|FOR THE RESPONDENT |FOR THE INDIANA SUPREME COURT |
| |DISCIPINARY COMMISSION |
| | |
|Donna R. Hagedorn |Donald R. Lundberg, Executive |
|Attorney at Law |Secretary |
|957 East Powell Avenue |Charles M. Kidd, Staff Attorney |
|Evansville, IN 47713 |115 West Washington Street, Suite |
| |1060 |
| |Indianapolis, IN 46204 |
IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) CASE NO. 82S00-9601-DI-83
DONNA R. HAGEDORN )
DISCIPLINARY ACTION
March 10, 2000
Per Curiam
Attorney Donna R. Hagedorn neglected the legal affairs of three
clients and, in certain instances, misrepresented to them the status of
their case or mismanaged funds she held in trust for them. For those acts,
we find today that she should be suspended from the practice of law.
This Court appointed a hearing officer who, after conducting a
hearing on the merits, concluded that the respondent engaged in misconduct.
The hearing officer’s report is now before us for final resolution. Since
neither the respondent nor the Disciplinary Commission has challenged the
hearing officer’s findings, we accept and adopt them, but reserve final
judgment as to misconduct and sanction. Matter of Grimm, 674 N.E.2d 551
(Ind. 1996). The respondent’s admission to the bar of this state on May
17, 1967, confers our jurisdiction of this case.
Pursuant to Count I, we now find that a client retained the
respondent some time after May 1989 to perform legal services in a post-
dissolution matter. The client paid the respondent $50 to review the file
and an additional $250 retainer. By July 25, 1989, the client decided to
discharge the respondent due to her inactivity on the case, and sent her a
letter advising her of the termination and requesting return of case file
materials to which she was entitled, as well as the unused portion of the
retainer. Initially, respondent did not respond to the client’s requests.
However, upon a chance meeting in November 1989, the respondent did finally
return to the client the requested materials. To recover the retainer,
however, the client was forced to file a small claims action, resulting in
a judgment for the client in the sum of $100.
We find that the respondent violated Ind.Professional Conduct Rule
1.16(d) by failing to promptly return the client’s file and failing, short
of being compelled by legal judgment, to refund any unearned portion of the
retainer.[1]
Under Count II, we find that the respondent was appointed as guardian
for an individual on January 19, 1989, and appointed representative payee
for the individual’s social security and supplemental security income
checks. The respondent served as representative payee for the social
security checks from February 1989 through approximately January 1990. She
held the same status with respect to the supplemental security income
checks from February 1989 through approximately May 1990.
The respondent deposited the social security checks directly into a
bank savings account. The supplemental security income checks, however,
were not directly deposited, but instead were cashed by the respondent.
She kept the funds at her law office.
On July 25, 1991, the respondent appeared in the Vanderburgh Superior
Court for a hearing on a petition to terminate the guardianship. The court
found that an inventory of the estate was required by the terms of the
guardianship but that it has never been filed. The court ordered the
respondent to file an inventory and to prepare and file an accounting of
the funds she received and spent a month-by-month basis. On December 10,
1991, the court held a show cause hearing regarding the guardianship. The
court rejected the interim accounting the respondent had filed, finding
that the respondent had unlawfully failed to place the social security and
supplemental security income checks in a separate account. The court also
found that the respondent did not maintain any formal records accounting
for funds she gave directly to the ward. Additionally, the court found
that the respondent had taken $500 from the guardianship fund as attorney
fees without court approval. The court discovered a $2,132.56 shortage in
the guardianship funds and ordered the respondent to pay that amount to the
clerk, which the respondent did.
