|FOR THE RESPONDENT |FOR THE INDIANA SUPREME COURT |
| |DISCIPINARY COMMISSION |
| | |
|Kevin P. McGoff |Donald R. Lundberg, Executive |
|Attorney at Law |Secretary |
|8900 Keystone Crossing, Suite 400 |D. J. Mote, Staff Attorney |
|Indianapolis, IN 46240-2129 |115 West Washington Street, Suite |
| |1060 |
| |Indianapolis, IN 46204 |
IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) CASE NO. 16S00-9812-DI-778
KENNETH R. BASS )
DISCIPLINARY ACTION
April 24, 2000
Per Curiam
The Indiana Supreme Court Disciplinary Commission alleged that lawyer
Kenneth R. Bass charged an unreasonable legal fee when he accepted a
private legal fee from a client he represented as public defender and for
which he was paid county funds for representing. He is also charged with
failing to disclose to the trial court in which the client’s case was
pending the private payment arrangement with his client.
This case is now before us for approval of a Statement of
Circumstances and Conditional Agreement for Discipline entered into by the
parties in resolution of this matter pursuant to Ind. Admission and
Discipline Rule 23, Section 11(c). Our jurisdiction here is based on the
respondent’s admission to the bar of this state on October 13, 1976. We
find the undisputed facts to be as follow.
During relevant times, the respondent was employed by the Decatur
Circuit Court as a public defender. He was compensated $1,083.33 per month
for his services. On March 3, 1997, the court appointed the respondent to
represent a defendant charged with attempted possession of a controlled
substance by altered prescription, a class D felony. The respondent
appeared with his client on August 15, 1997, and entered a plea of guilty.
The court set the matter for sentencing on October 6, 1997.
Some time prior to sentencing, the client informed the respondent
that she wished to withdraw her guilty plea. The respondent agreed with
the client to accept payment from her directly and to represent her as
private counsel in order to move the court for withdrawal of the plea. The
respondent further agreed with his client that if the motion to withdraw
the plea was denied, he would use the money paid by the client toward his
legal fee to pursue a sentence modification on her behalf. Immediately
prior to sentencing on October 6, 1997, the respondent met with the client
outside the courtroom and accepted a cash payment from her as compensation
for representing her as private counsel.[1]
At the hearing on October 6, 1997, the respondent orally moved to
withdraw the client’s plea of guilty. He then stated:
Now I want to also advise the Court to keep myself clean here,
ethically, I was contacted by [the client] . . .[a]nd she wanted to
retain me privately in this matter. And I told her I didn’t, I’m not
sure exactly what I said, but I was court appointed and pretty much we
had concluded matters, this was just a continuation of the sentencing
hearing, nothing more. She also at that time, you can confirm this,
that she wanted to withdraw her plea. And I said I did not know
whether the Court would entertain that or not. Now I’m not trying to
muffle things up here, but she did request that I do that . . .so, so,
you know, I just want to make sure the Court understands where I stand
in this matter . . .
The respondent never advised the court that he had accepted payment from
the client to represent her as private counsel. On October 6, 1997, the
court granted the motion to withdraw the plea.
On January 26, 1998, the state of Indiana filed an amended charging
information, which matched the facts admitted by the client. Subsequently,
the client, with the respondent as her counsel, again entered a plea of
guilty. At the sentencing hearing on February 16, 1998, after entering
judgment of conviction, the court ordered the client to reimburse the
county $250 for legal expenses in the case:
COURT: . . .She’ll be on supervised probation after the executed
part of the sentence, for the balance of the sentence. Ordered to pay
hundred dollar initial probation fee plus fifteen dollars a month,
court costs, reimburse the county two hundred and fifty dollars for
legal expenses in this case.
REPONDENT: Your Honor, do you need to order, you’ll have to help me
here, a hundred dollars for that public defender’s supplemental . . .
COURT: No.
RESPONDENT: That’s on charges. . .
COURT: That’s on ’98 cases, but she will have to reimburse the county
two hundred and fifty.
RESPONDENT: Two fifty. Thank you Judge.
Despite the discussion between the respondent and the judge about the
requirement that the client reimburse the county for legal expenses, the
respondent again failed to inform the court that he had accepted payment
from the client to represent her as private counsel.
After the client completed the executed portion of her sentence, her
probation officer asked if she would be able to pay the court-ordered $250
reimbursement for public defender services. The client questioned why she
was required to reimburse the county when she had already paid the
respondent for his services. The probation officer immediately informed
the court of her statements. The judge met with the client and
interrogated her under oath to confirm that she had paid the respondent to
represent her as private counsel. On May 6, 1998, the judge confronted the
respondent with the allegations made by the client, and for the first time,
the respondent acknowledged having received money from the client to act as
her private counsel.
