FOR THE RESPONDENT
Kevin P. McGoff
FOR THE INDIANA SUPREME COURT DISCIPINARY COMMISSION
Donald R. Lundberg, Executive Secretary
IN THE MATTER OF ) ) CASE NO. 16S00-9812-DI-778 KENNETH R. BASS )
The respondent never advised the court that he had accepted payment from the
client to represent her as private counsel. On October 6, 1997, the
court granted the motion to withdraw the plea.
On January 26, 1998, the state of Indiana filed an amended charging information, which matched the facts admitted by the client. Subsequently, the client, with the respondent as her counsel, again entered a plea of guilty. At the sentencing hearing on February 16, 1998, after entering judgment of conviction, the court ordered the client to reimburse the county $250 for legal expenses in the case:
COURT: . . .Shell be on supervised probation after the executed part of the sentence, for the balance of the sentence. Ordered to pay hundred dollar initial probation fee plus fifteen dollars a month, court costs, reimburse the county two hundred and fifty dollars for legal expenses in this case.
REPONDENT: Your Honor, do you need to order, youll have to help me here, a hundred dollars for that public defenders supplemental . . .
RESPONDENT: Thats on charges. . .
COURT: Thats on 98 cases, but she will have to reimburse the county two hundred and fifty.
RESPONDENT: Two fifty. Thank you Judge.
Despite the discussion between the respondent and the judge about the requirement that the client reimburse the county for legal expenses, the respondent again failed to inform the court that he had accepted payment from the client to represent her as private counsel.
After the client completed the executed portion of her sentence, her probation officer asked if she would be able to pay the court-ordered $250 reimbursement for public defender services. The client questioned why she was required to reimburse the county when she had already paid the respondent for his services. The probation officer immediately informed the court of her statements. The judge met with the client and interrogated her under oath to confirm that she had paid the respondent to represent her as private counsel. On May 6, 1998, the judge confronted the respondent with the allegations made by the client, and for the first time, the respondent acknowledged having received money from the client to act as her private counsel.
During the Disciplinary Commissions investigation of those events, the respondent falsely stated that at the February 16, 1998, sentencing hearing he did not hear the judge order the client to repay the county for the respondents pauper counsel fees.
Indiana Professional Conduct Rule 1.5 requires that lawyers fees be reasonable.See footnote The respondent accepted a fee for private representation from his client for matters that he was compensated for by the county. The client eventually was ordered to recompense the county for the respondents public defender services. By charging the client a legal fee for private representation while at the same time being paid by Decatur County to serve as the clients public defender, the respondent exacted from her an unreasonable fee in violation of Ind.Professional Conduct Rule 1.5(a).
Professional Conduct Rule 3.3(a)(1)See footnote provides that it is professional misconduct for a lawyer to make a false statement of material fact to a tribunal. By twice failing to inform the trial court that he had accepted a cash payment from the client for private representation, the respondent violated the rule. Only when confronted by the judge with the clients revelation to her probation officer of payment to the respondent did he concede to the court his private payment arrangement with the client. The respondents deception of the court about the matter also violated Prof.Cond.R. 8.4(c),See footnote which proscribes conduct involving fraud, deceit, dishonesty, and misrepresentation. His failure to disclose his arrangement his with client even while the court imposed, as part of the judgment of conviction against the client, the requirement that she reimburse the county for county legal expenses violated Prof.Cond.R. 8.4(d),See footnote which prohibits conduct that is prejudicial to the administration of justice.
Professional Conduct Rule 8.1(a) provides that a lawyer, in connection with a disciplinary matter, shall not knowingly make a false statement of material fact.See footnote In the course of the Commissions investigation of this matter, the respondent falsely stated that he did not hear the judge order the client to repay the county for the respondents pauper counsel fees. However, at the clients sentencing hearing, the respondent discussed with the judge, on the record, the exact amount the client was ordered to repay to the county, and even repeated the amount ordered by the judge. We therefore find that he knowingly made a false statement of material fact by stating that he did not hear the judges order that the client repay the county.
Having found misconduct, we must now assess the adequacy of the agreed sanction, that being suspension from the practice of law for sixty days. Among the factors this Court examines when considering an appropriate disciplinary sanction are mitigating and aggravating circumstances. Matter of Martenet, 674 N.E.2d 549 (Ind. 1996).
In mitigation, the respondent and the Commission cite the fact that the respondent is the divorced father of two sons, one of whom is in his custody and the second a college sophomore who is dependent upon the respondent to help pay the expenses of his college education. The parties also note that the respondent has served as a public defender for twelve years and maintained his position as a public defender throughout these proceedings. Finally, the parties state that the respondent filed his response to the Commissions Request for Investigation without benefit of counsel and before reviewing the transcript of the February 16, 1998, sentencing hearing. This last assertion is of little mitigating value, however, given that the record shows the respondent was well aware that the $250 county reimbursement had been ordered.
In aggravation, we note that the respondent has been disciplined by this Court before, receiving in 1997 a private reprimand for unrelated misconduct.
The essence of the respondents present misconduct is his knowing exploitation of his own client for personal gain, then his purposeful deception of both the trial court and the Commission to conceal his actions. His acts implicate his capacity for honesty and trustworthiness while serving as an officer of the courts. Because of that, we conclude that a period of suspension is appropriate.
It is, therefore, ordered that the respondent, Kenneth R. Bass, is hereby suspended from the practice of law for a period of sixty (60) days, beginning June 2, 2000. At the conclusion of that period, the respondent shall be automatically reinstated to the practice of law.
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.
(a) A lawyer's fee shall be reasonable. The factors to be considered
in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
A lawyer shall not knowingly make a false statement of material fact or
law to a tribunal;
It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
It is professional misconduct for a lawyer to engage in conduct that is
prejudicial to the administration of justice.
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by
the person to have arisen in the matter, or knowingly fail to respond
to a lawful demand for information from an admissions or disciplinary authority, except
that this Rule does not require disclosure of information otherwise protected by Rule