By failing to keep the guardianship funds separate from her own, the
respondent violated Prof.Cond.R. 1.15(a).[2] By failing to file an
inventory and accounting as ordered by the Vanderburgh Superior Court, and
by helping herself to a fee from guardianship funds without court approval,
the respondent violated Prof.Cond.R. 3.4(c).[3]
Under Count III, we find that in March 1988 a couple contacted the
respondent about handling a private adoption. Although she was not able to
assist them at that time, the respondent indicated she might be able to
assist with a private adoption in the future. In March of 1989, the
respondent contacted the couple, indicating she knew of a woman who was due
to deliver her child in April of 1989 and who wanted to make the child
available for adoption. The respondent met with the couple and explained
that they would be responsible for medical and legal expenses for the birth
mother, and postpartum medical expenses for the child. The respondent
indicated that her fee would be $1,200, with $500 of that due immediately.
By check dated March 9, 1989 the couple paid the respondent $500. They
paid an additional $500 to the respondent on April 6, 1989.
The child the couple sought to adopt was born April 21, 1989. The
respondent did not prepare or file a petition for adoption. She did,
however, obtain the birth mother’s consent, and an order of the Vanderburgh
Superior Court releasing the child to the couple’s care on April 24, 1989.
Before the child was released to the couple, the respondent failed to tell
them that a pre-placement investigation was required, and the respondent
did not arrange for such an investigation. Further, the respondent did not
arrange for post-placement supervision as required by the Vanderburgh
Superior Court.
As agreed, the couple, on July 19, 1989, paid to the respondent
$3,001.70 for the medical expenses of the child and the birth mother. In
turn, the respondent agreed to forward the bills for the child to the
couple’s employer for consideration of payment. Although the respondent
failed to forward the bills as agreed, she did sign a personal guarantee of
payment for the hospital expenses associated with the child’s birth. The
hospital later sued the respondent to recover these expenses, in the amount
of $671.10, plus $223.70 in attorney fees. On May 14, 1991, the respondent
entered into an agreed judgment with the hospital.
By the time the child was one year old, the respondent had still not
filed a petition for the couple to adopt the child. On November 28, 1990,
the respondent had the couple come to her office to sign a petition for
adoption. The couple signed the petition, but the respondent failed to
file the petition with the court. The respondent also told the couple that
the birth mother’s parental rights had been terminated in September 1990,
when in fact respondent had no basis to believe that the parental rights of
the birth mother had been terminated.
On April 21, 1991, the child’s second birthday, the adoption still had
not been filed. Nonetheless, the respondent informed the couple the
adoption would be finalized on May 2, 1991. On May 1, 1991, the respondent
informed them that finalization of the adoption would be postponed because
the respondent was required to publish notice (to the putative father) of
the adoption. On June 11, 1991, the respondent informed the couple that
finalization of the adoption would once again be delayed, this time because
the Vanderburgh County Welfare Department had allegedly lost a 1988 home
study done in the couple’s home. In fact, the home study was not a
condition precedent to the adoption and the respondent misrepresented to
the couple that the 1988 home study had been lost.
On July 1, 1991, the couple discharged the respondent as their
attorney and instructed her to forward their files to another attorney.
The respondent forwarded the files as requested.
By failing to arrange the required pre-placement evaluation, failing
to terminate the parental rights of the birth mother and the putative
father, and failing to prepare or file a petition for adoption, the
respondent failed to provide competent representation in contravention of
Prof.Cond.R. 1.1.[4] The respondent’s actions also reflected a disregard
for the clients’ decisions regarding their desire to obtain a private
adoption, and thus violated Prof.Cond.R. 1.2(a), which requires lawyers to
abide by their clients’ decisions regarding the objectives of
representation.[5] By failing to begin formal adoption proceedings and
thereby failing to act with reasonable diligence and promptness in
representing the couple, the respondent violated Prof.Cond.R. 1.3.[6] By
failing to keep the couple reasonably advised about the status of the
adoption, and failing to explain the matter to the extent reasonably
necessary to allow the clients to make informed decisions about the
representation, she violated Prof.Cond.R. 1.4.[7] By purposefully
misleading the couple about the course and status of the adoption
proceedings, the respondent engaged in conduct involving dishonesty, fraud,
deceit or misrepresentation in violation of Prof.Cond.R. 8.4(c).[8]
Having found misconduct, we must now determine an appropriate
discipline. The Disciplinary Commission, in a memorandum on sanction,
argues that the serial nature of the respondent’s neglect (of both clients’
legal matters and funds) and her purposeful deception of clients calls for
a severe sanction.
