ATTORNEY FOR THE RESPONDENT ATTORNEYS FOR THE INDIANA SUPREME COURT
Marce Gonzalez DISCIPLINARY COMMISSION
Merrillville, Indiana Donald R. Lundberg, Executive Secretary
Gregory N. Anderson, Staff Attorney
ATTORNEYS FOR AMICUS CURIAE, INDIANA TRIAL Indianapolis, Indiana
LAWYERS ASSOCIATION
Karl L. Mulvaney
Nana Quay-Smith
Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 45S00-0505-DI-244
IN THE MATTER OF DANIEL B. STEPHENS, RESPONDENT.
_________________________________
Attorney Discipline Action
Opinion on the Motion to Intervene by the
Indiana Trial Lawyers Association
_________________________________
May 31, 2007
Per Curiam.
On August 11, 2006, this Court approved a "Statement of Circumstances and Conditional
Agreement for Discipline" under which Respondent received a public reprimand for violation of
Indiana Professional Conduct Rules 1.5(a) and 1.8(a) for his fee arrangement with a client in a
medical malpractice action. See In re Stephens, 851 N.E.2d 1256 (Ind. 2006) (“Stephens I”).
Pending before the Court is the "Verified Motion for Leave to Intervene and/or Appear as Amicus
Curiae by the Indiana Trial Lawyers Association and Request for Stay" ("Motion to Intervene")
filed on September 11, 2006, urging the Court to reconsider its conclusion that Respondent had
improperly attempted to circumvent the limitation on attorney fees recoverable under the Indiana
Medical Malpractice Act ("MMA") from the Patient Compensation Fund ("Fund"). The Court
now permits the Indiana Trial Lawyers Association ("ITLA") to intervene and issues this opinion
addressing contingent fees in medical malpractice cases.
I. Background
At the times relevant to this case, the MMA provided that a patient’s damages were
capped at $500,000, the initial $100,000 were to be paid by the health care provider or its insurer,
and damages in excess of $100,000 were to be paid from the Fund. The MMA also provided (as
it does today) that a lawyer’s recovery from the Fund was (and is) limited to 15% of the amount
the client recovers from the Fund. See Ind. Code § 34-18-18-1. Respondent entered into a con-
tingent fee agreement with a client in a medical malpractice case that provided him with a one-
third fee calculated on all sums recovered, accomplished by having the client agree that Respon-
dent’s fee from the first $100,000 recovered plus the 15% attorney fee generated from the Fund
recovery would equal one-third of the total recovery. In addition, Respondent later renegotiated
the fee agreement with the client to include a $10,000 nonrefundable retainer. Respondent did not
advise the client to seek independent counsel.
On August 11, 2006, this Court approved a "Statement of Circumstances and Conditional
Agreement for Discipline" under which Respondent received a public reprimand for violation of
Indiana Professional Conduct Rules 1.5(a) (charging an unreasonable fee) and 1.8(a) (acquiring a
pecuniary interest adverse to the client without written consent from the client). See Stephens I,
851 N.E.2d 1256 (Ind. 2006). The Court stated:
While the medical malpractice statutes do not restrict the amount of attor-
ney fees taken from the first $100,000 recovered, our Rules of Professional Con-
duct do set standards for attorney fees. . . . An attempt to circumvent the statute
limiting the recovery allowed from the Fund is not proper. The limitation on fees
imposed by IC 34-18-18-1 cannot be overcome by merely manipulating the source
of the fees. Regardless of the source of the fee, an attorney's compensation must
still meet the reasonableness requirements of Prof.Cond.R. 1.5(a) and the 15% limi-
tation of IC 34-18-18-1.
....
Respondent's attempt to avoid the statutory limit on Patient Compensation
2
Fund attorney fees was wholly improper. Not only did respondent seek to avoid
the clear language of the statute, but he also sought to do so by suggesting an un-
reasonable fee arrangement, thereby violating the Rules of Professional Conduct.
In the future, violations of this nature are likely to result in discipline that is more
serious.
Id. at 1257-58 (citation omitted).
