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Disciplinary Actions -10/13/10

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Indiana Lawyer Disciplinary Actions

The Indiana Supreme Court Disciplinary Commission brings charges against attorneys who have violated the state’s rules for admission to the bar and Rules of Professional Conduct. The Indiana Commission on Judicial Qualifications brings charges against judges, judicial officers, or judicial candidates for misconduct. Details of attorneys’ and judges’ actions for which they are being disciplined by the Supreme Court will be included unless they are not a matter of public record under the court’s rules.

Suspension
Charles W. Beacham of Vanderburgh County is suspended from the practice of law for a period of not less than 180 days, without automatic reinstatement, beginning Nov. 12, 2010, according to a Sept. 30, 2010, Supreme Court order.

He violated Ind. Prof. Cond. R. 1.4(a) and (b), and 1.5(a).

Beacham was admitted to practice law in Indiana in 2003 and in Illinois in 1969. He is not a member of the Florida bar, although that is not necessary to appear pro hac vice in the federal courts in Florida.

In 2001, a Florida resident – AB – retained Beacham to represent her in pursuing various claims against her employer, the U.S. Postal Service. The case was settled by agreement. AB referred another Florida postal service employee, CD, to Beacham, who filed a complaint for CD in a Florida District Court. On May 11, 2004, the District Court entered summary judgment against CD on all claims, ruling among other things that certain claims were preempted by federal remedial statutes.

AB again retained Beacham Dec. 17, 2003, to represent her in pursuing new claims against the Postal Service. The written fee agreement required a “nonrefundable retainer of $5,000” and provided that Beacham’s fee would be the greater of the hourly rate of $200 per hour or 25 percent of the net recovery. The fee agreement stated that AB shall be billed on a monthly basis and that she was entitled to receive a written itemized bill on a regular basis at least every 60 days. Beacham and AB orally agreed that notwithstanding the actual monthly billing, AB would pay Beacham $1,000 per month, which AB did for 30 months from January 2004 until June 2006.

AB’s case was a fairly routine employment-discrimination case. After exhausting various administrative remedies, Beacham filed a 38-page complaint Nov. 22, 2004, on AB’s behalf in a Florida District Court. The claims included the type found preempted in CD’s case. The work done by Beacham in litigating these claims provided no value to AB. Beacham’s work product was of poor quality and rambling, which tends to increase hourly fees. The District Court eventually dismissed all but one of AB’s claims.

AB began requesting interim billing statements in October 2004. Beacham sent no interim statements until April 2006, by which time he asserted an hourly fee total of $220,684. AB was shocked that the attorney fees were so high. The parties’ relationship deteriorated, and Beacham withdrew from representation. Beacham sent a final bill showing an hourly fee total of $233,484. Eventually, at the recommendation of new counsel, AB settled the case for $20,000. Beacham filed a complaint against AB in Indiana to collect unpaid attorney fees. AB did not appear at the trial, and the court entered default judgment for Beacham for $195,000. AB has since filed for bankruptcy relief.

Aggravating facts include that Beacham maintains he breached no obligation to keep AB informed of the status of the escalating fees; by filing the fee-collection action in Indiana, Beacham intended to make AB’s defense as difficult as possible; and Beacham continues to insist that he is entitled to the full fee he billed.

Steven F. Fillenwarth of Marion County is suspended from the practice of law in Indiana for 90 days beginning Nov. 12, 2010, according to a Sept. 30, 2010, Supreme Court order.

He violated Ind. Prof. Cond. R. 1.6(a); 1.7(a)(2); and 1.16(a).

Fillenwarth’s motion for oral argument was denied.

All justices concurred, except Justice Boehm, who dissented and noted he would have imposed a public reprimand.

Fillenwarth represented a client in several legal matters, including negotiating a prenuptial agreement with the client’s wife in 2004. Fillenwarth then represented the client in filing a marriage dissolution action Feb. 6, 2007.

The client wasn’t aware that Fillenwarth and the client’s wife exchanged frequent e-mails from Jan. 9 through Feb. 26, 2007. The e-mails included discussions of the divorce action and Fillenwarth’s romantic interest in the client’s wife. When the client became aware of the e-mails, he immediately discharged Fillenwarth as his attorney. He then withdrew from representing the client.

