FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
DISCIPLINARY COMMISSION
Frederick Shull, Pro Se Donald R. Lundberg, Executive
Secretary
424 Central Avenue Fred Rice, Staff Attorney
Connersville, IN 47331 115 West Washington Street, Suite
1165
Indianapolis, IN 46204
IN THE
SUPREME COURT OF INDIANA
______________________________________________________________
IN THE MATTER OF )
) Case No. 21S00-9906-DI-358
FREDERICK H. SHULL )
__________________________________________________________________
DISCIPLINARY ACTION
__________________________________________________________________
February 5, 2001
Per Curiam
The respondent, Frederick H. Shull, intentionally skipped seven court
proceedings at which he was scheduled to appear to defend his client
against criminal charges. The respondent later testified he purposely
missed the hearings in an attempt to stall the case and gain dismissal of
the charges. The charges, in fact, were dismissed, prompting the
respondent to testify that he should be “complimented” for his delay
tactics. He is wrong. We suspend the respondent from the practice of law
for six months for this professional misconduct.
Having been admitted to the bar of this state in 1974, the respondent
is subject to our disciplinary jurisdiction. The Disciplinary Commission
charged the respondent with violating Rule 1.4 of the Rules of Professional
Conduct for failing to inform his client of the hearings and
for the respondent’s failure to attend those hearings[1]; Prof.Cond.R. 3.2
for breaching his duty to expedite litigation consistent with his client’s
interests[2]; Prof.Cond.R. 3.4(c) for ignoring a specific order of the
court to appear[3]; Prof.Cond.R. 8.1(b) for failure to respond to the
Commission’s request for information about this incident[4]; and
Prof.Cond.R. 8.4 for engaging in conduct prejudicial to the administration
of justice.[5]
A hearing officer was appointed to this case, and, after a hearing,
tendered his report to this Court, determining that the respondent had
committed professional misconduct. Where, as here, the hearing officer’s
report is unchallenged, we accept and adopt the findings contained therein
with the understanding that final determination as to disciplinary
violations and sanction rests with this Court. Matter of Campbell, 702
N.E.2d 692 (Ind. 1998).
Within this review context, we now find that the respondent
represented the client against charges of domestic battery in a court in
Union County. The respondent appeared on behalf of his client at a
telephonic pre-trial conference on June 10, 1997, during which a follow-up
pre-trial conference was set for July 21, 1997. The respondent did not
appear at the second pre-trial conference. He also did not appear at four
subsequently scheduled court hearings between August 25, 1997 and January
16, 1998.
On January 30, 1998, the trial court ordered the respondent to appear
on March 9, 1998. The respondent, again, failed to appear. On March 11,
1998, the court set the matter for trial on May 7, 1998 and ordered that
the trial would proceed “in absentia” if the respondent and his client did
not appear.
The respondent never advised his client of the various court dates or
the consequences of failing to appear. Consequently, the client was not
present at any of the hearings, including his trial scheduled for May 7.
After unsuccessfully attempting to telephone the respondent when the
respondent failed to appear on the trial date, the trial court, in keeping
with its earlier order, proceeded to hear the state’s evidence and took the
matter under advisement. On October 28, 1998, the criminal charges were
dismissed.
After a grievance was filed against the respondent, the Commission
demanded a response from the respondent, as required by Ind.Admission and
Discipline Rule 23, Section 10(a). Although the respondent received that
certified mailing from the Commission, he did not respond. The Commission
sent two further requests for response, which the respondent also ignored.
We find that the respondent violated Prof.Cond.R. 1.4(a) by failing to
keep his client reasonably informed about the status of his case.
Specifically, the respondent failed to inform his client about the court
settings and of the respondent’s failure to appear at those proceedings.
The respondent, by not advising his client about the several court
appearances and the possible consequences for failing to appear, failed to
explain the criminal proceeding to the client to the extent reasonably
necessary to permit the client to make informed decisions regarding the
representation, in violation of Prof.Cond.R. 1.4(b).