In its Motion to Intervene, ITLA urges the Court to reconsider its conclusion that Respon-
dent had improperly attempted to circumvent the limitation on attorney fees recoverable from the
Fund. By order dated October 3, 2006, the Court invited participation by entities wishing to ap-
pear as amicus curiae, sending a copy of the order to representatives of the following organiza-
tions: Indiana State Bar Association, Indianapolis Bar Association, Defense Trial Counsel of
Indiana, Indiana State Medical Association, Indiana Department of Insurance, Indiana Hospital
and Health Association, and Indiana State Chiropractic Association. None of these organizations
offered comments on this case. The matter has been fully briefed by ITLA and the Indiana Su-
preme Court Disciplinary Commission ("Commission").
II. Discussion
A. Indiana's Medical Malpractice Act.
The MMA, which is applicable to acts of malpractice occurring after June 30, 1975, see
Ind. Code § 34-18-1-1, set up a system under which health care providers meeting qualifications
set forth in the act ("Qualified Provider") would enjoy certain benefits, including a limitation on
liability. For an act of malpractice occurring after June 30, 1999, the total amount recoverable for
an injury or death is now capped at $1,250,000. See Ind. Code § 34-18-14-3(a)(3). A Qualified
Provider's liability for an occurrence of malpractice is now limited to $250,000. See Ind. Code §
34-18-14-3(b). Any remaining amount due from a judgment or settlement is to be paid from the
Fund. See Ind. Code § 34-18-14-3(c). The MMA limits a lawyer’s recovery to 15% of the
amount the client recovers from the Fund, see Ind. Code § 34-18-18-1, but it specifies no limit on
attorney fees recovered from the amount a client receives from a Qualified Provider.
3
In addressing early constitutional challenges to the MMA, this Court noted the Legisla-
ture's perception of a health care crisis brought on, in substantial part, by providers' inability to
obtain adequate malpractice insurance coverage at reasonable prices.
According to the Legislature's appraisal, these conditions implicated the
vital interests of the community in the availability of the professional services of
physicians and other health care providers. . . .
With these judgments as its basis the Act created voluntary state-
sponsored liability insurance for doctors and other health care providers, created a
patient compensation fund, took measures to prevent injuries to patients through
the negligence of health care providers, and subjected negligence claims against
health care providers to special controls limiting patient remedies.
Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 379-80, 404 N.E.2d 585, 590 (1980).
One challenge in Johnson was to the 15% cap on the lawyer’s recovery from the amount a
client receives from the Fund. This Court found no constitutional infirmity.
The legislative purpose of this restriction is to prevent attorneys represent-
ing plaintiffs from receiving inordinately large fees where contingent fee ar-
rangements have been made. We recognize that plaintiffs' attorneys frequently
and energetically make arduous efforts on behalf of their clients in return for fees
which cannot accurately be characterized as inordinately large. However, this
Court has also noted that abuses of the contingent fee contracts have occurred and
that parties aggrieved by clearly excessive arrangements will receive the protec-
tion of the courts. Contingent fee contracts are sanctioned by the Code of Profes-
sional Responsibility so long as the fee is reasonable.
In this case we examine the limitation imposed upon attorney fees for con-
stitutional purposes alone. We find that there is a direct relationship between the
limitation upon recovery and the limitation on attorney fees. The total amount re-
coverable by the injured patient was limited. The limitation on attorney fees fol-
lows naturally as a means of protecting the already diminished compensation
due claimants from further erosion due to improvident or unreasonable con-
tracts for legal services.
The specific limitation implanted by the Legislature does not seem to be
one which will seriously impede the ability of the injured patient to employ effec-
tive counsel. It does not effect at all the enforceability of contracts made re-
garding fees to be paid from the first $100,000 [now $250,000] of recovery, as
that amount is not received from the compensation fund. However, contracts
providing for fees in excess of the limitation on awards from the compensation
fund are not enforceable. The limitation will in practice result in legal fees
4
ranging between about 20% to 35% of the total recovery. As a general propo-
sition fees at this level are commonly considered reasonable in tort litigation.
Id. at 402, 404 N.E.2d at 602-03 (citations omitted, emphasis added).
The Disciplinary Commission argues that the fee on the amount from the Fund is limited
to 15%, and the fee on the recovery from the provider is limited to a reasonable fee on that
amount. If that were the case, assuming the fee on the amount from the provider is larger than
15%, as the total recovery increases, the fee becomes a smaller percentage of the total. The 20%-
35% range described in Johnson indicates that the Court assumed a contingent fee of 40% on the
amounts recovered directly from the client, and 15% on the amounts recovered from the Fund.