During the Disciplinary Commission’s investigation of those events,
the respondent falsely stated that at the February 16, 1998, sentencing
hearing he did not hear the judge order the client to repay the county for
the respondent’s pauper counsel fees.
Indiana Professional Conduct Rule 1.5 requires that lawyers’ fees be
reasonable.[2] The respondent accepted a fee for private representation
from his client for matters that he was compensated for by the county. The
client eventually was ordered to recompense the county for the respondent’s
public defender services. By charging the client a legal fee for private
representation while at the same time being paid by Decatur County to serve
as the client’s public defender, the respondent exacted from her an
unreasonable fee in violation of Ind.Professional Conduct Rule 1.5(a).
Professional Conduct Rule 3.3(a)(1)[3] provides that it is
professional misconduct for a lawyer to make a false statement of material
fact to a tribunal. By twice failing to inform the trial court that he had
accepted a cash payment from the client for private representation, the
respondent violated the rule. Only when confronted by the judge with the
client’s revelation to her probation officer of payment to the respondent
did he concede to the court his private payment arrangement with the
client. The respondent’s deception of the court about the matter also
violated Prof.Cond.R. 8.4(c),[4] which proscribes conduct involving fraud,
deceit, dishonesty, and misrepresentation. His failure to disclose his
arrangement his with client even while the court imposed, as part of the
judgment of conviction against the client, the requirement that she
reimburse the county for county legal expenses violated Prof.Cond.R.
8.4(d),[5] which prohibits conduct that is prejudicial to the
administration of justice.
Professional Conduct Rule 8.1(a) provides that a lawyer, in
connection with a disciplinary matter, shall not knowingly make a false
statement of material fact.[6] In the course of the Commission’s
investigation of this matter, the respondent falsely stated that he did not
hear the judge order the client to repay the county for the respondent’s
pauper counsel fees. However, at the client’s sentencing hearing, the
respondent discussed with the judge, on the record, the exact amount the
client was ordered to repay to the county, and even repeated the amount
ordered by the judge. We therefore find that he knowingly made a false
statement of material fact by stating that he did not hear the judge’s
order that the client repay the county.
Having found misconduct, we must now assess the adequacy of the agreed
sanction, that being suspension from the practice of law for sixty days.
Among the factors this Court examines when considering an appropriate
disciplinary sanction are mitigating and aggravating circumstances. Matter
of Martenet, 674 N.E.2d 549 (Ind. 1996).
In mitigation, the respondent and the Commission cite the fact that
the respondent is the divorced father of two sons, one of whom is in his
custody and the second a college sophomore who is dependent upon the
respondent to help pay the expenses of his college education. The parties
also note that the respondent has served as a public defender for twelve
years and maintained his position as a public defender throughout these
proceedings. Finally, the parties state that the respondent filed his
response to the Commission’s Request for Investigation without benefit of
counsel and before reviewing the transcript of the February 16, 1998,
sentencing hearing. This last assertion is of little mitigating value,
however, given that the record shows the respondent was well aware that the
$250 county reimbursement had been ordered.
In aggravation, we note that the respondent has been disciplined by
this Court before, receiving in 1997 a private reprimand for unrelated
misconduct.
The essence of the respondent’s present misconduct is his knowing
exploitation of his own client for personal gain, then his purposeful
deception of both the trial court and the Commission to conceal his
actions. His acts implicate his capacity for honesty and trustworthiness
while serving as an officer of the courts. Because of that, we conclude
that a period of suspension is appropriate.
It is, therefore, ordered that the respondent, Kenneth R. Bass, is
hereby suspended from the practice of law for a period of sixty (60) days,
beginning June 2, 2000. At the conclusion of that period, the respondent
shall be automatically reinstated to the practice of law.
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] The Commission and the respondent dispute the amount of the private
fee paid by the client to the respondent. The respondent asserts that the
amount was $500; the Commission, based on the sworn testimony of the
client, contends that the fee was $1,000.
[2] 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.
[3] Professional Conduct Rule 3.3(a)(1) provides:
A lawyer shall not knowingly make a false statement of material fact or law
to a tribunal; …
[4] Professional Conduct Rule 8.4(c) provides:
It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation;
[5] Professional Conduct Rule 8.4(d) provides:
It is professional misconduct for a lawyer to engage in conduct that is
prejudicial to the administration of justice.
[6] 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:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension
known by the person to have arisen in the matter, or 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.
In the Matter of Kenneth R. Bass
Combined Opinion