The respondent also violated Prof.Cond.R. 3.2, when he intentionally
and repeatedly failed to appear for scheduled court proceedings without
excuse. By refusing to respond to a lawful demand for information from the
Commission, the respondent violated Prof.Cond.R. 8.1(b). We further find
that the respondent, through his pattern of obstreperous actions, engaged
in conduct prejudicial to the administration of justice in violation of
Prof.Cond.R. 8.4(d).[6]
A finding of misconduct necessitates a determination of proper
sanction. In making that determination, we consider the misconduct, the
respondent’s state of mind underlying the misconduct, the duty of this
court to preserve the integrity of the profession, the risk to the public
in allowing the respondent to continue in practice, and any mitigating or
aggravating factors. Matter of Mears, 723 N.E.2d 873 (Ind. 2000). We note
as an aggravating factor that the respondent was privately reprimanded by
this Court in 1997.
We also find as an aggravating circumstance the respondent’s
acknowledged practice of missing court appearances as a means of
manipulating the judicial system to his or his client’s advantage. In his
testimony before the hearing officer, the respondent minimized the
importance of court settings, suggesting that trial courts set hearings in
cases as a means of keeping track of dockets, rather than for purposes of
meaningful activity in those cases. Further evidence of the respondent’s
disdain for orderly judicial process is evident in the following exchange
during the hearing:
Hearing officer: . . . I’d like for you to speak to
sanction briefly
if you would. You had talked about the kernel
of this being attorney neglect, and you’re
saying,
it wasn’t neglectful, I knew what was going
on, and it ultimately turned out all right . .
.
. . .
Respondent: You know, this would have been well done,
that
a boy, you know. That’s what we meant to do,
we did it. Oh, I’m sorry. No, there’s no
sanctions. I should get a compliment on this.
I mean that’s what we set out to do. That was
the
tactic that we did. That’s what worked. . .
Hearing officer: Okay. So, you’re arguing for no sanction?
Respondent: Yes. I think a compliment is in order
for
the results obtained on this case.
Transcript at 22-
24.
Courts set matters for hearing for a variety of purposes, some
ministerial and some substantive. Regardless of the underlying action or
reason for hearing, counsel has a professional obligation to appear as
directed. Intentional absence from a court hearing is open defiance of a
court order. Misconduct of this kind delays the administration of justice,
inconveniences all others involved in the proceeding, wastes judicial
resources, potentially compromises the interests of clients, and subjects
the attorney to possible charges of contempt or, as here, professional
misconduct. See, e.g., Matter of McCord, 722 N.E.2d 820 (Ind. 2000)
(suspension for no fewer than sixty days for lawyer's misunderstanding and
misapplication of rules and regulations governing federal appellate
practice, and repeated failure to comply with procedural requirements and
deadlines). The respondent’s consistent failure to respond to the
Commission in its investigation of his absences from hearings underscores
his disregard for judicial authority and professional obligations.
Given our finding of aggravating circumstances, we conclude that a
suspension of six (6) months without automatic reinstatement is appropriate
under the circumstances. Accordingly, we order that the respondent be
suspended from the practice of law for a period of not fewer than six
months, beginning March 5, 2001, without automatic reinstatement.
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 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.
-----------------------
[1] Prof.Cond.R. 1.4 provides:
a) A lawyer shall keep a client reasonably informed about the status
of a matter
and promptly comply with reasonable requests for information.
b) A lawyer shall explain a matter to the extent reasonably necessary
to permit the
client to make informed decisions regarding the representation.
[2] Prof.Cond.R. 3.2 requires that “(a) lawyer shall make reasonable
efforts to expedite litigation consistent with the interests of the
client.”
[3] Prof.Cond.R. 3.4 provides in relevant part:
A lawyer shall not: . . .
c) knowingly disobey an obligation under the rules of a tribunal
except for an open
refusal based on an assertion that no valid obligation exists . . . .
[4] Prof.Cond.R. 8.1 provides in relevant part:
An applicant for admission to the bar, or a lawyer in connection with
a bar admission
application or in connection with a disciplinary matter, shall not: .
. .
(b) . . . knowingly fail to respond to a lawful demand for information
from
an admissions or disciplinary authority, except that this Rule does
not
require disclosure of information otherwise protected by Rule 1.6.
[5] Prof.Cond.R. 8.4 provides in relevant part:
It is professional misconduct for a lawyer to: . . .
(d) engage in conduct that is prejudicial to the administration of
justice. . . .
[6] The hearing officer made no finding with regard to the charge that the
respondent had violated Prof.Cond.R. 8.4(d).