FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
DISCIPLINARY COMMISSION
William R. McCord, pro se. Donald R. Lundberg, Executive
Secretary
Seth T. Pruden, Staff Attorney
115 West Washington St., Ste. 1060
Indianapolis, Indiana 46204
___________________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) Case No. 84S00-9806-DI-313
WILLIAM R. McCORD )
DISCIPLINARY ACTION
January 28, 2000
Per Curiam
Attorney William R. McCord represented a client before the United
States Court of Appeals for the 7th Circuit when he was not admitted to
practice before that tribunal. His efforts to litigate his client’s case
there were so replete with missed deadlines and other procedural
deficiencies that the court ultimately dismissed the appeal and barred the
respondent from practicing before the court. We find today that those
actions violated the Rules of Professional Conduct for Attorneys at Law and
that they warrant the respondent’s suspension from the practice of law.
Our jurisdiction in this attorney disciplinary matter is derived from
the respondent’s admission to the bar of this state on October 10, 1980.
Before us now are the duly-appointed hearing officer’s findings of fact and
conclusions of law, entered following an evidentiary hearing on the events
underlying this case. The respondent appeared pro se at the hearing, and
thereafter petitioned this Court for review of the hearing officer’s
report. Where the hearing officer’s report is challenged, we employ de
novo review of the entire record presented to us. Final determination as
to misconduct and sanction rests with this Court. Matter of Lamb, 686
N.E.2d 113 (Ind. 1997); Matter of Gerde, 634 N.E.2d 494 (Ind. 1994); Matter
of Geisler, 614 N.E.2d 939 (Ind. 1993).
As a preliminary matter, we note that in his petition for review of
the hearing officer’s report, the respondent contends that he was denied
due process in this disciplinary proceeding because the hearing officer
denied his motion for pauper counsel. There is no right to appointment of
pauper counsel at public expense in an attorney disciplinary proceeding.
Admission and Discipline Rule 23 contains no provision for the appointment
of pauper counsel. Accordingly, the fact that the hearing officer denied
the respondent’s request for pauper counsel in this case does not indicate
that the respondent was denied due process.
Turning to the facts of this case, we now find that a client retained
the respondent in 1993 to pursue a claim against an insurance company
arising from an automobile accident. The respondent filed a claim in the
Hendricks Circuit Court on July 23, 1993. The defendant insurance company,
without formal opposition from the respondent, later successfully
petitioned to remove the case to federal district court. There it moved
for summary judgment, again initially without formal opposition from the
respondent. While the motion for summary judgment pended, the respondent
petitioned the district court for “remand” to the state trial court. On
May 11, 1994, the district court denied the respondent’s motion for remand,
and several days later granted to the defendant’s motion for summary
judgment.
The respondent then began an appeal of the dismissal to the 7th
Circuit Court of Appeals by filing a motion to extend the period of time he
had to file a notice of appeal. The clerk of the court notified the
respondent that he had not previously been admitted to practice before it.
At no time during the pendency of the case did the respondent submit the
required application form and payment to be admitted to practice before the
7th Circuit.[1]
The court also imposed a briefing schedule, which, due to the
respondent’s unsuccessful Motion to Stay the appeal (based on alleged but
unidentified “newly discovered evidence”), was extended. The respondent’s
first brief, due to be filed on May 10, 1996, was not filed until May 14
and contained several procedural deficiencies.[2] Because of these
irregularities, the clerk of the 7th Circuit issued a deficiency notice on
May 14, 1996. The respondent filed additional materials intended to bring
the brief into compliance eight days after the deadline established in the
deficiency notice. The clerk issued a second deficiency notice that same
day and provided the respondent an additional seven days to make the
necessary corrections. On June 19, 1996, the respondent filed a revised
brief (which was nine days late) along with a “Motion to File Instanter.”
The court issued a third deficiency notice on June 26, 1996, again for the
respondent’s failure to follow the court’s procedural rules. It also found
the “Motion to File Instanter” to be insufficient and thus denied it, and
ordered the respondent to show cause why the appeal should not be
dismissed. On October 29, 1996, the respondent submitted another revised
brief, which the court again found to contain incomplete and incorrect
information. The clerk’s fourth deficiency notice followed the filing of
this brief, and upon order of the court, the respondent was given one final
chance to brief his case in accordance with published rules and guidelines
before November 15, 1996. The respondent did file a brief on November 15;
however, the clerk concluded that substantive changes had been made to the
body of the brief in direct violation of the Federal Rules of Appellate
Procedure and the admonishments of the court contained in the deficiency
notices. Upon motion of the insurance company, the court in January 1997
struck the entire brief because it raised new issues which had not been
presented in the original May 10, 1996 brief. The court also ordered the
respondent to show cause why he should be removed from the roll of
attorneys. On January 22, 1997, the respondent replied, therein arguing
that the briefs “fully complied with the rules dictated by procedural
flexibility of the State of Indiana” and that “under the Indiana rules, as
outlined in that brief, submission of evidence to the court is allowed at
any time in perfecting an appeal.” On February 25, 1997, the 7th Circuit
ordered that the respondent be stricken from the roll of attorneys, despite
the fact that he had never formally been admitted to that bar.