On that assumption, applying the limits of recovery in place at the time Johnson was decided, the
maximum total recovery of $500,000 would produce a fee of 15% of $400,000 plus 40% of
$100,000. That is $60,000 plus $40,000, which is precisely 20% of $500,000. At the other end of
the percentage scale, a total recovery of $125,000, of which only $25,000 would come from the
Fund, would produce a fee of $40,000 plus $3,750, which is precisely 35% of $125,000.
The same assumption underlies our opinions in In re Benjamin, 718 N.E.2d 1111 (Ind.
1999), and Stephens I. In neither of those proceedings was the matter directly addressed, how-
ever, and in Benjamin the fee was unreasonable even if, as ITLA argues, a 40% fee is often rea-
sonable, and can be calculated as 15% on the Fund recovery, plus whatever percentage of the re-
covery from the provider is required to produce a fee of 40% of the total recovery.
B. The Indiana Rules of Professional Conduct.
With respect to attorney fees, the Rules of Professional Conduct state:
A lawyer shall not make an agreement for, charge, or collect an unreasonable
fee or an unreasonable amount for expenses. The factors to be considered in de-
termining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions in-
volved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer;
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(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing
the services; and
(8) whether the fee is fixed or contingent.
Ind. Professional Conduct Rule 1.5(a) (emphasis added). Clients are further protected by the re-
quirement that contingent fee agreements be clearly disclosed in writing and signed by the client.
See Prof. Cond. R. 1.5(c). These rules, coupled with Johnson, mean an attorney may ethically
charge a reasonable percentage of the client's non-Fund recovery in order to recover a reasonable
total fee.
C. Precedent.
Clearly, charging an attorney fee in excess of that allowed by a statute or regulation also
constitutes an ethical violation. In In re Maley, 674 N.E.2d 544 (Ind. 1996), this Court imposed a
public reprimand on an attorney who retained a fee in excess of the fee awarded to him by the
Worker's Compensation Board according to presumptive limits established by Indiana Worker's
Compensation regulations. See also Bauer v. Biel, 132 Ind.App. 224, 177 N.E.2d 269 (1961).
The complication in medical malpractice cases is that the fee from only one of two sources of re-
covery is legislatively capped. The issue is at what point attorney fees charged to the non-Fund
recovery cross the line from producing a reasonable total fee to circumventing the Legislature's
intent to restrict the fees recoverable from the Fund.
In In re Benjamin, 718 N.E.2d 1111 (Ind. 1999), this Court considered the propriety of a
medical malpractice contingent fee under the Rules of Professional Conduct. In that case, simpli-
fying the facts somewhat, under a contingent fee arrangement as interpreted by the attorney, the
attorney would retain 40% of non-Fund recovery if there were no recovery from the Fund. If the
Fund also paid damages, the attorney would retain 100% of the non-Fund portion and 15% of the
Fund portion. See id. at 1112. A settlement was reached under which the client would receive a
gross amount of $100,000 in non-Fund money, $50,000 down, and the balance over several years
6
in a structured settlement. The attorney retained $40,000 from the first $50,000 installment,
thereby claiming substantially more than 40% of the present value of the settlement with the pro-
vider. Later, a settlement under which the client received $335,000 from the Fund was finalized,
and the attorney retained $134,000, which was 40%, of the Fund payment, for a total fee of
$174,000, again more than 40% of the present value of the total recovery. After the client chal-
lenged this distribution, the attorney calculated that he was entitled to 100% of the non-Fund por-
tion ($100,000) plus 15% of the Fund portion ($50,250), for a total fee of $150,250. The client
refused the attorney's offer to return $23,750, and eventually the parties reached a settlement un-
der which the attorney returned about $75,000 to the client. See id. at 1112-13.
This Court issued an agreed public reprimand to the attorney for several ethical violations,
including failing to set forth the complete method of calculating fees in the written fee agreement,
retaining his entire non-Fund contingent fee from the first non-Fund settlement payment, and re-
taining a fee greater than that allowed by statute from the client's recovery from the Fund. See id.
at 1113-14. Of particular relevance to the current case, this Court stated:
[T]he respondent attempted to retain as his fee $100,000 of the $100,000 settle-
ment from the defendant hospital, in addition to 15 percent of the recovery from
the Indiana Patient Compensation Fund. We find that approach to be an attempt
to circumvent the statute limiting the recovery allowed from the Fund. By
retaining as his fee an unreasonable portion of the recovery from the settle-
ment with the hospital, the respondent would have effectively offset the 15 per-
cent limitation on his fee from the Fund recovery.
