The Indiana Supreme Court has ordered a six month suspension for an Indiana lawyer who primarily practices in Michigan, not because of the misconduct committed, but more specifically because of the attorney’s bad behavior during the disciplinary process.
Issuing a nine-page opinion In the Matter of Patrick K. Rocchio, No. 98S00-0911-DI-533, the per curium court determined that the Notre Dame Law School graduate who has been practicing since 1972 but primarily in Michigan, should receive a 180-day suspension. 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 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 Court’s 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.
A second charge involved his status of practice in 2009, when his website stated the various legal matters he could handle with his Indiana law license despite the fact that his license 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.
Even though 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 had jurisdiction because of his active license at the time the letter was sent and as it pertained to his status as a lawyer here.
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 in that his letter didn’t specify that it was “advertising material” as required and that his 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 makes this a more serious matter, they wrote.
“We find that Respondent… engaged in attorney misconduct that, standing alone, would warrant a sanction in the lowest range,” the ruling says. “However, Respondent’s conduct during the disciplinary process demonstrates his inability to recognize his clear violations of this state’s disciplinary rules, his contempt for those rules and this disciplinary process, and his lack of appreciation for the role of this Court’s hearing officer and Disciplinary Commission members and staff. In order to protect the people in this state from further misconduct, these substantial aggravating circumstances require suspending Respondent from the practice of law without automatic reinstatement.”