We find that the respondent’s consistent and pervasive inability to
comply with the procedural rules of the 7th Circuit constitutes a failure
to act with the requisite competence, deriving from a lack of the necessary
legal knowledge, skill, thoroughness, and preparation required to protect
his client’s interests. We therefore find that the respondent violated
Ind. Professional Conduct Rule 1.1.[3] By missing numerous appellate
deadlines in his quest to appeal his client’s case, the respondent violated
Prof.Cond.R. 1.3,[4] which requires a lawyer acting on behalf of a client
to handle diligently and promptly those matters. The respondent violated
Prof.Cond.R. 3.4(c)[5] by failing to abide by the 7th Circuit’s rules
governing admission to that court’s bar and the timing and form of briefs
submitted to it. We find that the respondent also violated Prof.Cond.R.
5.5(a)[6] by intentionally failing to become admitted to the bar of the 7th
Circuit, despite the fact that he actively pursued an appeal before it.
Finally, we find that the respondent violated Prof.Cond.R. 8.4(d)[7] by
engaging in conduct prejudicial to the administration of justice by his
extraordinarily deficient handling of his client’s claim before that
tribunal and resultant detriment to that client.
In his petition for review, the respondent alleges that there has been
a “fundamental deprivation of due process” regarding not only this
disciplinary action (as noted above), but also with regard to his client’s
case against the insurer. The respondent then goes on to argue, point by
point, why the federal courts should have referred certain substantive
legal issues back to the Indiana courts for resolution.
Those matters were litigated to finality in the federal courts and the
respondent’s attempts to use this disciplinary proceeding to re-litigate
them collaterally are improper. This disciplinary proceeding’s sole
purpose is to determine whether the respondent engaged in attorney
misconduct and, if so, what the sanction for that misconduct should be.
Neither the respondent’s client nor the insurance company with whom his
client had a dispute is a party to this action, and this is not the forum
now charged with resolving that dispute.
Having found misconduct, we now turn to the issue of determining
proper discipline. In so doing, we examine any factors that mitigate or
aggravate the misconduct. Matter of Corbin, 716 N.E.2d 429; Matter of
Christoff and Holmes, 690 N.E.2d 1135 (Ind. 1997).
Besides his lack of diligence while representing his client before the
7th Circuit, the respondent misunderstood and misapplied the rules and
regulations governing federal appellate practice. When the procedural
deficiencies in his brief were finally corrected, the respondent then
committed more substantive violations of established procedure by placing
into the brief new evidence, contrary to the express admonishment of the
court. Lawyers are bound to represent clients with requisite knowledge,
skill, thoroughness, and preparation reasonably necessary. Prof.Cond.R.
1.1. This may be provided to clients, even in novel or unfamiliar areas of
the law, through, for example, adequate study and preparation or by
association with attorneys experienced in the area. See Comment to
Prof.Cond.R. 1.1. The respondent apparently took no such steps to ensure
that his client benefited from such safeguards. The respondent’s
shortfalls transcended simple lack of preparation and negligence and
ultimately rose to the level of purposeful dereliction of required
procedures (e.g., his failure to become admission to practice before the
7th Circuit). By purposely failing to follow the procedures of the
tribunal that held the key to his client’s legal relief, the respondent
stubbornly deprived his client of any legal redress at all. Given our
concerns over the respondent’s fitness to represent other clients in light
of his performance before the 7th Circuit, as well as in light of the
damage he inflicted upon his client, we conclude that a period of
suspension is warranted.
It is, therefore, ordered that the respondent be suspended for a
period of not less than sixty (60) days, beginning March 1, 2000, at the
conclusion of which he may seek reinstatement provided he can satisfy the
requirements set forth in 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.
-----------------------
[1] Pursuant to Circuit Court Rule 46 in effect at that time, the
respondent, in order to become admitted to that court, was obligated to
complete an application form and tender a $15.00 application fee.
[2] Generally, the procedural deficiencies consisted of
jurisdictional statements or summaries noncompliant with court rules,
improper binding, or improper references to the record.
[3] Indiana Professional Conduct Rule 1.1 provides that a lawyer shall
provide competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation.
[4] Indiana Professional Conduct Rule 1.3 requires that a lawyer shall
act with reasonable diligence and promptness in representing a client.
[5] Professional Conduct Rule 3.4(c) provides that a lawyer shall not
knowingly disobey an obligation under the rules of a tribunal except for an
open refusal based on an assertion that no valid obligation exists.
[6] Professional Conduct Rule 5.5(a) states that a lawyer shall not
practice law in a jurisdiction where doing so violates the regulation of
the legal profession in that jurisdiction.
[7] Professional Conduct Rule 8.4(d) provides that it is professional
misconduct for a lawyer to engage in conduct that is prejudicial to the
administration of justice.