FOR THE RESPONDENT
FOR THE INDIANA SUPREME COURT DISCIPINARY COMMISSION
Donald R. Lundberg, Executive Secretary
Seth T. Pruden, Staff Attorney
115 West Washington Street, Suite 1060
Indianapolis, IN 46204
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) Case No. 48S00-9802-DI-101
MONTAGUE M. OLIVER, JR. )
June 9, 2000
The Indiana Supreme Court Disciplinary Commission alleged that lawyer Montague M. Oliver, Jr.,
after failing to overturn a default judgment that had been entered against his
clients, filed a second lawsuit against the prevailing party in an attempt to
relitigate the already-adjudicated issues. The trial court found that second lawsuit to
be frivolous and groundless after the respondent failed to appear at a key
hearing. The Commission also alleged that the respondent engaged in conduct prejudicial
to the administration of justice by failing to respond to the Commissions lawful
demands for information in response to the clients ensuing grievance against him.
Upon those allegations, this Court appointed a hearing officer who, following evidentiary hearing,
found that the respondent engaged in professional misconduct. This matter is now
before this Court for final resolution. Our jurisdiction in this case arises
from respondents admission to the bar of this state on December 7, 1982.
Although the respondent sought, and was granted by this Court, an extension of
time during which to file a petition for review of the hearing officers
findings and conclusions, he ultimately failed to file the petition. Where the
hearing officers report is unchallenged, we accept and adopt the findings contained therein,
but reserve final judgment as to misconduct and sanction.
Matter of Lamb,
686 N.E.2d 113 (Ind. 1997).
Within that review framework, we now find that in June 1984, a couple
(the clients) hired a contractor to repair the driveway to their home.
The contractor quoted a price of $1,700 for the job, which the clients
accepted. The contractor ordered concrete from a supplier and installed the a
new driveway, but failed to include the cost of the concrete ($1,219.69) in
his estimate for the repair. A dispute later arose over who should
pay the concrete suppliers bill. By August 15, 1984, the suppliers bill
remained unpaid, prompting the supplier to file an Intention to Hold Mechanics Lien
against the clients property. On August 30, 1984, without the assistance of
counsel, the clients filed suit against the contractor. While that suit pended,
on October 2, 1984, the supplier filed suit to foreclose its mechanics lien
on the clients property. The clients did not hire counsel or respond
to the suit.
On March 14, 1985, the court hearing the clients claim against the contractor
ordered that each should pay half of the bill for the concrete and
entered a judgment accordingly. The clients tendered their half of the bill to
the supplier, but the contractor did not pay any remaining portion. Although
the clients had obtained a judgment against the contractor for the balance of
the suppliers bill, they still did not answer or respond to the suppliers
foreclosure action. On March 15, 1985, the supplier filed a Motion for
Default Judgment which was granted five days later. The judgment, including costs
and attorney fees, totaled $2,329.46. In June 1986, the clients hired
the respondent to defend the action.
The supplier attempted collection of the judgment by proceedings supplemental, with a hearing
on July 22, 1986. On July 23, 1986, the supplier filed a
Motion for Additional Attorney Fees and submitted notice to the Sheriff to execute
on the foreclosure judgment by sale of the clients property. The clients
received notice on July 25, 1986, that their property would be sold at
Sheriffs sale on September 3, 1986. On behalf of the clients, the
respondent filed a Motion to Vacate the default judgment and an Emergency Motion
to Stay the Sheriffs sale. The clients tendered the judgment amount to
the clerk as security and the court postponed the Sheriffs sale, conducting a
hearing on the clients Motion to Vacate the default judgment on November 3,
1986. On November 6, 1986, the court denied the motion to vacate,
and ordered the clerk to release to the supplier, from the funds deposited
by the clients, the balance due on the judgment, thereby satisfying the default
judgment taken against the clients.
On November 14, 1986, the respondent filed a Motion to Reconsider the courts
refusal to vacate the default judgment. This motion was denied. On December
1, 1986, the respondent filed a Motion to Correct Errors directed at the
courts order of November 6. A hearing was held on the motion
on February 11, 1987, and taken under advisement by the court. On
March 2, 1987, the court concluded it could not rule on the matter
due to a conflict of interest. A special judge was then appointed and
conducted a hearing on the motion on December 4, 1987, whereupon the motion
was denied. The respondent did not pursue an appeal of the denial
of the Motion to Correct Errors.
On June 16, 1988, the respondent, on behalf of his clients, filed a
lawsuit against the supplier. The new suit asserted two causes of action: slander
of title and abuse of process. These allegations were based on the
theory that the supplier failed to provide notice of the mechanics lien as
required by I.C. 32-8-3-1. This theory had not been offered in the
clients Motion to Vacate or Motion to Correct Errors. The supplier responded
to the new suit on June 28, 1988, by filing a motion to
dismiss. Accompanying the motion were records from the mechanics lien proceeding that
had concluded in the suppliers favor. The supplier also filed a counterclaim
against the clients asserting that the new action was frivolous and foreclosed by
the previous mechanics lien litigation. A hearing on the motion to dismiss
was set for December 1, 1988. Neither the respondent nor his clients
appeared for the hearing and the motion to dismiss was granted. On
December 7, 1988, the respondent filed a Motion to Reinstate his clients suit,
which the court granted.