Id. at 1113 n.2 (emphasis added). As already noted, the fee Benjamin attempted to collect ex-
ceeded 40% of the present value of the total recovery, and also was not at all explained in his fee
agreement, both of which constituted independent grounds for finding a violation of the Rules of
Professional Responsibility.
D. Proceedings on Rehearing.
In response to Stephens I, ITLA moved to intervene and seek rehearing. In capsule form,
ITLA argued that until Stephens I the Court had not made clear that it was adopting the Commis-
sion’s view of the MMA’s limitations on reasonable fees. ITLA presented extensive testimony
by affidavit in support of its view that fees so limited will significantly impair the ability of
7
claimants to present their cases. ITLA notes that a medical malpractice claim often requires sub-
stantially more resources, knowledge, and preparation than a conventional tort. A medical mal-
practice claim potentially involves the presentation to a panel, followed by a trial. Specifically,
many medical malpractice claims require expert testimony and specialized knowledge on the part
of the attorney beyond the demands of conventional tort litigation. ITLA argues that such claims
usually involve extensive intake, screening, and preliminary investigation and consultation; re-
source-intensive medical research, discovery, and consultation with expert witnesses; prelimi-
nary submission to a medical review panel that typically involves hundreds of pages of deposi-
tion testimony, affidavits, medical articles, and medical records, and adds an inherent pre-suit
delay of two to three years; uncommon difficulty of reaching settlements without trial in many
cases; typical litigation expense of $20,000 to $30,000 for cases that settle without trial, and
$40,000 to $65,000 and upwards for cases that go to trial; and a very modest statistical likelihood
of eventual success. Citing data based on the thirty years from 1975-2005, 1 ITLA claims that
only 10.2% of proposed complaints result in a medical review panel finding of medical malprac-
tice, and only 13.8% received any payment from the Fund. As a result of these factors and oth-
ers, ITLA contends that a relatively small number of attorneys are equipped to handle a medical
malpractice claim, and it is entirely reasonable to allow a fee approximating one-third of the en-
tire recovery to the plaintiff, even if it is calculated by applying the statutorily limited 15% to the
Fund recovery, and a much greater percentage to the recovery from the provider or its insurer.
ITLA argues that refusal to permit such a fee will result in denying representation to clients with
more difficult cases, or forcing the clients to accept inexperienced or unqualified counsel.
ITLA asserts that after Benjamin was decided, a group of medical malpractice lawyers,
including ITLA members, sought clarification of the attorney fee issue from the Executive Direc-
tor of the Commission and the State Court Administrator. Although there is some dispute about
what transpired, ITLA asserts the attorneys believed it was ethically permissible to enter into a
"sliding scale" fee arrangement, under which the percent retained from the non-Fund recovery
could vary depending on the amount of Fund recovery to produce a reasonable total fee.
1
See Indiana Patient's Compensation Fund Annual Report for 2005 (Ind. Dept. of Ins. 2006), ITLA's Ap-
p'x. at 124.
8
ITLA states many past and current medical malpractice fee agreements, including the one
initially employed by Respondent in the current case, have been based on this sliding scale con-
cept, often providing for a 35% overall fee, accomplished by a 15% fee from the Fund recovery
plus an amount from the $100,000 non-Fund recovery needed to make the total fee equal to 35%
of the total recovery ("Sliding Scale Fee Arrangement"). 2 ITLA argues, backed by affidavits of
medical malpractice lawyers, that a Sliding Scale Fee Arrangement is reasonable in light of the
expense, time, and risk attendant to representing medical malpractice plaintiffs. It seeks assur-
ance that the Rules of Professional Conduct are not violated by a fee arrangement that produces a
total fee of 20% to 35% of the total recovery.
