In Re McClellan

FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT

DISCIPLINARY COMMISSION

James A. Schafer Donald R. Lundberg, Executive Secretary
400 N. High Street 115 West Washington Street
Suite 200 Suite 1165
Muncie, IN 47305 Indianapolis, IN 46204

IN THE

SUPREME COURT OF INDIANA

IN THE MATTER OF )
) Case No. 18S00-0008-DI-498
DONALD K. MCCLELLAN )

DISCIPLINARY ACTION

September 7, 2001

Per Curiam

The respondent, Donald K. McClellan, asserted in a petition filed
before the Indiana Court of Appeals that an earlier decision by that Court
“reads like a bad lawyer joke . . .” Today we approve a Statement of
Circumstances and Conditional Agreement for Discipline between the
respondent and the Indiana Supreme Court Disciplinary Commission calling
for a reprimand of the respondent for that statement.
Having been admitted to the bar of this state in 1981, the respondent
is subject to our disciplinary jurisdiction.
The undisputed facts are that the respondent filed an interlocutory
appeal on behalf of a client against whom a default judgment had been
entered in a personal injury case. The Court of Appeals, in an unpublished
decision issued February 16, 1999, affirmed the default judgment. In doing
so, the Court rejected the respondent’s argument that the plaintiffs’
lawyer had broken his promise to not seek a default judgment against the
respondent’s client. The Court ruled that the plaintiffs had promised only
to refrain from seeking a default judgment without first giving the
defendants thirty days to appear. The Court of Appeals further concluded
that the plaintiffs had fulfilled that promise.
On March 18, 1999, the respondent filed a petition for rehearing in
the Court of Appeals. In that petition, the respondent wrote:
III. SADLY, THE RAMIFICATIONS OF THE COURT’S
DECISION READS (sic) LIKE A BAD LAWYER JOKE . . .
‘WHEN IS IT OKAY FOR A LAWYER TO LIE? WHEN HIS LIPS
ARE MOVING TO AN INSURANCE ADJUSTER . . . .’

This Court’s opinion continues the perception that was
discussed extensively in the Indiana Lawyer, March 3-16,
1999, where the legal profession is attempting a public
relations campaign concerning the public’s perception of
lawyers. The Indiana Lawyer discussed the American Bar
Association’s study that said the public’s perception is
lawyers are more concerned with their own interests
than the public’s or their client’s and expressed a concern
to stop the cocktail party jokes or mute the motion picture
stereotypes that paint the legal professions as greedy and
ruthless.

The Court’s opinion does nothing more than fuel these
perceptions. It is a widely held belief by the general public
that lawyers lie and the Court’s (sic) protect them. This Court
cannot ignore (the plaintiffs’) attorney lied to (an
insurance
adjuster), when he promised not to seek a default, communicated
both orally and in writing, and then later filed a default. The

breaking of a promise is a lie and the essence of the Court’s
holding is that it is acceptable for a lawyer to lie to an
insurance
adjuster.

The Trial Court abused its’ (sic) discretion in not enforcing
(the) promise (of the plaintiffs’ lawyer) not to seek a default.
This Court could have advanced lawyer accountability in
communications by finding the Trial Court abused its’ (sic)
discretion in not enforcing (that) promise and further,
by stating the failure to enforce a lawyer’s promise
not to seek a default constitutes an abuse of discretion
and holding that attorney misrepresentations or lying would
not be tolerated.

Appellant’s Petition for Rehearing at 4 (emphasis in original).

On June 9, 1999, the Court of Appeals published an opinion granting
the petition for rehearing. B&L Appliance and Services, Inc. v. McFerran,
712 N.E.2d 1033 (Ind.Ct.App. 1999). Although it modified its original
decision, the Court of Appeals again affirmed the trial court. The Court
of Appeals also struck the third section of the respondent’s petition for
rehearing set forth above, stating that the accusations were “a disservice
to the client and demeaning to the judiciary and the legal profession.”
We have stated that the judicial institution is greatly impaired if
attorneys choose to assault the integrity of the process and the
individuals who are called upon to make decisions. Matter of Garringer,
626 N.E.2d 809 (Ind. 1994). This court must preserve the integrity of the
process and impose discipline on those who cannot adhere to professional
standards in this regard. Accordingly, Ind.Professional Conduct Rule
8.2(a) prohibits lawyers from making statements that the lawyer knows to be
false or with reckless disregard as to its truth or falsity concerning the
qualifications or integrity of a judge. The respondent’s statement that
the Court of Appeals authorized attorneys to lie supports a negative
perception of lawyers generally and impugns the integrity of the judges who
decided that case. Accordingly, we find that the respondent violated the
rule.
Professional Conduct Rule R. 8.4(d) provides that a lawyer commits
professional misconduct when engaging in conduct prejudicial to the
administration of justice. The respondent violated that rule by engaging
in conduct that demeaned the judiciary and the legal profession.
Given our finding of misconduct, we will now determine whether a
public reprimand is appropriate discipline for it. This assessment
involves analysis of the respondent’s state of mind underlying the
misconduct, the duty of this court to preserve the integrity of the
profession, the risk to the public in allowing the respondent to continue
in practice, and any mitigating or aggravating factors. Matter of Mears,
723 N.E.2d 873 (Ind. 2000).
The respondent has no disciplinary history and his inappropriate
remarks, while misguided, were the product of overzealous advocacy, rather
than selfish or dishonest motive. We have imposed an admonishment for
similar misconduct. See, e.g., Matter of Reed, 716 N.E.2d 426 (Ind. 1999)
(public reprimand for prosecuting attorney who made inaccurate and reckless
statements about newly appointed judge questioning the judge’s integrity).
Accordingly, we find that the agreed sanction of a public reprimand is
sufficient in this case.
It is, therefore, ordered that the respondent, Donald K. McClellan, is
admonished and reprimanded for this misconduct.
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 Clerk of each
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.