|FOR THE RESPONDENT |FOR THE INDIANA SUPREME COURT |
| |DISCIPINARY COMMISSION |
| | |
|Lucille Uttermohlen, pro se. |Donald R. Lundberg, Executive |
| |Secretary |
| |Charles M. Kidd, Staff Attorney |
| |115 West Washington Street, Suite 1165|
| |Indianapolis, IN 46204 |
IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) CASE NO. 91S00-0110-DI-444
LUCILLE UTTERMOHLEN )
DISCIPLINARY ACTION
May 28, 2002
Per Curiam
Lucille Uttermohlen mailed a letter directly to an adverse party who
she knew was represented by counsel in the legal matter, stating that
opposing counsel’s request for a change of venue was wasteful. Today we
accept Respondent Uttermohlen’s and the Disciplinary Commission’s agreed
resolution of disciplinary charges based on that contact.
The parties tendered their Statement of Circumstances and Conditional
Agreement for Discipline pursuant to Ind.Admission and Discipline Rule
23(11)(c). The respondent was admitted to the bar of this state in 1982
and practices law in White County, Indiana.
The parties agree that the respondent represented a client in a
Chapter 7 bankruptcy, which she filed in the U.S. Bankruptcy Court for the
Northern District of Indiana. Her client resided in the Southern District
of Indiana. One of the client’s creditors was a finance company. The
client owed the finance company $250. The finance company’s counsel filed
a motion for change of venue in the Northern District court. The court
granted the motion, transferring the case to the Southern District court.
Following the change of venue, the respondent sent a letter to two
executives of the finance company, in which she asserted that the finance
company’s counsel was acting in a wasteful manner by seeking transfer of
the case from the Northern District to the Southern District because such
change of venue would not benefit the finance company. She copied the
letter to the finance company’s counsel. In the letter, she also recited
certain facts of the case and stated that both sides would incur extra time
and expense to change the venue.
Indiana Professional Conduct Rule 4.2 provides that, while
representing a client, a lawyer shall not communicate about the subject of
the representation with a party the lawyer knows to be represented by
another lawyer in the matter absent the consent of that party’s lawyer or
unless the lawyer is authorized by law to do so. The respondent
communicated directly with the client, even though she knew at the time
that the client was represented by counsel, as evidenced by the fact that
she copied counsel with the letter. We assume her motive for the
communication was to advise the finance company of what she perceived as
purely dilatory or burdensome action by opposing counsel.
One of the purposes of Prof.Cond.R. 4.2 is to prevent lawyers from
taking advantage of uncounselled laypersons. See, e.g., Matter of Baker,
758 N.E.2d 56, 58 (Ind. 2001) (“recognition of the need to prevent lawyers
from taking advantage of laypersons and to preserve the integrity of the
lawyer-client relationship”); Matter of Syfert, 550 N.E.2d 1306, 1307 (Ind.
1990) (lawyer taking unfair advantage of adverse party). In the case
before us today, the respondent violated the letter of Prof.Cond.R. 4.2,
even though the risk that the communication would unfairly manipulate the
adverse party was not great given that the letter was copied to opposing
counsel and because it merely referred to an event in the case that had
already taken place. It is, however, easy to imagine other contexts where
the need for Prof.Cond.R. 4.2’s protections would be crucial; for example,
where a lawyer seeks to undermine an adverse party’s confidence in the
party’s own lawyer, where a lawyer tries to by-pass opposing counsel and
negotiate a settlement directly with the adverse party, or where a lawyer
attempts to persuade the adverse party to disclose privileged information.
But because the respondent apparently was not trying to gain an unfair
advantage when she contacted the finance company directly or otherwise
wrongfully manipulate the finance company to her or her client’s benefit,
we conclude that a public admonishment adequately addresses her misconduct.
Accordingly, the respondent, Lucille Uttermohlen, is hereby
reprimanded and admonished for the misconduct described herein.
The Clerk of this Court is further directed to provide notice of this
order in accordance with Admis.Disc.R. 23(3)(d) and to Jeffrey R. Smith,
the hearing officer in this matter, 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 of this proceeding are assessed against the respondent.