FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
DISCIPLINARY COMMISSION
Forrest Bowman, Jr. Donald R. Lundberg, Executive Secretary
11 S. Meridian Street Seth T. Pruden, Staff Attorney
Indianapolis, IN 46204 115 West Washington St., Ste. 1060
Indianapolis, Indiana 46204
___________________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) Case No. 82S00-9811-DI-723
MARY JANE HUMPHREY )
DISCIPLINARY ACTION
March 10, 2000
Per Curiam
After failing to perfect service of a complaint she filed on behalf of
a client (an error which ultimately proved fatal to the cause of action),
attorney Mary Jane Humphrey attempted improperly to resurrect the matter by
refiling it on two occasions, all the while failing to advise her client of
the reason for the case’s demise or to provide her client with other
meaningful information about the representation. For that, along with
neglect of two other legal matters, we find today that Humphrey, the
respondent in this case, should be suspended from the practice of law.
This matter comes before us on the respondent and the Disciplinary
Commission’s Statement of Circumstances and Conditional Agreement for
Discipline, tendered in contemplated resolution of this case pursuant to
Ind.Admission and Discipline Rule 23(11.1)(c). Our jurisdiction in this
case is derived from the respondent’s admission to the Bar of this State on
October 10, 1980.
Under Count I of the verified complaint for disciplinary action giving
rise to this action, the parties agree that a client retained respondent in
July 1992 to pursue a sexual harassment claim against the client’s
employer. The respondent filed a claim against the employer in December
1993, which the employer countered with a motion to dismiss, asserting
insufficient service of process of the claim. The respondent subsequently
filed three separate motions requesting extensions of time to respond
before filing a response to the motion to dismiss on August 2, 1994.
On January 30, 1995, after expiration of the statute of limitations,
the court granted the defendant’s motion to dismiss, finding that the
respondent had failed to comply with Fed.R.Civ.P. 4(m), which generally
requires a showing of proof of service within 120 days of filing a claim.
The respondent subsequently refiled the same or a substantially similar
complaint in the same court. After receiving a written demand from the
employer to dismiss the second complaint, the respondent falsely informed
the employer that the client had authorized dismissal of the complaint and
filed the appropriate documents with the court, which resulted in the
second case’s dismissal on April 26, 1995.
Throughout the spring and summer of 1995, the client attempted to
contact respondent about the status of her case. Her communications with
the client about the status of her case at that time were of a general
nature and such that the details of the case were either not clearly
explained or were not understood by the client.[1] The respondent told her
that the first case had been dismissed, but failed to inform the client of
the underlying reason of her failure to perfect service.
In October 1995, the respondent again tried to revive her client’s
claim by filing a third suit, again essentially identical to the first two,
in Vanderburgh Circuit Court. One crucial difference was that the third
complaint added a count of fraud against the employer, in an apparent
effort to revive the case beyond the original statute of limitations.
Based on diversity considerations, the case was later removed to federal
district court, where it was met with a motion to dismiss on the same
grounds as asserted against the first two claims. Over the next two months,
the respondent filed five motions for extension of time to respond to the
motion to dismiss before finally responding on April 12, 1996. The court
dismissed the third complaint on May 22, 1996.
By failing to defend in a timely fashion the motion to dismiss the
first complaint she filed on behalf of her client, the respondent violated
Ind.Professional Conduct Rule 1.3, which requires a lawyer to act with
reasonable diligence and promptness while representing a client.[2] By
failing to keep her client informed about the status of her case and by
failing to advise the client of dismissals of her claims, the respondent
violated Prof.Cond.R. 1.4(a)[3] and (b), which require lawyers to keep
their clients reasonably informed about pending legal matters.[4] The
respondent violated Prof.Cond.R. 1.7(b)[5] by continuing to represent the
client after the first complaint was dismissed for failure to perfect
service: the respondent’s failure to do so resulted in a loss of an avenue
of legal redress for her client, yet the respondent failed to inform her
client of the potential grounds for a legal malpractice claim and failed to
advise the client to seek the advice of independent counsel. The
respondent’s continued representation of the client under those
circumstances also violated Prof.Cond.R. 1.16(a)(1), which requires lawyers
to terminate representation if the representation will result in a
violation of the Rules of Professional Conduct or other law.[6] By filing
the same or substantially similar complaints after the first complaint was
dismissed, the respondent violated Prof.Cond.R. 3.1, which prohibits
lawyers from initiating or defending frivolous proceedings or issues in
proceedings.[7] Finally, the respondent violated Prof.Cond.R. 8.4(c) for
falsely representing to the employer’s counsel that she was authorized to
dismiss the second lawsuit when that was untrue.[8]
Under Count II, the parties agree that after being appointed an
estate’s personal representative and entering an appearance as the attorney
of record in February 1995, the respondent failed to file the statutorily-
required inventory for the estate within two months of her appointment, as
provided by law.[9] The respondent thereafter failed to pay the
inheritance tax due on the estate, which made the estate ineligible for a
5% reduction in taxes due, and as of November 1998 had not filed a Verified
Account or Petition for Final Settlement which kept the estate open on
court’s docket.