The respondent’s pattern of neglect of her clients’ cases demonstrates
serious shortcomings in her commitment to represent zealously their
interests. See Preamble, A Lawyer’s Responsibility, Rules of Professional
Conduct. Clients were forced to take additional action to receive the
services they had paid the respondent to provide, with one client even
having to resort to legal action to recover from the respondent fees she
had not earned. Equally disconcerting is the respondent’s mishandling of
a client’s funds. Few other acts of misconduct impugn the integrity of the
bar or place the public more at risk than an attorney’s mismanagement of
funds held in trust. Matter of Brooks, 694 N.E.2d 724 (Ind. 1998).
Finally, the respondent went beyond neglect into the realm of purposeful
wrongful misconduct by repeatedly misleading her adoption clients as to the
status of their pending case.
In similar cases of serial neglect or neglect coupled with other
attendant misconduct, this Court has suspended the offending lawyers from
the practice of law. Matter of Cherry, 658 N.E.2d 596 (Ind. 1995) (90 day
suspension for neglecting to file a criminal appeal, along with
misrepresenting the status of the appeal to the client); Matter of Kelly,
655 N.E.2d 1220 (Ind. 1995) (suspension for eighteen months for four counts
of neglect); Matter of Chovanec, 695 N.E.2d 95 (Ind. 1998) (one-year
suspension for serial neglect and mishandling of client funds,); Matter of
Newman, 659 N.E.2d 1044 (Ind. 1996) (three counts of misconduct coupled
with mishandling of client’s funds resulted in a six-month suspension
without automatic reinstatement). In light of this precedent and the
similar facts of this case, we conclude that the present misconduct
warrants a moderate period of suspension in order to demonstrate our
intolerance of the respondent’s conduct and to protect the public and the
profession.
Accordingly, the respondent, Donna R. Hagedorn, is hereby suspended
from the practice of law for a period of six (6) months, beginning April
14, 2000, at the conclusion of which she shall be automatically reinstated.
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] Professional Conduct Rule 1.16(d) provides: Upon termination of
representation, a lawyer shall take steps to the extent reasonably
practicable to protect a client’s interests, such as giving reasonable
notice to the client, allowing time for the employment of other counsel,
surrendering papers and property to which the client is entitled and
refunding any advance payment of fee that has not been earned. The lawyer
may retain papers relating to the client to the extent permitted by other
law.
[2] Professional Conduct Rule 1.15(a) provides: A lawyer shall hold
property of clients or third persons that is in a lawyer’s possession in
connection with a representation separate from the lawyer’s own property.
Funds shall be kept in a separate account maintained in the state where the
lawyer’s office is situated, or elsewhere with the consent of the client or
third person. Other property shall be identified as such and appropriately
safeguarded. Complete records of such account funds and other property
shall be kept by the lawyer and shall be preserved for a period of five
years after termination of the representation. A lawyer may deposit his or
her own funds reasonably sufficient to maintain a nominal balance.
[3] Professional Conduct Rule 3.4(c) provides: 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] Professional Conduct Rule 1.1 provides:
A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.
[5] Professional Conduct Rule 1.2(a) provides:
A lawyer shall abide by a client’s decisions concerning the objectives of
representation, subject to paragraphs (c), (d) and (e), and shall consult
with the client as to the means by which they are to be pursued. A lawyer
shall abide by a client’s decision whether to accept an offer of settlement
of a matter. . .
[6] Professional Conduct Rule 1.3 provides:
A lawyer shall act with reasonable diligence and promptness in representing
a client.
[7] Professional Conduct Rule 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.
[8] Professional Conduct Rule 8.4(c) provides:
It is professional misconduct for a lawyer to engage in conduct involving
dishonesty, fraud, deceit or misrepresentation.