In Re Thonert

|FOR THE RESPONDENT |FOR THE INDIANA SUPREME COURT |
| |DISCIPINARY COMMISSION |
| | |
|Richard J. Thonert, pro se. |Donald R. Lundberg, Executive |
| |Secretary |
| |Dennis K. McKinney, Staff Attorney|
| |115 West Washington Street, Suite |
| |1060 |
| |Indianapolis, IN 46204 |

IN THE

SUPREME COURT OF INDIANA

IN THE MATTER OF )
) CASE NO. 02S00-9902-DI-151
RICHARD J. THONERT )

DISCIPLINARY ACTION

August 22, 2000

Per Curiam

The respondent in this attorney disciplinary matter is charged with
failing to disclose to an appellate tribunal controlling authority known to
him, not disclosed by opposing counsel, that was directly adverse to his
client’s position. He also failed to advise his client of the adverse
authority when his client was contemplating his legal options.
This matter is presented to this Court upon the Disciplinary
Commission’s and the respondent’s Statement of Circumstances and
Conditional Agreement for Discipline, entered pursuant to Ind.Admission and
Discipline Rule 23(11)(c), in resolution of this matter. That agreement is
before us now for approval. We note that our jurisdiction of this matter
derives from the respondent’s admission to the practice of law in this
state in 1974.
The parties agree that the respondent represented a client charged
with operating a motor vehicle while intoxicated. Prior to the client’s
initial hearing and before the client met with or hired the respondent, the
client was advised by videotape of his rights. He pleaded guilty to the
charge, and the matter was set for sentencing hearing. Prior to that
hearing, the client met with the respondent to discuss the possibility of
withdrawing his guilty plea. During their meeting, the respondent told the
client of another criminal case, Snowe v. State, 533 N.E.2d 613
(Ind.Ct.App. 1989), in which the respondent had prevailed on appeal for the
defendant. He provided a copy of the Indiana Court of Appeals decision to
his new client. The respondent agreed to represent the client for $5,000,
which the client paid.
Snowe also involved a prerecorded videotaped televised advisement of
rights, but the record in that case failed to indicate whether the
defendant had ever viewed the tape advising him of his rights. Further,
the opinion held that a trial court judge cannot rely solely on displaying
a videotape advisement of rights, but instead must also determine whether
the defendant knows of and understands his rights, the nature of the charge
or charges against him, the full import of the rights waiver in his guilty
plea, and the sentencing possibilities for the charges against him. Snowe,
533 N.E.2d at 617.
At the client’s initial hearing, it was established that he had viewed
the videotape, that the videotape advised him of his rights and the
sentencing possibilities under the charges filed against him, that he
understood the charge against him and his rights as explained in the
videotape, and that he voluntarily waived those rights and pleaded guilty.
On May 30, 1996, the respondent entered an appearance on behalf of the
client and filed a motion to withdraw the guilty plea. The trial court
denied the motion without hearing. The respondent appealed that ruling,
alleging that his client had a right to withdraw the plea because, due to
the absence of counsel at the time he entered it and the fact that the
record did not reflect that the trial court properly examined the client as
to waiver of his rights, the client had not made it knowingly,
intelligently, or voluntarily. The respondent further argued that the
client had a right to a hearing on his motion to withdraw the plea.
The respondent represented the defendant in Fletcher v. State, 649
N.E.2d 1022 (Ind. 1995). In that case, this Court addressed the questions
that the respondent raised in his client’s case. The ruling in Fletcher was
adverse to the arguments that the respondent offered on appeal of his
client’s case.[1] The respondent had served as counsel of record for
defendant Fletcher in the appeal before this Court. This Court’s ruling
in Fletcher was issued on May 1, 1995, over one year before the respondent
filed his appeal on behalf of the client. In his appellate brief filed on
behalf of the client, the respondent failed to cite to Fletcher or argue
that its holding was not controlling authority in the client’s case. The
respondent also failed to argue that the holding in Fletcher should be
changed or extended. Although he advised his client of the Snowe case, he
failed to advise him of Fletcher or explain any impact Fletcher might have
on his case. Opposing counsel had not previously disclosed Fletcher to the
Court of Appeals.
Indiana Professional Conduct Rule 3.3(a)(3) provides that a lawyer
shall not knowingly fail to disclose to a tribunal legal authority in the
controlling jurisdiction known to the lawyer to be directly adverse to the
position of the client and not disclosed by opposing counsel. The concept
underlying this requirement of disclosure is that legal argument is a
discussion seeking to determine the legal premises properly applicable to
the case. Comment to Ind.Professional Conduct Rule 3.3. The respondent’s
intimate familiarity with Fletcher is established by his having served as
counsel to the defendant. Accordingly, we find that the respondent
violated the rule by failing to disclose Fletcher to the Court of Appeals
in his legal arguments on behalf of the client.
Professional Conduct Rule 1.4(b) provides that a lawyer shall explain
a matter to the extent reasonably necessary to permit a client to make
informed decisions regarding a representation. A client should have
sufficient information to participate intelligently in decisions concerning
the objectives of the representation. Comment to Prof.Cond.R. 1.4. By
failing to advise his client of a ruling in the controlling jurisdiction
that was adverse to the legal arguments contemplated for his client’s case
on appeal, and instead choosing only to advise the client of an earlier
appellate decision favorable to his position, the respondent effectively
divested his client of the opportunity to assess intelligently the legal
environment in which his case would be argued and to make informed
decisions regarding whether to go forward with it. Accordingly, we find
that the respondent violated Prof.Cond.R. 1.4(b).
The parties agree that the respondent should be publicly reprimanded
for his misconduct. We agree that a public admonishment is appropriate in
this case, given the negative impact on the efficient resolution of the
client’s appeal occasioned by the respondent’s lack of disclosure and its
attendant deception of the client as to the viability of any efforts to
withdraw the guilty plea. Accordingly, we accept the parties’ agreement
and the discipline called for therein.
It is, therefore, ordered that the respondent, Richard J. Thonert, is
hereby reprimanded and admonished for his violations of Prof.Cond.R.
3.3(a)(3) and 1.4(b).
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 are assessed against respondent.

-----------------------
[1] In Fletcher, we noted, “The defendant’s admission during the initial
hearing that he had seen and understood his rights contradicts his
subsequent claim that his plea was unknowing and involuntary . . .” Id. at
1023. As to the right to a hearing on a motion to withdraw a plea, the
opinion provides that, “[c]onvening a hearing is merely a discretionary
option of the trial court.” Id.