consents after consultation. However, it is hard to imagine a
circumstance where any lawyer could reasonably believe there would be no
adverse effect attendant to the lawyer’s representation of the victim of an
alleged crime the lawyer is charged with committing.
[3] The present situation differs from typical contingent fee negotiations
between lawyers and their clients because here the contingency of the fee
had expired with conclusion of the settlement negotiations—the insurer had
offered to settle for $11,000 and the client had advised the respondent to
accept the offer. In effect, the respondent attempted to increase his
contingency fee arrangement with an unsophisticated client after the
contingency no longer existed. These unique circumstances activated the
need for the protections required for lawyer-client business transactions
provided in Prof.Cond.R. 1.8(a). By this holding today, however, we do not
mean to require that all modifications to contingency fee agreements under
any circumstances be subject to the client protections contained in
Prof.Cond.R. 1.8(a).
[4] Professional Conduct Rule. 1.5(a) provides:
(a) A lawyer's fee shall be reasonable. The factors to be considered
in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal service
properly;
(2) the likelihood, if apparent to the client, that the acceptance of
the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal
services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the
circumstances;
(6) the nature and length of the professional relationship with the
client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and
(8) whether the fee is fixed or contingent.