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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. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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