Fillenwarth testified that the client had asked him to work directly with his wife so the divorce could be concluded as quickly as possible. The hearing officer, however, noted that the client testified that he gave Fillenwarth no such instruction. This finding is supported by the “totality of circumstances,” including the content of the e-mails and the client’s immediate discharge of Fillenwarth after discovering them. Also, the extent and nature of the e-mails went well beyond the scope of the client’s alleged instructions.

Aggravating factors were Fillenwarth’s selfish motivation, his denial of any misconduct, and his lack of remorse. Mitigating factors were Fillenwarth’s lack of disciplinary history, his cooperation with the disciplinary commission, the unlikelihood that he will engage in any future misconduct, and his service to his community and country, including his 20 years of service in the Army Reserve in the Judge Advocate General Corps.

Public reprimand
Steven C. Litz of Morgan County has been publicly reprimanded, according to a Sept. 30, 2010, Supreme Court order approving statement of circumstances and conditional agreement for discipline.

He violated Ind. Prof. Cond. R. 1.6(a) and 1.9(c)(2).

Litz asked his adult children to dispose of 12 to 14 “banker boxes” that contained files of clients and former clients. At his request, the children took the boxes to a site with recycling bins. Finding the bins full, they placed the boxes on the ground by the bins. They did not inform Litz that they did not put the boxes inside the bins. The wind later blew the tops off some of the boxes and scattered some of the client files into public view. After being notified of what occurred, Litz and his children retrieved the documents and boxes.

An aggravating factor is Litz’s two prior public reprimands: Matter of Litz, 894 N.E.2d 983 (Ind. 2008), and Matter of Litz, 721 N.E.2d 258 (Ind. 1999). However, the current misconduct is different from and unrelated to his past misconduct, the court noted.

Mitigating factors were Litz cooperated with the discipline commission, no client information appears to have been lost or disclosed, and Litz has a history of pro bono service.

“This case highlights the critical importance of an attorney’s responsibility to safeguard sensitive client information. Even if Respondent’s files had been placed inside the recycling bins, the information would have been available for opportunists to retrieve, with potentially devastating consequences to the clients. Shredding client files an attorney no longer needs prior to disposal is one alternative for providing far safer protection of client information,” the court wrote.

Kevin C. C. Wild of Marion County has been publicly reprimanded, according to a Sept. 30, 2010, Supreme Court order approving statement of circumstances and conditional agreement for discipline. The court noted that had this matter been submitted without an agreement, it would have likely resulted in more severe discipline.

He violated Ind. Prof. Cond. R. 1.3, and 1.4(a)(3) and (b).

While a part-time employee of the Marion County Public Defender Agency, Wild was hired to represent a client in an appeal of criminal convictions and sentence. After the Court of Appeals affirmed the convictions and sentence, Wild did not send a letter notifying the client until after the time for filing a petition for transfer has passed. In his letter, he stated that any attempt to seek transfer likely would be unsuccessful, and he didn’t mention that the deadline had expired. The client was eventually allowed to file a belated petition to transfer, which was denied.

Mitigating factors are Wild has no disciplinary history, he was cooperative with the disciplinary commission, he is remorseful, and he changed his office procedures to address the problem that led to the oversight in this case.•
 

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  1. If real money was spent on this study, what a shame. And if some air-head professor tries to use this to advance a career, pity the poor student. I am approaching a time that i (and others around me) should be vigilant. I don't think I'm anywhere near there yet, but seeing the subject I was looking forward to something I might use to look for some benchmarks. When finally finding my way to the hidden questionnaire all I could say to myself was...what a joke. Those are open and obvious signs of any impaired lawyer (or non-lawyer, for that matter), And if one needs a checklist to discern those tell-tale signs of impairment at any age, one shouldn't be practicing law. Another reason I don't regret dropping my ABA membership some number of years ago.

  2. The case should have been spiked. Give the kid a break. He can serve and maybe die for Uncle Sam and can't have a drink? Wow. And they won't even let him defend himself. What a gross lack of prosecutorial oversight and judgment. WOW

  3. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  4. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  5. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

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