The Indiana Supreme Court suspended a Logansport attorney for one year because he routinely allowed his secretary to prepare and sign his name on bankruptcy petitions and other court documents, including one petition that she mistakenly filed in the wrong District.
An order published Nov. 10 split the court on the disciplinary action against Cass County attorney James E. Chovanec, who has been practicing law since 1975.
Chovanec, who represented debtors in bankruptcy matters, had his secretary sign his name despite Bankruptcy Rule 9011(a) and (b) that requires an attorney of record to sign most court documents and to make certain certifications about the fillings. At one point, his secretary filed a petition in the Northern District of Indiana rather than the Southern District, and she then signed and filed a motion to dismiss. The bankruptcy judge set a motion hearing to consider the dismissal, but Chovanec failed to appear at that proceeding or two subsequent hearings to show cause why he shouldn’t be held in contempt.
In September 2005, the judge found Chovanec in contempt and fined him $1,000, prohibiting him from filing any more bankruptcies in the Northern District until he petitioned for restatement before the chief judge. The following day, Chovanec filed 10 more bankruptcy petitions in that District and the judge issued another show cause hearing. Chovanec obtained limited reinstatement prior to the scheduled hearing, but the lawyer failed to appear and the bankruptcy judge again found Chovanec in contempt and prohibited him from representing anyone in the Northern District until he paid a $500 fine and successfully petitioned for reinstatement.
The disciplinary action results from violation of four Indiana Professional Conduct Rules: 3.3(a) knowingly making false statements to a tribunal; 3.4(c) knowingly disobeying an obligation under the rules of a tribunal; 5.3(b) failure to make reasonable efforts to ensure that the conduct of a nonlawyer employee over whom the lawyer has direct supervisory authority is compatible with the professional obligations of the lawyer; and 5.3(c) ordering or ratifying the misconduct of nonlawyer assistants or failing to take reasonable remedial action with respect to the misconduct of nonlawyer assistants under the lawyer's supervision.
Both sides reached a conditional agreement for discipline, finding that Chovanec cooperated with the disciplinary process and that this case was “precipitated primarily by Respondent’s lack of training and supervision of his staff rather than an intentional plan to deceive the court.” But in aggravation, the parties looked to Chovanec’s past two disciplinary matters from 1994 and 1998, when he received a 30-day suspension and 12-month suspension respectively.
A three-justice majority determined the appropriate sanction in this action is a one-year suspension without automatic reinstatement, beginning Dec. 16, 2011.
Justices Brent Dickson and Robert Rucker agreed with the 12-month suspension, while Justice Frank Sullivan wrote that he concurred only because of the conditional agreement. If not for that submitted disciplinary action, he would have voted for more severe sanction. Chief Justice Randall Shepard and Justice Steven David dissented, writing that they believe the agreed discipline is insufficient for the misconduct admitted.