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Rewriting discipline rules for Indiana attorneys

March 23, 2016

The Indiana Supreme Court Disciplinary Commission would be limited to a one-year period of internal investigation of lawyers under a key change in an overhaul of rules governing attorney discipline.

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“It’s movement forward,” Barnes & Thornburg LLP partner and former commission executive secretary Don Lundberg said of the new rules. “I would have some constructive criticisms. … There may be some lost opportunities.”

Lawyers familiar with the proposed changes unveiled March 1 say the one-year internal investigation limit is likely the most significant change for lawyers. The time limit signals recognition of confidential grievances that in some cases the commission has held for years over attorneys without dismissing the complaint or filing a formal, public disciplinary action.

“Twelve months is enough time to dig,” said Rochester attorney Ted Waggoner, who represents lawyers in attorney discipline cases. “Sometimes it’s easy to let things drag. The lawyer who’s under investigation sure wants to get it over and done with.”

“The grievance investigation period can be stressful for attorneys,” said James Bell, who practices attorney discipline defense at Paganelli Law Group. “In the past, investigations could take a substantial amount of time to complete. The proposed rules seek to expedite investigations, which will be a welcome change.”

Lewis Wagner LLP partner Dina Cox said the one-year limit stood out to her as the most significant change.

“This provision is clear that it is not intended to create any substantive right, but it should certainly cause much faster resolution of complaints against lawyers,” she said.

The time limit in the revised Section 10(h) of Admission and Discipline Rule 23 makes an exception for delays caused by a lawyer’s noncooperation or requests for extensions. It also would allow the commission to request an extension from the court. Waggoner noted, though, the new rule doesn’t allow a lawyer under investigation to respond or object to the commission’s request for more time, which he said “puts the court in the position of trying to discern what’s going on between the commission and the lawyer” without hearing from the lawyer.

Retired Disciplinary Commission staff attorney Dennis McKinney said the one-year limit presents challenges for policing lawyers. In cases where a lawyer receives numerous grievances, he said investigators treat those as one case rather than opening multiple cases, particularly if similar conduct is alleged. “If I’m a respondent lawyer, would I rather deal with a single case or do 12 different cases?

“That’s one of the things in the past that delayed filing the cases,” he said. “The court is concerned that lawyers are sort of left uncertain as to whether or not they’re going to be prosecuted for an allegation of misconduct. … I also understand thousands of clients complain about lawyer misconduct. … I had cases that dragged on for years because we had trouble getting information,” not just from lawyers, but also from agencies such as the Internal Revenue Service.

Lundberg said the time limit meets a laudable goal of trying to move the process forward more quickly, but he’s concerned the short time might disadvantage attorneys.

“It’s important not just for the respondent, but it’s important for the commission to have a full understanding of that case, warts and all,” Lundberg said. He said as a practical matter, it’s difficult for the commission to back away once it’s demanded an attorney reply to a grievance. “The time to work though those issues is in the investigation stage, not when the (verified) complaint is filed. … There has to be a balance as well in allowing lawyers to have solid input into the process before the commission says this is a case it’s going to dismiss or this is a case it’s going to file a complaint on.”

Among the other proposals, lawyers identified these as most significant:

New forms of discipline

At the low and high ends of the disciplinary scale, the proposals carve out new sanctions available for the court to impose on rule-breakers. Section 12.1(a) allows a private administrative admonition for minor misconduct, which would be handled by the executive secretary. Waggoner expects this may be used for advertising rule violations and the like, but it will be discipline reported on the attorney’s record. At the high end, the court will now be allowed to reject a resignation from the bar and insist instead on disbarment by consent, now added under Section 17(c).

Lundberg found the disbarment by consent rule puzzling because justices already have the authority to reject a resignation.

Executive director’s powers

Lundberg said he’d hoped for more clarity in defining the powers of the executive director – the new title under the rules for the commission administrator whose current title is executive secretary. He said Section 10(b), defining the director’s power to draft a grievance on behalf of the commission, misses an opportunity to expressly say the commission must approve drafting that grievance.

“Formally opening up a grievance for a lawyer is the beginning of a process that can be very long, very expensive,” he said. “This is a matter of sufficient gravity that the commission as a body ought to authorize that. … Frankly, it’s confusing. The rule ought to make up its mind where it’s going and it shouldn’t be ambiguous.”

Self-reporting misdemeanors

Attorney Jon Pactor said an amendment to Section 11.1(a)(1) states lawyers must report misdemeanor convictions. Comments on the rule change note this has been a matter of confusion, which puzzles him.

“I don’t know why somebody would think that reporting a conviction of a misdemeanor would be of no consequence to the Disciplinary Commission,” he said. “Every once in a while, the topic comes up in conversation, and some lawyers think they don’t have to report a misdemeanor. This makes it clear.”

Reinstatement streamlined

Attorneys seeking reinstatement after a suspension without automatic reinstatement will have fewer hoops to jump through. After a hearing officer conducts a reinstatement hearing and makes findings and recommendations, the matter will go directly to the court, McKinney said.

Currently, the hearing officer’s report is presented to the commission, which then makes a recommendation to the court. McKinney said staff lawyers will be able to argue against a reinstatement recommendation the commission disagrees with.

Reorganizing, simplifying

discipline-factbox.gifOverall, the changes aim to combine related sections that are now separated under the rule, streamline commission processes and modernize practices by allowing e-filing and electronic disbursements from IOLTA accounts. They also make esoteric changes such as renaming verified complaints for attorney discipline. They now will be called simply disciplinary complaints.

“The structure is more helpful now,” Waggoner said of the proposed changes to Rule 23. “For lawyers that get that dreaded certified letter from the commission, going into these, it will be slightly more reassuring they’re not overlooking relevant parts.”•

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