We find that by failing timely to file the required inventory, pay the
taxes due, and file a final accounting and request for settlement, the
respondent violated Prof.Cond.R. 1.3.
As to Count III, the parties agree that in late 1992, the respondent
was hired on a contingent fee basis to represent 27 students on a claim
against a business college. Each client paid the respondent $10 for
expenses. The respondent filed a complaint in March 1994. The school
failed to file an appearance or to respond in any way to the complaint.
Although the respondent could have sought a default judgment, the matter
instead languished until July 1996, when the court ordered the respondent
to show cause why the action should not be dismissed pursuant to Ind.Trial
Rule 41(E) for want of prosecution. The respondent subsequently moved to
continue the T.R. 41(E) hearing a total of nine times from July 1996 to
July 1997. Finally, in September 1997, the respondent filed a motion for
default judgment, and then moved the court to continue hearing on that
motion the matter a total of nine times, from September 1997 to June 1998.
In July 1998, after a hearing on the motion, the trial court entered a
default judgment against the school, some four years after the complaint
was filed. During one three year period that the case was pending, one of
the students attempted repeatedly by telephone to contact the respondent to
determine the status of the case. The respondent failed to return all but
one of those calls and never informed the client that she had continued the
case eighteen times.
By her actions in Count III, we find that the respondent violated
Prof.Cond.R. 1.3 by failing to prosecute her client’s case for nearly two
years, and for failing to obtain a default judgment for approximately two
years thereafter. Her failure to provide information about the status of
the pending case in response to repeated phone calls from a client violated
Prof.Cond.R. 1.4(a).
Having found misconduct, this Court must now determine the proper
discipline. In so doing, we examine the surrounding circumstances, the
respondent’s state of mind, the duty violated, actual or potential injury
to the client, the duty of this Court to preserve the integrity of the
profession, the risk to the public, and any mitigating or aggravating
factors. Matter of Christoff and Holmes, 690 N.E.2d 1135 (Ind. 1997);
Matter of Gemmer, 566 N.E.2d 528 (Ind. 1991); Matter of Kern, 555 N.E.2d
479 (Ind. 1990).
In mitigation, the parties have noted that the respondent has no
previous disciplinary history and has expressed regret at her handling of
these matters. They also point out that, during relevant times, the
respondent was serving as an attorney for the Vanderburgh County Office of
Family and Children and agree that her regular caseload of over 100 matters
at any given time in that position was a contributing factor in her neglect
of the cases subject to this proceeding.
The respondent’s inattention to matters entrusted to her prolonged
litigation and in two instances deprived her clients of particular benefits
or legal redress. We do note that under Count III, the respondent did hold
periodic meetings to communicate progress with her clients. Those clients
whose addresses were known to the respondent were notified of such
meetings, but all of the clients did not attend. However, her
communication with clients was sorely lacking in other instances when one-
on-one contact was necessary. Most troubling of all was her handling of
the discrimination action under Count I because aspects of it indicate a
distinct lack of candor with regard to her client, the opposing party, and,
with the serial filing of essentially the same complaint, the courts.
The parties offer resolution of this matter by suspending the
respondent from the practice of law for a period of 90 days. In light of
the pattern of misconduct presented, we agree that a period of suspension
is warranted, and thus approve the parties’ agreement.
It is, therefore, ordered that the respondent be suspended for a
period of ninety (90) days, beginning April 14, 2000, at the conclusion of
which the respondent shall be automatically reinstated to the bar of this
State.
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 respondent claims that she provided her client with a copy
of the dismissal order. The client contends that she never received that
document. In any event, the respondent did not communicate a full
understanding of the consequences of any dismissal to her client.
[2] Indiana Professional Conduct Rule 1.3 requires that a lawyer shall
act with reasonable diligence and promptness in representing a client.
[3] Professional Conduct Rule 1.4(a) provides that a lawyer shall keep
a client reasonably informed about the status of a matter and promptly
comply with reasonable requests for information.
[4] Professional Conduct Rule 1.4(b) requires a lawyer to “explain a
matter to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation.”
[5] Professional Conduct Rule 1.7(b) states that 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.”
[6] Professional Conduct Rule 1.16(a) provides, in relevant part,
that (subject to the exceptions in Prof.Cond.R. 1.16(c)) a lawyer shall not
represent a client or, where representation has commenced, shall withdraw
from the representation of a client if:
(1) the representation will result in violation of the Rules of
Professional Conduct or other law;
(2) the lawyer's physical or mental condition materially impairs the
lawyer's ability to represent the client; or
(3) the lawyer is discharged.
[7] Professional Conduct Rule 3.1 states that lawyers “shall not bring
or defend a proceeding, or assert or controvert an issue therein, unless
there is a basis for doing so that is not frivolous…”
[8] Professional Conduct Rule 8.4 (c) makes it professional misconduct
to “engage in conduct involving dishonesty, fraud, deceit or
misrepresentation.”
[9] I.C. 29-1-12-1.