A Valparaiso attorney who neglected a client’s appeal and failed to refund a fee paid for his unperformed service has been suspended from the practice of law in Indiana for 90 days and cannot be reinstated until he pays full restitution.
The Indiana Supreme Court unanimously suspended attorney Larry W. Rogers on Friday in the disciplinary case In the Matter of Larry W. Rogers, 64S00-1704-DI-251. According to the per curiam opinion, Rogers met with a defendant in March 2015 who had been convicted of murder but not yet sentenced. The two discussed an appeal, and the defendant and/or his family paid Rogers $8,000 as part of his fee.
The defendant was sentenced the following May and his motion to correct error was denied in July. Rogers informed the defendant of the 30-day deadline for filing a notice of appeal and claimed the defendant needed to pay more for the cost of the transcript.
However, Rogers failed to file a notice of appeal, did not notify the defendant of this failure and stopped communicating with the defendant for several months. The defendant eventually fired Rogers and demanded a refund, but he has never received any payment.
The justices agreed with Rogers’ hearing officer that Rogers violated Indiana Professional Conduct Rules 1.3, 1.4(a)(3), 1.4(b) and 1.16(d). Though the court noted Rogers had only recently tarnished his previously “unblemished disciplinary record” and was going through “significant personal hardship” during the defendant’s appeal, it also said it was “deeply concerned about (Rogers’) ongoing and inexplicable failure, now more than three years later, to issue a refund that (Rogers) has consistently acknowledged is owed and that (Rogers) has claimed he is ‘ready, willing and able’ to pay.”
“We also are concerned about the relative lack of attention devoted by Respondent to this disciplinary proceeding and to a contemporaneous proceeding involving Respondent’s noncooperation with another disciplinary investigation, a shortcoming that Respondent’s few pleadings appear to attribute to a heavy caseload,” the court wrote. “We remind Respondent that attorneys have a duty to cooperate with the disciplinary process. We also take this opportunity to remind Respondent (and all attorneys) that although a commitment to helping others is commendable, clients are best served when an attorney has secured his or her own oxygen mask first.”
The justices imposed a 90-day suspension on Rogers, effective Dec. 14. His reinstatement will be conditioned on whether he makes restitution to the defendant and/or his family. If he repays the full $8,000 by March 1, he will be automatically reinstated at the end of 90 days. However, if he fails to pay by that date, he will have to meet the requirements of Admission and Discipline Rule 23(18)(b) prior to resuming his practice.
Further, in a footnote, the court rejected Rogers’ argument that he is entitled to retain a portion of the $8,000 the defendant paid to him. The costs of the proceeding are assessed against him.