FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
DISCIPLINARY COMMISSION
No appearance Donald R. Lundberg, Executive Secretary
Robert C. Shook, Staff Attorney
115 West Washington Street, Ste. 1060
Indianapolis, IN 46204
______________________________________________________________
IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) Case No. 30S00-9803-DI-159
DAVID J. PUTERBAUGH )
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DISCIPLINARY ACTION
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October 7, 1999
Per Curiam
The respondent[1] in this disciplinary action consented to pendente
lite suspension beginning September 23, 1998, amid allegations that he,
inter alia, informed his client that he had settled a lawsuit on the
client’s behalf when in fact the respondent had taken no action and
obtained no settlement. Those allegations are now before this Court for
final judgment.
This case comes to us upon the duly appointed hearing officer’s
findings of fact and conclusions of law, tendered pursuant to Ind.Admission
and Discipline Rule 23(14)(f). The hearing officer, following evidentiary
hearing at which the respondent failed to appear, concluded that the
respondent engaged in misconduct as charged and recommended that he be
suspended for a period of not less than 18 months. Neither the respondent
nor the Disciplinary Commission petitioned this Court for review of those
findings or conclusions, and, that being the case, we accept and adopt the
factual findings, but reserve final judgment as to misconduct and sanction.
Matter of Lamb, 686 N.E.2d 113 (Ind. 1997).
We now find that, beginning in 1992, the respondent represented a
client who sought adjustment to his worker’s compensation benefits after he
reinjured his kneecap. On November 30, 1993, the Worker’s Compensation
Board denied the client’s August 1992 application for benefits. The client
then hired the respondent to bring a medical malpractice action against the
surgeon who treated the client’s initial 1991 injury to his kneecap and who
had subsequently released him to return to work. The respondent and the
client agreed that the respondent’s fee for the representation would be ten
percent of any gross recovery, but no written fee agreement was prepared.
Several months later, the respondent informed his client of a successful
recovery on the malpractice claim, and, on February 8, 1996, presented the
client with a check for $5,028.75 as partial payment of medical bills. The
check was drawn on the respondent’s “Attorney at Law” account, but bore no
explanation on the memo line. The respondent showed his client a written
breakdown of various medical bills related to the payment. The respondent
also advised his client that he had obtained for him a total settlement of
$60,000 for remaining medical expenses, future pain and suffering, and
partial disability. The respondent had never consulted with the client
about the settlement amount or even if, in fact, the client desired to
settle.
About a month later, the respondent presented to the client a second
check, this one for $8,070, proclaiming it to be for lost wages. It, too,
was drawn on the respondent’s “Attorney at Law” account with no memo line
explanation. Following receipt of this check, the client began leaving
telephone messages for the respondent and requested that he return the
calls. The respondent failed to do so. On April 1, 1996, the respondent
and the client met by chance on a city street in Richmond, Indiana.
During this meeting, the respondent told his client that other settlement
proceeds would arrive within the next week to ten days. After that
meeting, the client neither spoke to nor heard from the respondent, despite
the client’s persistent efforts to reach him. At the hearing of this
disciplinary case, the client estimated that out of about 60 scheduled
meetings he had with the respondent during the four and one-half years he
represented him, the respondent canceled about 50 at the last minute,
usually after the client had traveled to the appointment site. On June
11, 1997, the client mailed a certified letter to the respondent
terminating his representation of him and requesting return of case file
materials, which the respondent made available on July 25, 1997. The
respondent had never contacted the surgeon who treated the client and had
never filed a complaint or any other pleading with any entity to initiate
the medical malpractice action. The $13,098.75, which the respondent paid
to the client, was in fact not settlement proceeds but instead money drawn
from the respondent’s personal funds.
On August 19, 1997, while investigating the grievance underlying this
case, the Commission asked the respondent for a written response, and,
after receiving none, renewed its request on October 6, 1997. On October
29, 1997, the respondent submitted a one-page response in which he
discussed the client’s worker’s compensation claim but failed to address
issues regarding the contemplated medical malpractice claim.
Indiana Professional Conduct Rule 1.2(a) requires that lawyers abide
by their clients’ decisions concerning the objectives of representation.
Professional Conduct Rule 1.3 requires that lawyers act with reasonable
diligence and promptness in representing clients. The respondent failed to
satisfy the requirements of either rule when he failed to initiate the
medical malpractice action as requested by his client.
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. The respondent failed to keep
his client informed in any meaningful way about the true status of his
contemplated action, and failed to comply with dozens of reasonable
requests for information about the representation. Professional Conduct
Rule 1.4(b) requires a lawyer to explain matters to a client to the extent
reasonably necessary to permit the client to make informed decisions about
the representation. The respondent provided his client with no genuine
information of any use or value, and thus denied him the ability to make
any decision whatsoever regarding the representation. In light of this, we
conclude that the respondent violated Ind.Professional Conduct Rule 1.4.
Professional Conduct Rule 1.5(c) requires that contingency fee
agreements be in writing. The respondent never reduced his contingency fee
agreement with his client to writing and therefore violated the rule.
Professional Conduct Rule 8.1(b) provides that a lawyer shall not
knowingly fail to respond to a lawful demand for information in connection
with a disciplinary matter. The respondent first failed to respond at all
to the Commission’s first request for information, then provided a
completely unresponsive reply to the second. We find that both actions
violated Prof.Cond.R. 8.1(b).
Pursuant to Prof.Cond.R. 8.4(c), it is professional misconduct for a
lawyer to engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation. The respondent falsely informed his client that a
$60,000 settlement had been obtained when that was untrue, then perpetuated
the ruse by paying to his client bogus “settlement” proceeds. These acts
violated Prof.Cond.R. 8.4(c).
Having found misconduct, we now turn to deciding upon proper
discipline. The respondent’s intentional deception of his client as to the
status of the representation and the great lengths to which the respondent
went to perpetuate the deception of his client are reprehensible. In that
regard, we note that his present misconduct is almost identical to that
underlying his past disciplinary problems. Matter of Puterbaugh, 694
N.E.2d 281 (Ind. 1998) (60 day suspension for failure to prosecute a case
on behalf of a client, then falsely advising the client that the case was
progressing and paying the client $500 in bogus “settlement” proceeds).
Accordingly, we now find that a more lengthy suspension is warranted and
thus adopt the recommendation of the hearing officer, including the
requirement that the respondent demonstrate to this Court his fitness to
practice before being readmitted.
It is, therefore, ordered that the respondent, David J. Puterbaugh, be
suspended from the practice of law in this state, beginning September 23,
1998, for a period of not less than 18 months. At the conclusion of that
period, he may petition this Court for reinstatement to the bar of this
state, provided he can satisfy the requirements of Admis.Disc.R. 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] David J. Puterbaugh was admitted to the bar of this state in 1974
and is therefore subject to this Court’s disciplinary authority.