IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) Case No. 49S00-9910-DI-607
ANONYMOUS )
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DISCIPLINARY ACTION
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March 14, 2000
Per Curiam
After cosigning with his law partner a pleading filed on behalf of a
client, the respondent failed to see to it that the client’s case was
prosecuted after his law partner, who had almost exclusively handled the
case up to that point, left the firm. For that, we find that the
respondent engaged in attorney misconduct.
This lawyer disciplinary case comes before this Court upon a Statement
of Circumstances and Conditional Agreement for Discipline in contemplated
resolution of disciplinary charges pending against the respondent. We
approve the agreement, which calls for a private reprimand. For the
instruction of the bar, we are issuing this account of the facts and
circumstances of this case while preserving the confidential nature of the
discipline.
The parties agree that, at relevant times, the respondent was a
partner in a law firm. In January 1996, a client entered into a contingent
fee agreement with the law firm to pursue an employment discrimination suit
against the state of Indiana. One of the respondent’s partners signed the
agreement on behalf of the firm. On February 1, 1996, the respondent and
that partner signed a complaint and summonses, which were then filed in
federal court. At the same time, the respondent and his partner propounded
discovery requests on the state. After these initial filings, the
respondent had no further direct involvement with the case and, in fact,
never even met the client or spoke directly to her. Once the case was
filed, all notices of service on filings from either the state or the
federal court bore both the respondent and the partner’s names and were
sent to the firm. Once received, they were routed to the partner’s
attention.
On October 7, 1996, the presiding federal judge issued a show cause
order to the respondent, directing him to show cause why the case should
not be dismissed based on the firm’s failure to comply with an agreed case
management plan. Hearing nothing from the respondent or his firm, the
federal court dismissed the case on October 30, 1996, and an order of
dismissal was served on the firm thereafter.
The partner left the firm in April of 1997, but the case file remained
at the firm. At no time during the representation or after the case’s
dismissal did the respondent notify the client of the status of her case
until after the client contacted the firm in December of 1998. When the
client did contact the firm, she spoke with a member of the staff, who, in
turn, discussed the matter with the respondent. The respondent then wrote
to the client, advising her of the dismissal of her case. Before that, the
respondent had taken no action for the client’s benefit since the filing of
the complaint and summonses, despite his appearance in the case.
The respondent and the Commission agree that the respondent violated
Ind.Professional Conduct Rule 5.1(c)(2), which provides:
A lawyer shall be responsible for another lawyer’s violation of the
Rules of Professional Conduct if the lawyer is a partner in a law firm
in which the other lawyer practices, or has direct supervisory
authority over the other lawyer, and knows of the conduct at a time
when its consequences can be avoided or mitigated but fails to take
reasonable remedial action.
We find that the essence of the respondent’s misconduct in this case
was his failure to ensure that the client’s case was adequately prosecuted
despite his having appeared in the case by signing the pleadings and
thereby holding himself out as one representing the client in her case.
Despite his signature, his actual involvement in the case was so minimal
that, after the partner left the firm, the respondent was unaware of the
case’s status until some 18 months later, when the client herself took
steps to learn of the case’s status. Only then did the respondent finally
learn that the case had been dismissed some two years before. His failure
to take reasonable remedial action arose not so much due to any wrongful
lack of oversight of his partner and thus imputed responsibility for his
partner’s actions, but instead because he simply knew nothing of the status
of the case. Because he lacked that knowledge, he was unable to avoid (or
mitigate the consequences of) the federal court’s dismissal. It was the
respondent’s appearance in the case by his signature on the pleadings that
activated his duty to ensure that the client’s case was appropriately
handled, and his failure to see to it that the case was sufficiently
prosecuted constitutes his misconduct.[1]
When a lawyer who is a partner in a law firm jointly appears in a case
or other legal matter with another partner of the firm, each is responsible
for the prosecution of the case or legal matter and should take steps to
ensure that the matter does not languish in the hands of the other.
Although a lawyer who directs, knows of, or ratifies the misconduct of a
lawyer with whom he associates may be held responsible for that
misconduct,[2] no such direction, knowledge or ratification is demonstrated
by the agreed facts of this case.
For his misconduct, we find that the respondent should be privately
reprimanded. An order and letter of private reprimand shall be issued
along with this opinion.
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, and the clerk of the United
States Bankruptcy Court 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 respondent.
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[1]Although not charged as such, we see the respondent’s conduct a
violation of Prof.Cond.R. 1.1, which provides that a lawyer shall provide
competent representation to a client, Prof.Cond.R. 1.2, which provides that
a lawyer shall abide by a client’s decisions concerning the objectives of
representation, Prof.Cond.R. 1.3, which provides that a lawyer shall act
with reasonable diligence and promptness while representing a client, or
Prof.Cond.R. 1.4, which provides that a lawyer shall keep a client
reasonably informed about the status of a matter, promptly comply with
reasonable requests for information, and explain matters to the extent
reasonably necessary to permit the client to make informed decisions
regarding the representation. However, since violations of these
provisions have not been charged, we are precluded from finding that they
occurred.
[2] See generally Prof.Cond.R. 5.1(responsibilities of a partner or
supervisory lawyer); Prof.Cond.R. 5.2 (responsibilities of a subordinate
lawyer).