FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
DISCIPLINARY COMMISSION
No appearance Donald R. Lundberg, Executive Secretary
Dennis K. McKinney, Staff Attorney
115 West Washington Street, Ste. 1060
Indianapolis, IN 46204
______________________________________________________________
IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) Case No. 20S00-9610-DI-675
CARLOS A. RAZO )
_____________________________________________________________________
DISCIPLINARY ACTION
_____________________________________________________________________
December 16, 1999
Per Curiam
In six instances, the respondent, Carlos A. Razo, failed to represent
diligently the interests of his clients. On some of those occasions, he
failed to return to them requested case file materials or unearned legal
fees. For that, we find today that he should be suspended from the
practice of law.
This attorney disciplinary case comes before us upon the duly
appointed hearing officer’s findings of fact and conclusions of law.
Because neither the respondent nor the Disciplinary Commission has
petitioned this Court for a review of those findings and conclusions, this
matter is now ripe for final resolution. Our jurisdiction here is
conferred by the respondent’s admission to the bar of this state in 1991.
As a preliminary note, we recognize that, due to the severity of the
charges against him, the respondent has been suspended pendente lite from
the practice of law since October 21, 1997. See Ind.Admission and
Discipline Rule 23(11.1)(b).
The Commission introduced no evidence as to Count I of the verified
complaint for disciplinary action underlying this proceeding. As to Count
II, we now find that the parents of a man convicted of child molesting
hired the respondent to complete an appeal of that conviction after the
death of the attorney who had been handling the case. Rather than pursue a
direct appeal, the respondent chose to have the case remanded to the trial
court for post-conviction relief proceedings. The trial court denied the
subsequent petition for post-conviction relief on May 31, 1995. On July 7,
1995, the respondent filed a praecipe for appeal of that denial, but never
notified the defendant or his parents that he filed the praecipe. Despite
the parents’ frequent attempts to contact the respondent, he failed to
communicate with the parents about the status of the appeal, other than to
inform them falsely that he had been granted several extensions of time to
file it. The parents ultimately hired another attorney to file a petition
for belated appeal of the denial of the petition for post-conviction
relief, but the Court of Appeals denied that petition.
We find that, by his actions in Count II, the respondent violated
Ind.Professional Conduct Rule 1.1[1] by failing to file timely a praecipe
for appeal of the trial court’s denial of the defendant’s petition for post-
conviction relief. By failing to act with reasonable diligence and
promptness in filing the praecipe for appeal, the respondent violated
Prof.Cond.R. 1.3.[2] By failing to keep his client reasonably informed
about the status of the contemplated appeal, the respondent violated
Prof.Cond.R. 1.4(a).[3]
Under Count III, we now find that a client hired the respondent
in early 1996 to update her will and draft a power of attorney. She paid
the respondent a fee of $150 and gave him a copy of her existing will.
Thereafter, she tried to reach the respondent on several occasions, but he
failed to respond or acknowledge her attempts to contact him. On May 13,
1996, the client parked in front of the respondent’s office and waited for
him. When she spoke to him as he was leaving the office, the respondent
told her that he thought he had already prepared the will and power of
attorney and assured her that he would send to her a copy of each. The
next day, the respondent telephoned the client and informed her that he had
failed to save the documents on his computer, but that he would have new
copies prepared and sent to her. When he failed to follow through, the
client again tried on numerous occasions to contact him, but was unable to
reach him.
By failing to prepare promptly the updated will and power of
attorney for his client, the respondent under Count III violated
Prof.Cond.R. 1.3. By failing to keep that client informed about the status
of the work he was hired to do, and by failing to return her phone calls,
the respondent violated Prof.Cond.R. 1.4(a).
Pursuant to Count IV, we now find that the parents of a
defendant charged with aggravated battery and dealing in a sawed-off
shotgun hired the respondent, paying him a fee of $900. The defendant
instructed the respondent to seek a bond reduction and to not continue the
court dates. Despite those instructions, the respondent continued several
trial dates without seeking his client’s permission to do so and failed to
seek a bond reduction. Instead of informing the defendant or his parents
in advance of the continuation of trial dates, the respondent would meet
them on the scheduled court date when they appeared for hearing and inform
them of the continuance. Despite numerous attempts by the parents and the
defendant to contact the respondent to inform him of their desire for a
bond reduction and prompt court date, they were unable to reach the
respondent in large part because he failed to respond to their telephone
calls or letters. The father eventually resorted to firing the respondent
because of his failure to follow their instruction regarding the objectives
of the representation. The respondent never returned any portion of the
fee paid to him for the representation, despite the fact that he sought
neither bond reduction nor prompt hearing.[4]
By failing to abide by the defendant’s instructions to seek a bond
reduction and not to continue the trial settings, the respondent violated
Prof.Cond.R. 1.2(a), which requires lawyers to abide by their clients’
decisions regarding the objectives of representation, and to consult with
clients about the means by which they are to be pursued.[5] By failing
promptly or diligently to seek the bond reduction, the respondent violated
Prof.Cond.R. 1.3. By failing to keep the defendant and his family
adequately informed about the status of the case, the respondent violated
Prof.Cond.R. 1.4(a).
