|FOR THE RESPONDENT |FOR THE INDIANA SUPREME COURT |
| |DISCIPINARY COMMISSION |
| | |
|Pro se. |Donald R. Lundberg, Executive |
| |Secretary |
| |Charles M. Kidd, Staff Attorney |
| |115 West Washington Street, Suite |
| |1060 |
| |Indianapolis, IN 46204 |
IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) Case No. 26S00-9809-DI-514
SUSAN J. McCARTY )
DISCIPLINARY ACTION
May 25, 2000
Per Curiam
Susan J. McCarty, an attorney admitted to practice law in this state
in 1975, will be suspended from the practice of law for neglecting the
legal affairs of four clients, failing appropriately to handle funds she
held on their behalf, and failing to respond to inquiries of the
Disciplinary Commission regarding those acts.
This attorney disciplinary case comes before this Court upon the duly-
appointed hearing officer’s findings of fact and conclusions of law,
prepared following an evidentiary hearing upon the Commission’s First
Amended Verified Complaint for Disciplinary Action filed against the
respondent on May 26, 1999. The hearing officer found misconduct as
charged. Neither the respondent nor the Commission has petitioned this
Court for review of the hearing officer’s report, and we therefore accept
and adopt the findings contained therein, but reserve final judgment as to
misconduct and sanction. Matter of Kristoff, 611 N.E.2d 116 (Ind. 1993).
Based upon the hearing officer’s report, we now find the facts to be
as follow:
Count I
On September 24, 1996, a client retained the respondent to seek a
legal separation from the client’s husband, paying the respondent $300 to
represent her. Of those funds, $100 was intended to be used for the filing
fee and other $200 was to go toward the respondent’s attorney fee. The
respondent did not deposit any portion of the money provided by the client
into a client trust or separate dedicated account. Between August 1996 and
April 1999, the respondent did not even maintain such an account.
The client contacted the respondent on more than one occasion to
check on the status of her legal separation. The respondent offered
various excuses, including that the papers had been prepared but destroyed
by the typist’s child. In fact, the documents were never prepared. On
October 2, 1996, the client terminated the attorney-client relationship and
asked for a refund of the $300 she had paid. The respondent told the
client she did not have the money. The client’s successor attorney also
requested refund of the $300, but was likewise advised by respondent that
she did not have the money.
On October 23, 1996, the client filed a grievance against the
respondent with the Disciplinary Commission. Though required to respond
by Ind.Admission and Discipline Rule 23(10)(a)(2), the respondent failed to
do so. In December of 1996, respondent repaid to the client $200 of the
$300 paid.
Indiana Professional Conduct Rule 1.3 requires lawyers to exercise
reasonable diligence and promptness when representing clients. By failing
to take any meaningful action on behalf of her clients, the respondent
violated the rule. Professional Conduct Rule 1.16(d) provides, in relevant
part, that upon termination of representation, a lawyer shall take steps to
the extent reasonably practicable to protect a client’s interests,
including surrendering papers and property to which the client is entitled
and refunding any advance payment of fee that has not been earned. By
failing promptly to refund the client’s retainer or filing fee, the
respondent violated the rule. Professional Conduct Rule 1.15(a) requires
that lawyers hold the property of clients separate from their own. Client
funds in a lawyer’s possession in connection with a proceeding are to be
kept in a separate account. The respondent failed to maintain her client
funds is an appropriate account as required and thus violated the rule.
The hearing officer found that the respondent never prepared the
pleadings for the legal separation sought by the client. The record in
this case contains no indication that such an action was ever filed, yet
the respondent never returned to the client the $100 paid in advance for
the filing fee and, in fact, never even placed the funds in a separate
account. When the client requested return of the funds, the respondent
claimed she no longer had them. Professional Conduct Rule 8.4(b) provides
that a lawyer shall not engage in a criminal act which reflects adversely
on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other
respects. We find that the respondent’s exercise of authorized control
over the client’s funds violated Prof.Cond.R. 8.4(b).
Finally, by falsely informing the client that the pleading for the
separation had been prepared but destroyed by a child, the respondent
engaged in conduct involving dishonesty, fraud, deceit, and
misrepresentation in violation of Prof.Cond.R. 8.4(c). By failing to
respond to the Commission’s request for response to the client’s grievance,
the respondent violated Prof.Cond.R. 8.1(b), which makes it professional
misconduct for a lawyer knowingly to fail to respond to a lawful demand for
information from a disciplinary authority.
Count II
In September of 1996, a client who had been involved in an automobile
accident and who was dissatisfied with the $462 insurance settlement she
had received for it retained the respondent to seek a better settlement and
to prevent the insurer from assigning fault for the accident to the client.
The client did not pay respondent any advance fees, but did forward the
uncashed $462 insurance check to her. The respondent advised the client
that she was unlikely to receive a better settlement from the insurer. As
a result, in early 1997, the client terminated the attorney-client
relationship and requested that the respondent return her papers. The
respondent did not immediately return them, prompting the client’s
successor attorney to contact the respondent by both telephone and letter
regarding the return of the client’s file. Additionally, the client also
continued to demand that the respondent return her papers.
Having no success in recovering her file, the client filed a
grievance against the respondent on April 21, 1997. On January 8, 1998,
the respondent replied to the client’s grievance and at that time provided
the Commission with the client’s papers and the insurance check left with
the respondent in 1996.
