FOR THE RESPONDENT
FOR THE INDIANA SUPREME COURT DISCIPINARY COMMISSION
Donald R. Lundberg, Executive Secretary
Charles M. Kidd, Staff Attorney
115 West Washington Street, Suite 1060
Indianapolis, IN 46204
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) Case No. 26S00-9809-DI-514
SUSAN J. McCARTY )
May 25, 2000
Susan J. McCarty, an attorney admitted to practice law in this state in
1975, will be suspended from the practice of law for neglecting the legal
affairs of four clients, failing appropriately to handle funds she held on their
behalf, and failing to respond to inquiries of the Disciplinary Commission regarding those
This attorney disciplinary case comes before this Court upon the duly-appointed hearing officers
findings of fact and conclusions of law, prepared following an evidentiary hearing upon
First Amended Verified Complaint for Disciplinary Action filed against the respondent
on May 26, 1999. The hearing officer found misconduct as charged.
Neither the respondent nor the Commission has petitioned this Court for review of
the hearing officers report, and we therefore accept and adopt the findings contained
therein, but reserve final judgment as to misconduct and sanction. Matter of
Kristoff, 611 N.E.2d 116 (Ind. 1993).
Based upon the hearing officers report, we now find the facts to be
On September 24, 1996, a client retained the respondent to seek a legal
separation from the clients husband, paying the respondent $300 to represent her.
Of those funds, $100 was intended to be used for the filing fee
and other $200 was to go toward the respondents attorney fee. The
respondent did not deposit any portion of the money provided by the client
into a client trust or separate dedicated account. Between August 1996 and
April 1999, the respondent did not even maintain such an account.
The client contacted the respondent on more than one occasion to check on
the status of her legal separation. The respondent offered various excuses, including
that the papers had been prepared but destroyed by the typists child.
In fact, the documents were never prepared. On October 2, 1996, the
client terminated the attorney-client relationship and asked for a refund of the $300
she had paid. The respondent told the client she did not have
the money. The clients successor attorney also requested refund of the $300, but
was likewise advised by respondent that she did not have the money.
On October 23, 1996, the client filed a grievance against the respondent with
the Disciplinary Commission. Though required to respond by Ind.Admission and Discipline
Rule 23(10)(a)(2), the respondent failed to do so. In December of 1996,
respondent repaid to the client $200 of the $300 paid.
Indiana Professional Conduct Rule 1.3 requires lawyers to exercise reasonable diligence and promptness
when representing clients. By failing to take any meaningful action on
behalf of her clients, the respondent violated the rule. Professional Conduct Rule
1.16(d) provides, in relevant part, that upon termination of representation, a lawyer shall
take steps to the extent reasonably practicable to protect a clients interests, including
surrendering papers and property to which the client is entitled and refunding any
advance payment of fee that has not been earned. By failing promptly
to refund the clients retainer or filing fee, the respondent violated the rule.
Professional Conduct Rule 1.15(a) requires that lawyers hold the property of
clients separate from their own. Client funds in a lawyers possession in
connection with a proceeding are to be kept in a separate account.
The respondent failed to maintain her client funds is an appropriate account as
required and thus violated the rule.
The hearing officer found that the respondent never prepared the pleadings for the
legal separation sought by the client. The record in this case contains
no indication that such an action was ever filed, yet the respondent never
returned to the client the $100 paid in advance for the filing fee
and, in fact, never even placed the funds in a separate account.
When the client requested return of the funds, the respondent claimed she no
longer had them. Professional Conduct Rule 8.4(b) provides that a lawyer shall
not engage in a criminal act which reflects adversely on the lawyers honesty,
trustworthiness, or fitness as a lawyer in other respects. We find that
the respondents exercise of authorized control over the clients funds violated Prof.Cond.R. 8.4(b).
Finally, by falsely informing the client that the pleading for the separation had
been prepared but destroyed by a child, the respondent engaged in conduct involving
dishonesty, fraud, deceit, and misrepresentation in violation of Prof.Cond.R. 8.4(c). By
failing to respond to the Commissions request for response to the clients grievance,
the respondent violated Prof.Cond.R. 8.1(b), which makes it professional misconduct for a lawyer
knowingly to fail to respond to a lawful demand for information from a
In September of 1996, a client who had been involved in an automobile
accident and who was dissatisfied with the $462 insurance settlement she had received
for it retained the respondent to seek a better settlement and to prevent
the insurer from assigning fault for the accident to the client. The client
did not pay respondent any advance fees, but did forward the uncashed $462
insurance check to her. The respondent advised the client that she was
unlikely to receive a better settlement from the insurer. As a result,
in early 1997, the client terminated the attorney-client relationship and requested that the
respondent return her papers. The respondent did not immediately return them, prompting the
clients successor attorney to contact the respondent by both telephone and letter regarding
the return of the clients file. Additionally, the client also continued to demand
that the respondent return her papers.
Having no success in recovering her file, the client filed a grievance against
the respondent on April 21, 1997. On January 8, 1998, the respondent
replied to the clients grievance and at that time provided the Commission with
the clients papers and the insurance check left with the respondent in 1996.