Under Count V, we now find that a client hired the respondent to
represent him at a sentencing hearing upon his conviction of being a
habitual traffic offender, and to appeal that conviction. On January 12,
1996, the respondent filed a praecipe for appeal. Later, although a trial
transcript was prepared, the respondent failed to file a record of
proceedings with the Court of Appeals. The client and his wife tried to
contact the respondent, but were never able to reach him. They learned
that the respondent had closed his law office, disconnected his telephone,
and moved without leaving any forwarding information. On one occasion, the
client’s wife by chance met the respondent in a bar, and used that
opportunity to fire the respondent and ask for return of a $1,700 retainer
they had paid to him as well as items from the client’s file. The
respondent refused to return to them case file materials to which they were
entitled. Later, after they filed a grievance against the respondent and
the Commission asked the respondent for a response to the allegations
contained therein, the respondent failed to respond.
We find that the respondent violated Prof.Cond.R. 1.3 by failing
promptly or diligently to pursue an appeal of his client’s criminal
conviction. By failing to keep his client apprised of the status of the
contemplated appeal and failing to respond to his inquiries about the case,
the respondent violated Prof.Cond.R. 1.4(a). After his termination from
representing the client, the respondent failed to turn over to the client
case file materials and unearned legal fees to which the client was
entitled, and thus violated Prof.Cond.R. 1.16(d).[6] By failing to respond
to the Commission’s demand for information during its investigation, the
respondent violated Prof.Cond.R. 8.1(b).[7]
Pursuant to Count VI, we now find that on October 12, 1994, the
respondent was appointed as appellate counsel to appeal a drug conviction.
A trial transcript was completed and delivered to the respondent on October
26, 1994. The respondent took no action on the appeal during the next two
years, and was finally discharged as counsel on the case on January 15,
1997.
By failing to act diligently or promptly to appeal his client’s
conviction, the respondent violated Prof.Cond.R. 1.3. By failing to keep
his client adequately informed about the status of the case or promptly to
respond to his client’s requests for information about it, the respondent
violated Prof.Cond.R. 1.4(a).
As to Count VII, we now find that the respondent represented a
criminal defendant as court-appointed counsel. A jury convicted the
defendant on January 2, 1995, and the respondent was appointed as counsel
for any appeal. He filed a praecipe for appeal with the trial court clerk
on January 3, 1995. The trial transcript was completed and delivered to
the respondent on March 2, 1995. The respondent then did nothing further
in pursuit of the appeal, but in June of 1996 informed the defendant that
his appeal had been filed and was being considered by the Court of Appeals.
On January 15, 1997, he was removed as appellate counsel. The respondent
later again failed to respond to the Commission’s request for a response to
the grievance filed in reaction to his failure to act.
By failing to employ reasonable diligence and promptness in appealing
his client’s criminal conviction, the respondent violated Prof.Cond.R. 1.3.
By failing to respond to the Commission’s demand for a response to the
grievance, the respondent violated Prof.Cond.R. 8.1(b).
We must now determine what discipline is appropriate for the
respondent’s misconduct. In so doing, we consider the fact that he has
demonstrated a pattern of total abandonment of his clients’ causes, without
bothering to seek formal withdrawal or even to extend the professional
courtesy of advance notice or truthful explanation to his clients. In some
instances, he compounded the injury his clients suffered by failing to
release to them case file materials or unearned fees to which they were
entitled. His clients’ mounting alarm apparently only persuaded the
respondent, in certain circumstances, to fabricate excuses as to why the
work was not done. By the time of hearing on the disciplinary complaint,
the respondent abandoned even that tactic, and failed to appear at any
proceeding in this matter. The respondent’s neglect was severe, causing
injury to his clients in the form of missed legal deadlines and the like.
Based on these considerations, we conclude that he should be removed from
the practice of law and readmitted only pursuant to the most stringent
standards governing readmission.
It is, therefore, ordered that the respondent, Carlos A. Razo,
be suspended from the practice of law in this state for a period of not
fewer than three years, effective immediately. In order to be readmitted
to the practice of law at the conclusion of that period, he must
demonstrate to this Court his satisfaction of the requirements for
reinstatement contained 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 Federal District Courts in this state, and the clerk of each 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 the respondent.
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[1] Indiana 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.
[2] Professional Conduct Rule 1.3 provides:
A lawyer shall act with reasonable diligence and promptness in
representing a client.
[3] Professional Conduct Rule 1.4(a) provides:
(a) A lawyer shall keep a client reasonably informed about the status
of a matter and promptly comply with reasonable requests for information.
[4] Although it is not necessary for a lawyer to obtain the client’s
desired outcome in order to be entitled to a fee for legal services, a
lawyer should take some logical, tangible, substantive step toward
resolution of the client’s problem. Matter of Schneider, 710 N.E.2d 178,
181 (Ind. 1999) (finding that an attorney’s billing of a client when the
attorney had taken no substantive step toward resolution of legal problem
was indicative of unreasonable fee). Here, there is no evidence that the
respondent took any significant action on behalf of his client.
[5] Professional Conduct Rule 1.2(a) provides, in relevant part:
A lawyer shall abide by a client’s decisions concerning the
objectives of representation, . . ., and shall consult with the client as
to the means by which they are to be pursued.
[6] 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 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.
[7] Professional Conduct Rule 8.1(b) provides:
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 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.