By failing to take any action on behalf of her client and by failing
promptly to return to the client papers she was entitled to recover at the
termination of representation, the respondent violated Prof.Cond.R. 1.3 and
1.16(d). Professional Conduct Rule 1.2(a) provides that a lawyer shall
abide by a client’s decisions concerning the representation. By failing to
take any action at all in the case, the respondent violated Prof.Cond.R.
1.2(a).
Count III
A client hired the respondent to file dissolution of marriage action,
orally agreeing to pay the respondent $525, including a $100 filing fee.
At the outset, the client paid to the respondent $300 toward the fee, with
the balance subsequently paid by December 14, 1997. The respondent did not
deposit any portion of the money into a trust or dedicated account. During
that time respondent did not maintain a trust or dedicated account.
Between December 1997 and April 1998, the client contacted the
respondent repeatedly seeking information about the status of her
dissolution action. In February 1998, the client told the respondent to
file the dissolution action or refund her money. The respondent failed to
file a dissolution action on behalf of the client at any time, but did
later refund $200 to the client.
On March 30, 1998, the client sued the respondent in the Gibson
Superior Court seeking a judgment for the balance of the money she had paid
to respondent. The respondent did not dispute the client’s claim, and the
court entered a judgment for $325 against the respondent, the terms of
which required the respondent to pay the client $20 per month until the
judgment was satisfied. The respondent later failed to make regular
payments. On May 20, 1998, the client filed a motion for supplemental
proceedings, which ultimately resulted in the respondent’s monthly required
payment being reduced to $10 per month. On May 29, 1998, the client filed
a grievance, to which the respondent failed to respond. The respondent
paid the client another $25 on August 3, 1998.
By failing to take any action in the case, the respondent violated
Prof.Cond.R. 1.2(a) and 1.3. By failing to refund the advance-paid filing
fee to the client at the termination of representation, the respondent
violated Prof.Cond.R. 1.16(d). By failing to keep the client’s funds in a
separate account, the respondent violated Prof.Cond.R. 1.15(a). By
failing to respond to the Commission’s request for information, the
respondent violated Prof.Cond.R. 8.1(b).
Count IV
The respondent met with prospective clients on July 29, 1998,
regarding obtaining custody of their grandson. The clients informed the
respondent that their grandson was visiting them at their home in
Evansville, Indiana, and did not want to return to live with his father in
Texas. They also told the respondent that time was of the essence due to
school enrollment considerations. The respondent accepted a retainer of
$300 from the clients.
The clients attempted to contact the respondent almost daily. On
August 8, 1998, the clients discharged respondent and demanded a refund of
the advance payment. Between her hiring on July 29, 1998 and her discharge
on August 8, 1998, respondent did nothing to advance the clients’
contemplated legal action.
When respondent failed to comply with the clients’ demand for refund,
the clients sued the respondent in the small claims division of the
Vanderburgh Superior Court and obtained a default judgment against her.
They also filed a grievance against the respondent, to which the respondent
never responded. After the Commission filed its First Amended Verified
Complaint for Disciplinary Action on January 4, 1999, the respondent fully
refunded the clients’ retainer money.
The respondent’s failure to refund the money the client paid in
advance toward the respondent’s legal fee violated Prof.Cond.R. 1.16(d).
By failing to respond to the Commission’s demand for a response, the
respondent violated Prof.Cond.R. 8.1(b).
Having found misconduct in each of the four counts, we now turn to
the issue of proper sanction. In this analysis, among the factors we
examine are those that tend to mitigate the severity of the respondent’s
actions. The respondent has supplied evidence that various health concerns
at times hamper her ability to provide legal services, but offers nothing
to explain or extenuate each specific instance of misconduct. The
Commission has emphasized the fact that the respondent engaged in several
instances of misconduct, and argues that her pattern of neglect aggravates
the severity of her acts. Whether caused by health or other problems, the
fact remains that in several instances the respondent took no action at all
for clients with pressing legal needs. Two times her inaction and neglect
was so complete that clients were forced to resort to formal legal action
to recover unearned fees and filing costs. That, coupled with the
respondent’s client fund mismanagement and complete disregard for the
Commission during its investigation of these matters, casts doubt on her
ability and/or willingness to discharge the duties and obligations required
of lawyers. We see permitting her to continue in practice as a danger to
the public and the profession, and, accordingly, we find that a period of
suspension with the requirement the respondent petition this Court for
reinstatement is appropriate. Such a sanction under the facts of this
case is commensurate with that imposed in similar cases. See, e.g.,
Matter of Ragland, 697 N.E.2d 44 (Ind. 1998) (five counts of neglect
resulted in a six-month suspension without automatic reinstatement);
Matter of Barnes, 691 N.E.2d 1225 (Ind. 1998) (six month suspension for
three counts of client neglect and failure to protect former clients’
interest).
It is, therefore, ordered that the respondent, Susan J. McCarty, be
suspended from the practice of law for a period of not fewer than six (6)
months, beginning July 3, 2000, at the conclusion of which she shall be
eligible for reinstatement to the bar of this state, provided she can
satisfy the requirements of Ind.Admission and Discipline Rule 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.