Under this Sliding Scale Fee Arrangement, the total attorney fee could include 100% of
non-Fund recovery for higher total recoveries. For example, if the total recovery were
$1,250,000 (the maximum currently permitted by the MMA), the maximum possible total attor-
ney fee would be $400,000, calculated by taking 100% of the non-Fund recovery ($250,000)
plus 15% of the $1,000,000 Fund recovery ($150,000). The resulting attorney fee would be 32%
of the total recovery, which is within the range approved in Johnson. Under this Sliding Scale
Fee Arrangement, the fee would range from 32% on the highest recovery of $1,250,000 to 35%,
assuming that 35%, not 40%, is the targeted total recovery. 3 Acknowledging that fees from the
non-Fund recovery are not legislatively capped, the Commission argues that the amount of these
fees must be reasonable in and of themselves. "Absent statutory regulation of the fee from the
Fund recovery, few would argue that a one-third contingent fee is unreasonable. On the other
hand, no one could credibly argue that a 100% contingent fee (or even a contingent fee in excess
of 50%) is reasonable." Disciplinary Commission's Opening Brief on Reasonableness of Fee at
20. The Commission does not directly challenge ITLA’s claims that the complexity and extent
2
Although a Sliding Scale Fee Arrangement could be based on different figures, these figures will be
used for the purpose of discussion in this opinion.
3
ITLA also contends that if the malpractice claim is paid through a structured settlement, the overall
numbers will vary and the lowest total fee could be less than 30%. This assumes that it is reasonable to
collect the fee based on the gross amount of a settlement paid over time, rather than the present value.
Stephens’s case does not present the issue present in Benjamin, and we do not address it here. We note,
however, that if the fee is collected substantially before a material part of the structured settlement, under
Benjamin that must be spelled out in detail in the fee agreement, and the present value of the fee must be
reasonable in relation to the present value of the settlement. See In re Hailey, 792 N.E.2d 851 (Ind. 2003).
9
of medical malpractice litigation justifies compensation at least in the same range as conven-
tional tort litigation, and the Commission concedes that a 33 1/3% contingent fee is ordinarily
reasonable in conventional tort cases. The Commission understandably points to the statute and
to our own decisions discussing it in support of its position.
E. Guidance for a Reasonable Total Fee in Medical Malpractice Actions.
Although a numerical answer to the question of reasonableness might have some utility, it
is simply not possible to put a number on the ethical requirement that attorney fees be reasonable.
Likewise, there can be no "safe harbor" range of permissible fees. Each case is unique and must
be evaluated on its own terms, considering such factors as the complexity of the medical issues,
the risk of a finding of no liability, the degree of dispute over damages, whether the case is fully
tried, the anticipated litigation expenses, etc. That said, however, the Court can offer guidance for
attorneys seeking to ensure that their fee agreements are ethically sound.
That guidance is informed by several principles. First, the constitutionality of the MMA's
fee limitation could be questioned if it is applied in a manner that "seriously impede[s] the ability
of the injured patient to employ effective counsel." Johnson, 404 N.E.2d at 602.
Second, the Legislature limited attorney fees from the Fund to 15%, but it left the determi-
nation of the reasonableness of the total fee for this Court to determine under the Professional
Conduct Rules. Even if a total fee in a medical malpractice case includes 100% of the non-Fund
recovery, the legislative limit on Fund money still acts as an effective cap on the total fee at the
higher ranges. As demonstrated above, under the Sliding Scale Fee Arrangement, if an attorney
undertakes and fully tries a complex, hotly disputed, and risky medical malpractice case, and suc-
ceeds in winning a maximum verdict of $1,250,000 for the client, the maximum fee is $400,000,
or 32% of the total recovery.
Third, as suggested in Johnson, contingent attorney fees of up to 35% are commonly con-
sidered reasonable in tort litigation. In complex cases not governed by the MMA, an even higher
contingent fee might be considered reasonable, though we agree with the Commission that 40% is
10
ordinarily the maximum. We cannot say the employment of the Sliding Scale Fee Arrangement to
yield a contingent fee in the 32-35% range is unreasonable in all medical malpractice cases. To
the extent Johnson, Benjamin, or Stephens I suggests otherwise, they are overruled.
