IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) Case No. 49S00-9910-DI-607
ANONYMOUS )
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DISCIPLINARY ACTION
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March 14, 2000
Per Curiam
After cosigning with his law partner a pleading filed on behalf of a
client, the respondent failed to see to it that the client’s case was
prosecuted after his law partner, who had almost exclusively handled the case up
to that point, left the firm. For that, we find that the
respondent engaged in attorney misconduct.
This lawyer disciplinary case comes before this Court upon a
Statement of Circumstances
and Conditional Agreement for Discipline in contemplated resolution of disciplinary charges pending against
the respondent. We approve the agreement, which calls for a private
reprimand. For the instruction of the bar, we are issuing this account
of the facts and circumstances of this case while preserving the confidential nature
of the discipline.
The parties agree that, at relevant times, the respondent was a partner in
a law firm. In January 1996, a client entered into a contingent
fee agreement with the law firm to pursue an employment discrimination suit against
the state of Indiana. One of the respondent’s partners signed the agreement
on behalf of the firm. On February 1, 1996, the respondent and
that partner signed a complaint and summonses, which were then filed in federal
court. At the same time, the respondent and his partner propounded discovery
requests on the state. After these initial filings, the respondent had no further
direct involvement with the case and, in fact, never even met the client
or spoke directly to her. Once the case was filed, all notices
of service on filings from either the state or the federal court bore
both the respondent and the partner’s names and were sent to the firm.
Once received, they were routed to the partner’s attention.
On October 7, 1996, the presiding federal judge issued a show cause order
to the respondent, directing him to show cause why the case should not
be dismissed based on the firm’s failure to comply with an agreed case
management plan. Hearing nothing from the respondent or his firm, the federal
court dismissed the case on October 30, 1996, and an order of dismissal
was served on the firm thereafter.
The partner left the firm in April of 1997, but the case file
remained at the firm. At no time during the representation or after
the case’s dismissal did the respondent notify the client of the status of
her case until after the client contacted the firm in December of 1998.
When the client did contact the firm, she spoke with a member
of the staff, who, in turn, discussed the matter with the respondent.
The respondent then wrote to the client, advising her of the dismissal of
her case. Before that, the respondent had taken no action for the
client’s benefit since the filing of the complaint and summonses, despite his appearance
in the case.
The respondent and the Commission agree that the respondent violated Ind.Professional Conduct Rule
5.1(c)(2), which provides:
A lawyer shall be responsible for another lawyer’s violation of the Rules of
Professional Conduct if the lawyer is a partner in a law firm in
which the other lawyer practices, or has direct supervisory authority over the other
lawyer, and knows of the conduct at a time when its consequences can
be avoided or mitigated but fails to take reasonable remedial action.
We find that the essence of the respondent’s misconduct in this case was
his failure to ensure that the client’s case was adequately prosecuted despite his
having appeared in the case by signing the pleadings and thereby holding himself
out as one representing the client in her case. Despite his signature,
his actual involvement in the case was so minimal that, after the partner
left the firm, the respondent was unaware of the case’s status until some
18 months later, when the client herself took steps to learn of the
case’s status. Only then did the respondent finally learn that the case
had been dismissed some two years before. His failure to take reasonable
remedial action arose not so much due to any wrongful lack of oversight
of his partner and thus imputed responsibility for his partner’s actions, but instead
because he simply knew nothing of the status of the case. Because
he lacked that knowledge, he was unable to avoid (or mitigate the consequences
of) the federal court’s dismissal. It was the respondent’s appearance in
the case by his signature on the pleadings that activated his duty to
ensure that the client’s case was appropriately handled, and his failure to see
to it that the case was sufficiently prosecuted constitutes his misconduct.
See footnote
When a lawyer who is a partner in a law firm jointly appears
in a case or other legal matter with another partner of the firm,
each is responsible for the prosecution of the case or legal matter and
should take steps to ensure that the matter does not languish in the
hands of the other. Although a lawyer who directs, knows of, or
ratifies the misconduct of a lawyer with whom he associates may be held
responsible for that misconduct,
See footnote
no such direction, knowledge or ratification is demonstrated by
the agreed facts of this case.
For his misconduct, we find that the respondent should be privately reprimanded.
An order and letter of private reprimand shall be issued along with
this opinion.
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 Federal District Courts in this state, and the clerk of the
United States Bankruptcy Court 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 respondent.
Footnote:
Although not charged as such, we see the respondent’s conduct a violation of
Prof.Cond.R. 1.1, which provides that a lawyer shall provide competent representation to a
client, Prof.Cond.R. 1.2, which provides that a lawyer shall abide by a client’s
decisions concerning the objectives of representation, Prof.Cond.R. 1.3, which provides that a lawyer
shall act with reasonable diligence and promptness while representing a client, or Prof.Cond.R.
1.4, which provides that a lawyer shall keep a client reasonably informed about
the status of a matter, promptly comply with reasonable requests for information, and
explain matters to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation. However, since violations of these provisions have
not been charged, we are precluded from finding that they occurred.
Footnote:
See generally Prof.Cond.R. 5.1(responsibilities of a partner or supervisory lawyer);
Prof.Cond.R. 5.2 (responsibilities of a subordinate lawyer).