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Disciplinary dividing line = R-E-S-P-E-C-T

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Two recent rulings by the Indiana Supreme Court send a message to any attorney who might be accused of misconduct and face disciplinary proceedings.

That message is for lawyers to remain civil or face a harsher penalty than would have been received had they responded with respect and professionalism during a misconduct hearing.

Some disagreement exists between justices over how repentant an attorney should be when misconduct is found, and the dividing line of respect seems to be what may determine a lawyer’s final punishment.

The difference is highlighted in a pair of decisions issued by the court Feb. 11, which involve a Hamilton County attorney who charged unreasonable fees and a Michigan lawyer who violated this state’s attorney advertising rules.
 

Lundberg Don Lundberg

“It’s really interesting to see where the line is at in these cases, when it comes to how lawyers handle these disciplinary cases in the spirit of zealous advocacy,” said Indianapolis attorney Don Lundberg, the state’s former disciplinary chief who filed the charges against both of these attorneys but has now been outside that prosecutorial role for more than a year.

“From the vantage point of a lawyer going into the disciplinary process as a respondent or representing someone as counsel, you can read them as kind of a blueprint as to what not to do and where the balance may be.”

No civility, harsher sanction

In the case In The Matter of Patrick K. Rocchio, No. 98S00-0911-DI-533, the court imposed a six-month suspension against a Michigan lawyer who had a license in Indiana specifically because of the attorney’s bad behavior during the disciplinary process.

A Notre Dame Law School graduate who primarily practices in Michigan but has had a license in Indiana since 1972, Rocchio was the subject of this state’s disciplinary proceedings as a result of a letter he sent to a potential client about three years ago and his subsequent marketing as an attorney in Indiana.

In 2008, Rocchio sent a letter to a Michigan City resident involved in a serious car crash in Indiana after reading about the accident in the newspaper. The letter offered a free no-obligation counseling conference and outlined Rocchio’s history representing accident victims, including his “successfully representing hundreds of clients in both Michigan and Indiana recovering millions of dollars for deserving clients.”

The Indiana Supreme Courts Disciplinary Commission alleged this was a violation of Indiana Professional Conduct Rule 7.2(c) because neither the letter nor envelope contained the words “advertising material,” and the letter wasn’t filed with the agency as required.

When the disciplinary commission filed its verified complaint in 2009, they added a second charge relating to Rocchio’s status of practice in 2009 when his website stated the various legal matters he could handle with his Indiana law license, even though his license here had been inactive since Aug. 24, 2009. The disciplinary commission accused him of violating Rule 5.5(b)(2) in holding himself out to the public as an Indiana lawyer able to practice law in this state.

While Rocchio argued that the Indiana Supreme Court and disciplinary commission didn’t have jurisdiction over him because he’s a Michigan attorney, the court decided it did because of his active license at the time the letter was sent and he was later promoting his ability to practice here despite having an inactive license.

Former Judge Barbara Brugnaux served as hearing officer in this case and decided Rocchio had engaged in attorney misconduct. She found his lack of disciplinary history to be a mitigating factor, but as aggravating factors she cited his lack of insight and unwillingness to accept responsibility about the misconduct, his dishonesty about denying he’d sent the letter to seek professional employment, and that he’d not conducted himself rationally or civilly during the proceedings and had sent improper e-mail to the hearing officer trying to persuade her to see his point of view.

The Indiana Supreme Court agreed and found Rocchio had committed attorney misconduct because his letter didn’t specify that it was “advertising material” as required and because the letter included a statement likely to “create an unjustified expectation” for clients. Justices disagreed with Rocchio’s arguments that the letter was a “private correspondence” rather than a “public communication” within the meaning of Rule 7.2 precedent in the past decade.

Normally, the misconduct alone would warrant a public reprimand or even a lesser sanction for the written communications violations, the court wrote. But Rocchio’s conduct during the disciplinary process made this a more serious matter, the justices concluded.


Robert Rucker Rucker

Justice Robert Rucker dissented on the length of the suspension, believing a 30-day suspension without automatic reinstatement is more warranted because this longer sanction is disproportionate to the misconduct alleged and inconsistent with the sanctions imposed for similar misconduct in the past.

In focusing on the 180-day suspension, the justices noted that Rocchio’s submitted briefs were full of examples of disrespect and incivility on nearly every page to the court and hearing officer. One example cited in the brief outlines four paragraphs where Rocchio described the state Supreme Court and disciplinary process as “bizarre and foolish” and said it’s “a hideous aberration of justice.” He accused Judge Brugnaux of permitting herself to be used as a rubber stamp, and repeatedly resorted to name calling of those parties involved.

The disciplinary commission began communicating with Rocchio by letter in 2008. Initial communications from the attorney denied any wrongdoing but later apologized for what he described as “minor” misconduct. Once the executive secretary notified him that the matter would be forwarded to the full disciplinary commission for review, Rocchio’s letters and briefs began criticizing and belittling the process.

During testimony at his disciplinary hearing that he attended, Rocchio told the hearing officer that he wouldn’t misrepresent his lawyer letter’s content and trivialize it with the words “advertising material,” which he noted were a product of this state’s “frivolous and antiquated regulatory restrictions upon its licensed attorneys.”