Fourth, Indiana law holds in high regard the freedom of parties to enter into contracts of
their own making. See Fresh Cut, Inc. v. Fazli, 650 N.E.2d 1126, 1129-30 (Ind. 1995). If an at-
torney and client enter into an arms-length, fully informed, and freely negotiated fee agreement
along the lines of the Sliding Scale Fee Arrangement, this would be a strong indication that the
resulting fee is reasonable and thus ethical. However, the Rules of Professional Conduct impose
special requirements with respect to contingent fees. Prof. Cond. R. 1.5(c). An agreement con-
taining a Sliding Scale Fee Arrangement must make clear that the client’s recovery, if any, may be
paid in part from the Fund and in part from other sources, indicate that the MMA limits the law-
yer’s fee attributable to that part of the recovery paid from the Fund to 15%, 4 and clearly explain
the operation of the Sliding Scale Fee Arrangement in relation to this statutory requirement.
Finally, fees of all types in all manner of cases must be reasonable based on all the factors
listed in Professional Conduct Rule 1.5(a). In some medical malpractice cases, a total fee of 32-
4
The Appendix supplied by ITLA includes an example of an agreement that meets this disclosure re-
quirement:
The Indiana Medical Malpractice Act ("Act") restricts the amount that can be
recovered for a medical malpractice claim. No patient, regardless of the severity of the
malpractice or the resultant injuries, can recover more than $1,250,000. A doctor or other
health care provider is not liable for an amount in excess of $250,000 of compensation.
Any amount due from a judgment or settlement that is in excess of the total liability of all
health care providers is paid from the Indiana Patients Compensation Fund ("Fund").
The Act further requires that a claim be presented to a medical review panel before it is
filed in a court of law.
In order to further discourage malpractice suits, the Act restricts the ability of the
Attorneys and Clients to enter into the normal contingent fee agreement concerning any
amounts paid by the Fund. It restricts Attorneys' fees on payments from the Fund to a
maximum of 15%.
See ITLA's App'x at 147. These provisions are set forth to illustrate an acceptable method of describing
that the client’s recovery, if any, may be paid in part from the Fund and in part from other sources and
that the MMA limits the lawyer’s fee attributable to that part of the recovery paid from the Fund to 15%.
The Court expresses no opinion as to the reasonableness of the fee in the sample agreement either as a
general proposition or as applied to that case.
11
35% may be unreasonably high. The 20 to 35% range mentioned in Johnson suggests that a lower
fee may be more appropriate in some cases. It is, of course, permissible to construct fee arrange-
ments that escalate the percentage of recovery, depending on the stage of the proceeding—pre-
panel, pre-discovery, pre-trial, etc.—at which it is achieved. And the rules with respect to dis-
bursement of attorney fees in the case of structured settlements remain unaffected by this opinion.
F. Appropriate Sanction for Respondent.
In the current case, the Court approved an agreement under which Respondent received a
public reprimand for violation of Professional Conduct Rules 1.5(a) and 1.8(a). Under the guid-
ance set forth above, this remains an appropriate sanction for several reasons. First, Respondent
agreed that the fee arrangement in this particular case was unreasonable under Professional Con-
duct Rule 1.5(a). Respondent has asked for no relief from this concession and the Court sees no
reason to revisit it sua sponte. Moreover, this Court found that the nonrefundable retainer provi-
sion of Respondent's agreement also violated Professional Conduct Rule 1.5(a) in the circum-
stances of this case and that Respondent's second fee agreement violated Professional Conduct
Rule 1.8(a). See Stephens I, 851 N.E.2d at 1258. Respondent's public reprimand therefore stands.
III. Conclusion
The Court grants ITLA's Motion to Intervene, addresses the issue of the reasonableness
of contingent fees in medical malpractice cases as set forth above, and reaffirms the agreed pub-
lic reprimand given to Respondent.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur. Shepard, C.J., concurs in the result with a
separate opinion.
12
Shepard, Chief Justice, concurring in result.
It is far from clear that today’s per curiam represents the best policy for determining rea-
sonable fees at the intersection of Rule 1.5 and the medical malpractice statute. This process has
morphed from an agreed-sanction disciplinary case into something that looks much like rule-
making, except that it has lacked many of the steps thought useful for good rule-making. Partly
for this reason, it does not answer a good many questions important to the topic. I join in the
outcome largely because the submissions of the Indiana Trial Lawyers Association, especially
the brief and the several affidavits, have been so persuasive and the per curiam tracks their re-
quest. And because the defendants against whom they file claims (and their associations and re-
lated institutions with apparent stake in the outcome) have elected to stand silent, and our Disci-
plinary Commission has found itself in the awkward position of noting the interests of a client it
does not represent, the General Assembly.
13