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Disciplinary Actions - 9/29/10

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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.

Public reprimand
Kenneth E. Lauter of Morgan County was publicly reprimanded by the Indiana Supreme Court for violating Ind. Prof. Cond. R.1.5 (b) and (c). The court issued a per curiam decision in the case Sept.17, 2010.

The Indiana Supreme Court Disciplinary Commission charged Lauter with violating Ind. Prof. Cond. R. 1.5 (b) and (c) and 1.8(a); however the hearing officer concluded Lauter did not violate any rules and recommended judgment for Lauter. The disciplinary commission sought Supreme Court review of the hearing officer’s findings.

Justices Brent Dickson and Robert Rucker dissented, believing that the disciplinary commission did not prove a charged violation by clear and convincing evidence and that the hearing officer correctly found no violation.

In May 2003, a client hired Lauter and his firm to pursue an employment discrimination claim. The client signed a written attorney services contract that provided for a contingency fee based on the amount recovered – one-third if settled prior to trial, 40 percent otherwise. It also called for an “engagement fee” of $750, which the client paid. The contract also contained a hand-written notation in the bottom margin, initialed by the client, calling for an “additional retainer fee payable if client and firm agree to file federal court litigation.” The client and Lauter agreed to leave the amount of the additional retainer undetermined until Lauter had completed due diligence and decided whether to proceed to federal court. Lauter testified that a typical engagement fee for an attorney taking an employment discrimination case is $5,000, whether or not federal litigation is involved.

The Equal Employment Opportunity Commission found no probable cause in December 2003 so Lauter filed a Freedom of Information Act request for the EEOC file. He received the file in February 2004 and contacted the client the next day to tell her he believed the case had sufficient merit to proceed to federal court. He also testified that he reminded her of the additional retainer that she had initialed and said it would be $4,250 – which was not reduced to writing. He did not advise the client that she might want to consult independent counsel before agreeing to the amount. Three days after their conversation, the client wrote a check to Lauter’s firm for $4,400 that included $150 filing fee and the $4,250 additional retainer. The client’s lawsuit was successfully settled, and the client recovered $75,000 from the defendant May 15, 2006. Lauter’s total fee was $30,000 (the $750 engagement fee, the $4,250 additional retainer, and the $25,000 one-third contingent fee).

“Respondent’s structuring of his fees so clients whose claims are resolved at the administration level pay a lower fee than those whose cases must go to court appears intended to benefit his clients and is certainly not to be discouraged. The problem in this case is that Respondent gave no indication to the client of what the additional retainer would be or how it would be determined,” the court wrote.

Because Lauter and the client agreed at the outset to leave the amount of the additional retainer undetermined until later, the court determined Lauter did not violate Rule 1.8(a). •
 

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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