The suit proceeded through pretrial conferences, discovery, and a change of venue to
Tipton County. On April 15, 1991, the supplier filed a Motion for
Summary Judgment on its counterclaim. A hearing was scheduled for June 10,
1991, at which respondent and his clients did not appear. That failure
to appear resulted in no argument of any kind being presented to the
trial court in support of the clients claims. The court granted the
motion for summary judgment and awarded the supplier a judgment against the clients,
including attorney fees, for $15,535, finding that the clients suit against the supplier
was frivolous, irreasonable [sic] and groundless. The day after the hearing the
respondent filed a Motion to Reschedule Hearing, claiming he was unable to attend
the hearing and unable to contact the court. The court denied the
On May 10, 1993, the supplier filed a Complaint to Foreclose Judgment Lien
against the clients property. The respondent appeared for the clients and requested
a Change of Venue from the court. A panel of prospective judges
was issued, but the respondent failed timely to strike from the panel, so
the court struck for him and appointed a special judge. The respondent
objected to the courts order appointing the special judge, and despite the fact
that he had failed to strike from the panel created by his motion,
the court granted the request.
The complaint filed by the supplier recited the procedural history in the preceding
cases and made a demand for foreclosure of the judgment lien. The respondent
filed a one-sentence answer denying the facts of the complaint. On December 3,
1993, the supplier filed a Motion for Summary Judgment on its complaint, which
was set for hearing August 23, 1995. On September 7, 1995, the court
granted the suppliers motion and entered a judgment against the clients for the
original judgment of $15,535, plus approximately $6,000 in additional interest which had accrued
over the years the suit pending, and attorney fees, for a total judgment
of $24,926.40. The clients property was ordered to be sold at Sheriffs
sale. The day before the Sheriffs sale, the clients fired respondent and entered
into a settlement with the supplier, paying $20,000.
By letter dated July 17, 1996, the Executive Secretary of the Indiana Disciplinary
Commission demanded that the respondent respond to a grievance submitted by the clients.
Despite an extension of time during which to respond, the respondent failed
to provide an answer. The Commission sent a second demand for a
response on December 12, 1996, to which the respondent also failed to respond.
Pursuant to Ind.Professional Conduct Rule 3.1, 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, which includes a good faith argument
for an extension, modification or reversal of existing law. After the respondents
clients were unsuccessful in their suit against the supplier at the trial court
level, the respondent chose to file another suit against the supplier in an
attempt to relitigate the previously decided case rather than pursue his clients position
through formal appeal of the controlling trial court decision. The respondent
thereafter missed the June 10, 1991 hearing at which he might have put
forth arguments in support of his claims. After he failed to appear
at that hearing, the trial court found that the suit was frivolous and
groundless. Accordingly, we find that the respondent violated Prof.Cond.R. 3.1.
Indiana Professional Conduct Rule 1.3 provides that lawyers shall act with reasonable promptness
and diligence in representing clients. While representing his clients, the respondent failed
to attend key hearings and failed timely to strike from the panel brought
about by his own motion for change of venue. As such, we
find that he failed diligently to attend to his clients legal affairs while
representing them in violation of Prof.Cond.R. 1.3.
Professional Conduct Rule 8.4(d) provides that it is professional misconduct for a lawyer
to engage in conduct that is prejudicial to the administration of justice.
As a result of the respondents frivolous suit against the supplier, years of
delay and needless additional litigation ensued and what began as a judgment against
his clients of approximately $2,300 ballooned to almost $25,000. As such, we
find that his conduct was prejudicial to the administration of justice.
Pursuant to Ind.Admission and Discipline Rule 23(10)(a)(2),
the Commission on two occasions demanded
that the respondent respond to allegations of misconduct contained in the clients grievance.
Though he was granted an extension of time to reply, the respondent
never properly responded to the Commissions requests and therefore violated Prof.Cond.R. 8.1(b), which
provides that a lawyer in connection with a disciplinary matter shall not knowingly
fail to respond to a lawful demand for information from a disciplinary authority.
Having found misconduct, we now turn to the issue of proper sanction. Among
the factors we examine in this assessment is the nature of the respondents
misconduct. The respondents assertion of a frivolous and groundless claim on behalf
of his clients, as well as his failure to respond to the Commissions
demands for information leads us to conclude that a period of suspension is
warranted, with the requirement that the respondent demonstrate his fitness before being readmitted
to practice and again allowed to represent the interest of others.
It is, therefore, ordered that the respondent, Montague M. Oliver, Jr., be suspended
from the practice of law for a period of not fewer than thirty
(30) days, beginning July 14, 2000. At the conclusion of that period
of suspension, the respondent may petition this Court for reinstatement to the bar,
provided he can satisfy the requirements of Admis.Disc.R. 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 resp
That provision provides:
(2) If the Executive Secretary determines that [a grievance] does raise a substantial
question of misconduct, [the Executive Secretary shall] send a copy of the grievance
by certified mail to the attorney against whom the grievance is filed (hereinafter
referred to as "the respondent") and shall demand a written response. The
respondent shall respond within twenty (20) days, or within such additional time as
the Executive Secretary may allow, after the respondent receives a copy of the
grievance. In the event of a dismissal as provided herein, the person
filing the grievance and the respondent shall be given written notice of the
Executive Secretary's determination. In the event of a determination that a substantial
question exists, the matter shall proceed to (b) hereinafter.