In Re Levy

FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT

DISCIPLINARY COMMISSION

Ronald E. Elberger Donald R. Lundberg, Executive
Secretary
135 N. Pennsylvania St. Charles M. Kidd, Staff Attorney
Indianapolis, IN 46204 115 West Washington St., Ste. 1060
Indianapolis, IN 46204

IN THE

SUPREME COURT OF INDIANA

IN THE MATTER OF )
) Case No. 49S00-9406-DI-582
WILLIAM LEVY )

DISCIPLINARY ACTION

April 20, 2000

Per Curiam

Attorney William Levy, not wanting his client to discover that he
missed a hearing on the client’s behalf, redacted language referring to his
absence from the copy of the court’s final order, which he then provided to
his client. For his purposeful concealment of information from his client,
we find that a period of suspension is warranted.
This matter was brought before a hearing officer, appointed pursuant
to Ind.Admission and Discipline Rule 23(17), who found misconduct as
charged. Our jurisdiction in this case arises from the respondent’s
admission to the bar of this state on September 21, 1966. When, as here,
neither the Commission nor the respondent challenge the findings of the
hearing officer, we accept and adopt those findings but reserve final
judgment as to misconduct and sanction. Matter of Gallo, 619 N.E.2d 921
(Ind. 1993).
The Commission’s charges relate to the respondent’s representation of
a defendant insurance carrier and an insured in a small claims case. We
now find that after entering an appearance on the defendants’ behalf in the
Vigo County Court, the respondent filed a motion for continuance, which the
court granted on September 14, 1993. The respondent, failing to mark the
new trial date on his calendar, missed the bench trial held on December 7,
1993. After conducting a hearing on the damages sought by the plaintiff,
the court entered a default judgment of $953.80 against the respondent’s
clients. The introductory sentences of the order granting default judgment
referred to the respondent’s failure to attend the trial. After receiving
a copy of the court’s order, the respondent then redacted those
introductory sentences from it and forwarded the copy containing the
redactions to the insurer that he represented. That client subsequently
discovered the modification of the order in April 1994, after the plaintiff
filed a case against the insurer with the Indiana Department of Insurance.
The respondent’s willful concealment of the fact that he missed the
bench trial violates Prof.Cond.R. 8.4(c), which provides that it is
“professional misconduct for a lawyer to engage in conduct involving
dishonesty, fraud, deceit or misrepresentation.” Additionally, the
respondent’s withholding of information from his client violates
Prof.Cond.R. 1.4(a), which requires lawyers to “keep a client reasonably
informed about the status of a matter and promptly comply with reasonable
requests for information.”
Having found misconduct, we must now determine a proper sanction. In
so doing, we consider the nature of the misconduct and any mitigating or
aggravating factors. We also examine the facts surrounding the misconduct,
the respondent’s state of mind, duties that were violated, the actual or
potential injury to the client, and the risk to the public. Matter of
Drozda, 653 N.E.2d 991 (Ind. 1995).
In mitigation, the hearing officer found that the respondent has
conducted himself in an exemplary fashion during his thirty-two years of
practice, with this complaint being his first. The hearing officer was
also persuaded that the respondent’s motive arose from his embarrassment
from missing the bench trial and not from an intent to defraud or deceive
his clients on the substantive issues of their case. Additionally, the
hearing officer found that although the respondent failed initially to
inform the insurer of his failure to appear, he did later fully disclose
that fact. Finally, the hearing officer found that the insurer
subsequently engaged the respondent to represent it in other matters and
was persuaded that the client’s confidence in the respondent also
constituted a mitigating factor.
We have suspended lawyer for similar acts of untruthfulness and
concealment. For example, a lawyer who told his client that his appeal had
failed when in fact the lawyer missed the appellate filing deadline was
suspended for thirty days. Matter of Cherry, 658 N.E.2d 596 (Ind. 1995).
Similarly, a lawyer who assured his client that a case had been filed when
it in fact had not been filed received a thirty-day suspension. Matter of
Gielow, 601 N.E.2d 640 (Ind. 1992).
Although the respondent in this case may have been motivated to
redact the language by his embarrassment about missing the hearing, his
misconduct nonetheless represents an attempt to willfully conceal from his
client an important fact impacting the case. Adequate communication and
integrity when dealing with clients is a vital component of any attorney-
client relationship. Here, the respondent purposefully compromised that
foundation in order to protect himself. Accordingly, this Court finds
that a period of suspension is an appropriate sanction.
It is, therefore, ordered that the respondent be suspended for a
period of thirty (30) days, beginning June 2, 2000. At the conclusion of
that period of suspension, he 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 the respondent as reflected in the records of the Clerk.
Costs of this proceeding are assessed against the respondent.