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

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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