FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
Forrest Bowman, Jr. Donald R. Lundberg, Executive Secretary
11 S. Meridian Street Seth T. Pruden, Staff Attorney
Indianapolis, IN 46204 115 West Washington St., Ste. 1060
Indianapolis, Indiana 46204
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) Case No. 82S00-9811-DI-723
MARY JANE HUMPHREY
March 10, 2000
After failing to perfect service of a complaint she filed on behalf of
a client (an error which ultimately proved fatal to the cause of action),
attorney Mary Jane Humphrey attempted improperly to resurrect the matter by refiling it
on two occasions, all the while failing to advise her client of the
reason for the cases demise or to provide her client with other meaningful
information about the representation. For that, along with neglect of two other
legal matters, we find today that Humphrey, the respondent in this case, should
be suspended from the practice of law.
This matter comes before us on the respondent and the Disciplinary Commissions
of Circumstances and Conditional Agreement for Discipline, tendered in contemplated resolution of this
case pursuant to Ind.Admission and Discipline Rule 23(11.1)(c). Our jurisdiction in this
case is derived from the respondents admission to the Bar of this State
on October 10, 1980.
Under Count I of the verified complaint for disciplinary action giving rise to
this action, the parties agree that a client retained respondent in July 1992
to pursue a sexual harassment claim against the clients employer. The respondent
filed a claim against the employer in December 1993, which the employer countered
with a motion to dismiss, asserting insufficient service of process of the claim.
The respondent subsequently filed three separate motions requesting extensions of time to
respond before filing a response to the motion to dismiss on August 2,
On January 30, 1995, after expiration of the statute of limitations, the court
granted the defendants motion to dismiss, finding that the respondent had failed to
comply with Fed.R.Civ.P. 4(m), which generally requires a showing of proof of service
within 120 days of filing a claim. The respondent subsequently refiled the
same or a substantially similar complaint in the same court. After
receiving a written demand from the employer to dismiss the second complaint, the
respondent falsely informed the employer that the client had authorized dismissal of the
complaint and filed the appropriate documents with the court, which resulted in the
second cases dismissal on April 26, 1995.
Throughout the spring and summer of 1995, the client attempted to contact respondent
about the status of her case. Her communications with the client
about the status of her case at that time were of a general
nature and such that the details of the case were either not clearly
explained or were not understood by the client.
The respondent told her
that the first case had been dismissed, but failed to inform the client
of the underlying reason of her failure to perfect service.
In October 1995, the respondent again tried to revive her clients claim by
filing a third suit, again essentially identical to the first two, in Vanderburgh
Circuit Court. One crucial difference was that the third complaint added
a count of fraud against the employer, in an apparent effort to revive
the case beyond the original statute of limitations. Based on diversity considerations,
the case was later removed to federal district court, where it was met
with a motion to dismiss on the same grounds as asserted against the
first two claims. Over the next two months, the respondent filed five motions
for extension of time to respond to the motion to dismiss before finally
responding on April 12, 1996. The court dismissed the third complaint on
May 22, 1996.
By failing to defend in a timely fashion the motion to dismiss the
first complaint she filed on behalf of her client, the respondent violated Ind.Professional
Conduct Rule 1.3, which requires a lawyer to act with reasonable diligence and
promptness while representing a client.
By failing to keep her client
informed about the status of her case and by failing to advise the
client of dismissals of her claims, the respondent violated Prof.Cond.R. 1.4(a)
which require lawyers to keep their clients reasonably informed about pending legal matters.
The respondent violated Prof.Cond.R. 1.7(b)
by continuing to represent the client
after the first complaint was dismissed for failure to perfect service: the
respondents failure to do so resulted in a loss of an avenue of
legal redress for her client, yet the respondent failed to inform her client
of the potential grounds for a legal malpractice claim and failed to advise
the client to seek the advice of independent counsel. The respondents continued representation
of the client under those circumstances also violated Prof.Cond.R. 1.16(a)(1), which requires lawyers
to terminate representation if the representation will result in a violation of the
Rules of Professional Conduct or other law.
By filing the same
or substantially similar complaints after the first complaint was dismissed, the respondent violated
Prof.Cond.R. 3.1, which prohibits lawyers from initiating or defending frivolous proceedings or issues
Finally, the respondent violated Prof.Cond.R. 8.4(c) for falsely representing
to the employers counsel that she was authorized to dismiss the second lawsuit
when that was untrue.
Under Count II, the parties agree that after being appointed an estates personal
representative and entering an appearance as the attorney of record in February 1995,
the respondent failed to file the statutorily-required inventory for the estate within two
months of her appointment, as provided by law.
The respondent thereafter
failed to pay the inheritance tax due on the estate, which made the
estate ineligible for a 5% reduction in taxes due, and as of November
1998 had not filed a Verified Account or Petition for Final Settlement which
kept the estate open on courts docket.
We find that by failing timely to file the required inventory, pay the
taxes due, and file a final accounting and request for settlement, the respondent
violated Prof.Cond.R. 1.3.