By failing to take any action on behalf of her client and by
failing promptly to return to the client papers she was entitled to recover
at the termination of representation, the respondent violated Prof.Cond.R. 1.3 and 1.16(d).
Professional Conduct Rule 1.2(a) provides that a lawyer shall abide by a
clients decisions concerning the representation. By failing to take any action at
all in the case, the respondent violated Prof.Cond.R. 1.2(a).
A client hired the respondent to file dissolution of marriage action, orally agreeing
to pay the respondent $525, including a $100 filing fee. At the
outset, the client paid to the respondent $300 toward the fee, with the
balance subsequently paid by December 14, 1997. The respondent did not deposit any
portion of the money into a trust or dedicated account. During that time
respondent did not maintain a trust or dedicated account.
Between December 1997 and April 1998, the client contacted the respondent repeatedly seeking
information about the status of her dissolution action. In February 1998,
the client told the respondent to file the dissolution action or refund her
money. The respondent failed to file a dissolution action on behalf
of the client at any time, but did later refund $200 to the
On March 30, 1998, the client sued the respondent in the Gibson Superior
Court seeking a judgment for the balance of the money she had paid
to respondent. The respondent did not dispute the clients claim, and the
court entered a judgment for $325 against the respondent, the terms of which
required the respondent to pay the client $20 per month until the judgment
was satisfied. The respondent later failed to make regular payments.
On May 20, 1998, the client filed a motion for supplemental proceedings, which
ultimately resulted in the respondents monthly required payment being reduced to $10 per
month. On May 29, 1998, the client filed a grievance, to
which the respondent failed to respond. The respondent paid the client
another $25 on August 3, 1998.
By failing to take any action in the case, the respondent violated Prof.Cond.R.
1.2(a) and 1.3. By failing to refund the advance-paid filing fee to
the client at the termination of representation, the respondent violated Prof.Cond.R. 1.16(d).
By failing to keep the clients funds in a separate account, the respondent
violated Prof.Cond.R. 1.15(a). By failing to respond to the Commissions request
for information, the respondent violated Prof.Cond.R. 8.1(b).
The respondent met with prospective clients on July 29, 1998, regarding obtaining custody
of their grandson. The clients informed the respondent that their grandson was
visiting them at their home in Evansville, Indiana, and did not want to
return to live with his father in Texas. They also told
the respondent that time was of the essence due to school enrollment considerations.
The respondent accepted a retainer of $300 from the clients.
The clients attempted to contact the respondent almost daily. On August 8,
1998, the clients discharged respondent and demanded a refund of the advance payment.
Between her hiring on July 29, 1998 and her discharge on August 8,
1998, respondent did nothing to advance the clients contemplated legal action.
When respondent failed to comply with the clients demand for refund, the clients
sued the respondent in the small claims division of the Vanderburgh Superior Court
and obtained a default judgment against her. They also filed a grievance
against the respondent, to which the respondent never responded. After the Commission
First Amended Verified Complaint for Disciplinary Action on January 4, 1999,
the respondent fully refunded the clients retainer money.
The respondents failure to refund the money the client paid in advance toward
the respondents legal fee violated Prof.Cond.R. 1.16(d). By failing to respond
to the Commissions demand for a response, the respondent violated Prof.Cond.R. 8.1(b).
Having found misconduct in each of the four counts, we now turn to
the issue of proper sanction. In this analysis, among the factors we
examine are those that tend to mitigate the severity of the respondents actions.
The respondent has supplied evidence that various health concerns at times hamper
her ability to provide legal services, but offers nothing to explain or extenuate
each specific instance of misconduct. The Commission has emphasized the fact that
the respondent engaged in several instances of misconduct, and argues that her pattern
of neglect aggravates the severity of her acts. Whether caused by
health or other problems, the fact remains that in several instances the respondent
took no action at all for clients with pressing legal needs. Two
times her inaction and neglect was so complete that clients were forced to
resort to formal legal action to recover unearned fees and filing costs.
That, coupled with the respondents client fund mismanagement and complete disregard for the
Commission during its investigation of these matters, casts doubt on her ability and/or
willingness to discharge the duties and obligations required of lawyers. We
see permitting her to continue in practice as a danger to the public
and the profession, and, accordingly, we find that a period of suspension with
the requirement the respondent petition this Court for reinstatement is appropriate.
Such a sanction under the facts of this case is commensurate with that
imposed in similar cases.
See, e.g., Matter of Ragland, 697 N.E.2d
44 (Ind. 1998) (five counts of neglect resulted in a six-month suspension without
automatic reinstatement); Matter of Barnes, 691 N.E.2d 1225 (Ind. 1998) (six month
suspension for three counts of client neglect and failure to protect former clients
It is, therefore, ordered that the respondent, Susan J. McCarty, be suspended from
the practice of law for a period of not fewer than six (6)
months, beginning July 3, 2000, at the conclusion of which she shall be
eligible for reinstatement to the bar of this state, provided she can satisfy
the requirements of Ind.Admission and Discipline Rule 23(4).
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.