“Respondent is, of course, entitled to contest the charges against him,” the court wrote. “Our obligation is to impose discipline that is sufficient to protect the people in this state from lawyer misconduct and to ensure that misconduct does not recur.”

To be reinstated following the 180 days, Rocchio will need to meet the requirements of Admission and Disciplinary Rule 23(4)(b) in providing clear and convincing evidence that his attitude on misconduct has changed and that he’s above reproach to practice law in Indiana as the rules require.

Whether Rocchio’s discipline in Indiana will impact his Michigan license remains to be seen. Without automatic reinstatement, Rocchio’s suspension will likely last longer than six months.

But even after the Indiana suspension, Rocchio maintains he has done nothing wrong and believes the state’s disciplinary process is a hypocrisy that intimidates Hoosier lawyers with potential sanctions to follow antiquated and non-practical rules.

“What is most unusual or extraordinary about my case is the involvement of a respondent attorney who ‘pushes back’ and is not intimidated by the threat of losing his license,” Rocchio wrote in an e-mail to Indiana Lawyer. “The Disciplinary Commission has become sloppy, lazy, arrogant, all products of being a ‘business’ that is never challenged to adhere to its enabling substantive and procedural rules, as outlined in Rule 23. My story is a story that every Indiana lawyer needs to read and consider how easy it could be for my story to be his or her story in the future.”

After reading the Rocchio ruling, Lundberg described this as a “stunning” decision that goes beyond what the court typically does on the merits of these types of cases.

“They’ve made a message out of an attorney’s disrespect for the process itself,” he said. “I don’t know of a case that more starkly presents how conduct during the course of a case can drive the sanction as an aggravating circumstance. I’m sure my opinion could be discounted, because in disclosure I was a recipient of some of that, but based on my experience this is clearly a message for attorneys how not to handle yourself.”

Civil, but unrepentant

The message being sent by the court isn’t as clear cut in a second ruling issued the same day by the state’s high court. It highlights division between the justices on how they view an attorney who remains “unrepentant” about misconduct but whose behavior is civil.

In the case of In the Matter of Heather McClure O’Farrell, No. 29S00-0902-DI-76, the court delved into the issue of nonrefundable retainers and imposed a public reprimand against the Westfield attorney it found had violated Indiana Professional Conduct Rule 1.5(a) by using those. The disciplinary case involved a practice at the lawyer’s family firm of McClure & O’Farrell, where an “hourly fee contract” or “flat fee contract” was used when representing a party in a family law matter. Both contracts contain a provision for a nonrefundable “engagement fee,” and the disciplinary commission alleged that O’Farrell improperly charged two clients these nonrefundable engagement fees and didn’t refund unearned fees after the representations ended.

The justices examined the various types of fee arrangements and nonrefundability of fees, with O’Farrell arguing that the nonrefundable fees she charged the two clients were justified because the law firm couldn’t represent opposing parties and it required time that the firm could have otherwise devoted to other representations. The court determined the fees at issue are flat fees for work to be performed, and that she had failed to tell her clients those flat fees could be refundable upon the failure to perform the agreed legal services. Instead, she told her clients the fee was nonrefundable even if the client-attorney relationship ended before the completion of the attorney’s representation. Justices were unable to determine how much, if anything, O’Farrell should have refunded to the two clients, so they found the disciplinary commission didn’t meets its burden of proof that she violated Rule 1.16(d).


Randall Shepard Shepard

Johnson Superior Judge Kevin Barton served as hearing officer on this matter and didn’t issue any recommendation on sanction, but noted that the commission had suggested a penalty ranging from public reprimand to short suspension. A three-justice majority found a public reprimand was appropriate, though Chief Justice Randall T. Shepard and Justice Rucker dissented and would have opted for a longer sanction because of her demonstrated unrepentant attitude about the misconduct. The pair believed a period of suspension without automatic reinstatement should have been instituted to protect clients, but the majority disagreed and found a public reprimand was in line with what had been previously imposed in similar actions.

“Although the unrelenting denial by Respondent (through her law firm, which has vigorously represented her) of any misconduct in the face of strong precedent to the contrary might counsel in favor of a greater penalty, we note the mitigating factors of Respondent’s lack of prior disciplinary history and her cooperation with the Commission,” the per curiam opinion says. “We conclude, on balance, that Respondent should receive a public reprimand.”

O’Farrell did not respond to Indiana Lawyer requests for comment on the disciplinary action or the broader message it sends to the legal community, but those interpreting the ruling find it more interesting and less clear cut than the Rocchio ruling.

“There’s a pretty large gulf between what the majority says and what the dissenters are urging, and you have to wonder what that one curious sentence is all about,” Lundberg said. “We’re left wanting a little more than that cryptic use of ‘unrepentant.’ That might just be the normal advocacy we expect when someone thinks it’s time to revisit caselaw, and in a common law society we have evolving precedent and a need for courts to be able to adapt to the times. But that can be a difficult balance, between zealous advocacy and what might be frivolous when nothing new is brought to the table.”•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. 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)

  4. "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.

  5. 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.

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