As to Count III, the parties agree that in late 1992, the respondent
was hired on a contingent fee basis to represent 27 students on a
claim against a business college. Each client paid the respondent $10 for
expenses. The respondent filed a complaint in March 1994. The school
failed to file an appearance or to respond in any way to the
complaint. Although the respondent could have sought a default judgment, the matter
instead languished until July 1996, when the court ordered the respondent to show
cause why the action should not be dismissed pursuant to Ind.Trial Rule 41(E)
for want of prosecution. The respondent subsequently moved to continue the
T.R. 41(E) hearing a total of nine times from July 1996 to July
1997. Finally, in September 1997, the respondent filed a motion for default
judgment, and then moved the court to continue hearing on that motion the
matter a total of nine times, from September 1997 to June 1998.
In July 1998, after a hearing on the motion, the trial court
entered a default judgment against the school, some four years after the complaint
was filed. During one three year period that the case was
pending, one of the students attempted repeatedly by telephone to contact the respondent
to determine the status of the case. The respondent failed to return
all but one of those calls and never informed the client that she
had continued the case eighteen times.
By her actions in Count III, we find that the respondent violated Prof.Cond.R.
1.3 by failing to prosecute her clients case for nearly two years, and
for failing to obtain a default judgment for approximately two years thereafter.
Her failure to provide information about the status of the pending case in
response to repeated phone calls from a client violated Prof.Cond.R. 1.4(a).
Having found misconduct, this Court must now determine the proper discipline.
In so doing, we examine the surrounding circumstances, the respondents state of mind,
the duty violated, actual or potential injury to the client, the duty of
this Court to preserve the integrity of the profession, the risk to the
public, and any mitigating or aggravating factors. Matter of Christoff and Holmes,
690 N.E.2d 1135 (Ind. 1997); Matter of Gemmer, 566 N.E.2d 528 (Ind. 1991);
Matter of Kern, 555 N.E.2d 479 (Ind. 1990).
In mitigation, the parties have noted that the respondent has no previous disciplinary
history and has expressed regret at her handling of these matters. They
also point out that, during relevant times, the respondent was serving as an
attorney for the Vanderburgh County Office of Family and Children and agree that
her regular caseload of over 100 matters at any given time in that
position was a contributing factor in her neglect of the cases subject to
The respondents inattention to matters entrusted to her prolonged litigation and in two
instances deprived her clients of particular benefits or legal redress. We do
note that under Count III, the respondent did hold periodic meetings to communicate
progress with her clients. Those clients whose addresses were known to the
respondent were notified of such meetings, but all of the clients did not
attend. However, her communication with clients was sorely lacking in other instances
when one-on-one contact was necessary. Most troubling of all was her
handling of the discrimination action under Count I because aspects of it indicate
a distinct lack of candor with regard to her client, the opposing party,
and, with the serial filing of essentially the same complaint, the courts.
The parties offer resolution of this matter by suspending the respondent from the
practice of law for a period of 90 days. In light of
the pattern of misconduct presented, we agree that a period of suspension is
warranted, and thus approve the parties agreement.
It is, therefore, ordered that the respondent be suspended for a period of
ninety (90) days, beginning April 14, 2000, at the conclusion of which the
respondent shall be automatically reinstated to the bar of this State.
The clerk of this Court is directed to provide notice of this order
in accordance with Admis.Disc.R.
23(3)(d) and to provide the clerk of the United
States Court of Appeals for the Seventh Circuit, the clerk of each of
the United States District Courts in this state, and the clerks of the
United States Bankruptcy Courts in this state with the last known address of
respondent as reflected in the records of the clerk.
Costs of this proceeding are assessed against the respondent.
The respondent claims that she provided her client with a copy
of the dismissal order. The client contends that she never received that
document. In any event, the respondent did not communicate a full understanding
of the consequences of any dismissal to her client.
Indiana Professional Conduct Rule 1.3 requires that a lawyer shall act with
reasonable diligence and promptness in representing a client.
Professional Conduct Rule 1.4(a) provides that a lawyer shall keep a client
reasonably informed about the status of a matter and promptly comply with reasonable
requests for information.
Professional Conduct Rule 1.4(b) requires a lawyer to explain a matter to
the extent reasonably necessary to permit the client to make informed decisions regarding
Footnote: Professional Conduct Rule 1.7(b) states that a lawyer shall not represent a
client if the representation of that client may be materially limited by the
lawyers responsibilities to another client or to a third person, or by the
lawyers own interests.
Footnote: Professional Conduct Rule 1.16(a) provides, in relevant part, that (subject to the
exceptions in Prof.Cond.R. 1.16(c)) a lawyer shall not represent a client or, where
representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the Rules of Professional Conduct
or other law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to
represent the client; or
(3) the lawyer is discharged.
Footnote: Professional Conduct Rule 3.1 states that lawyers shall not bring or defend
a proceeding, or assert or controvert an issue therein, unless there is a
basis for doing so that is not frivolous
Footnote: Professional Conduct Rule 8.4 (c) makes it professional misconduct to engage in
conduct involving dishonesty, fraud, deceit or misrepresentation.
Footnote: I.C. 29-1-12-1.