FOR THE RESPONDENT
C. Kenneth Wilber, pro se
FOR THE INDIANA SUPREME COURT DISCIPINARY COMMISSION
Donald R. Lundberg, Executive Secretary
D. J. Mote, Staff Attorney
115 West Washington Street, Suite 1060
Indianapolis, IN 46204
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) CASE NO. 71S00-9901-DI-3
C. KENNETH WILBER )
June 13, 2000
Attorney C. Kenneth Wilber agreed to attempt to recover a debt for a
client, but then took no action, failed to respond to his clients repeated
telephone calls, and neglected promptly to refund to the client unearned legal fees
after the client settled the matter himself. We find that Wilbers
actions violate the Rules of Professional Conduct for Attorneys at Law.
For those violations, Respondent Wilber and the Disciplinary Commission agree that the respondent
should be publicly reprimanded. That agreement is now before us for
Our jurisdiction in this case is a result of respondents admission to the
bar of this state on July 12, 1989.
The respondent and the Commission agree that in the spring of 1997, a
client met with the respondent to discuss initiation of foreclosure proceedings on property
which secured a $10,000 loan the client had made to an estate.
The respondent agreed to represent the client, and on March 19, 1997, he
accepted a $500 retainer from the client. The respondent was to draw
his fee of $125 per hour from the retainer. They agreed that
the respondent would draft a demand letter to the personal representative of the
estate, with a copy to the client.
After the March 19, 1997, meeting, the client did not hear from the
respondent. He placed several telephone calls to respondents office, but received no
response. By late May 1997, the client, unable to reach respondent, directly
contacted the attorney for the estate. The estates attorney informed the client
that neither he nor the personal representative of the estate had received any
communication from respondent. The client negotiated with the attorney for the estate,
without the assistance of respondent, and obtained payment of the loan in early
After receiving the loan repayment, the client continued his efforts to contact the
respondent to request a refund of any unearned legal fees. By the
fall of 1997, the client had heard nothing from the respondent. He
filed a grievance against the respondent on October 3, 1997, with the Disciplinary
Commission. On October 28, 1997, the respondent tendered a check for $125
to the client as a refund of unearned attorney fees. The respondent had
rendered three hours of legal services to the client.
Indiana Professional Conduct Rule 1.3 requires that lawyers act with reasonable diligence and
promptness when representing clients. We find that the respondent violated Ind.Professional Conduct
Rule 1.3 by failing to take any significant action in pursuit of his
clients claim. Despite charging the client for three hours of legal services,
the respondent never contacted the estates attorney or personal representative or took any
other meaningful action to advance his clients claim. Later, after the respondent
learned that the client had settled the claim, he failed to ensure that
the client promptly received refund of unearned fees.
Indiana Professional Conduct Rule 1.4(a) requires lawyers to keep clients reasonably informed about
the status of matters and promptly to comply with reasonable requests for information.
The respondent, over a period of approximately seven months, failed to
return the clients telephone calls or otherwise keep the client advised of the
status of his claim. That neglect violates Prof.Cond.R. 1.4(a).
Professional Conduct Rule 1.16(d) provides that, upon termination of representation, a lawyer shall
take steps to the extent reasonably practicable to protect his clients interests, including
refunding any advance payment of fee that has not been earned. By failing
timely to refund the $125 unearned retainer paid him by the client, the
respondent violated Prof.Cond.R. 1.16(d).
Having found misconduct, we must now determine an appropriate discipline for it.
The parties have agreed that a public reprimand is appropriate for the respondents
neglect. As an extenuating factor, they note that, after the respondent learned
that the clients had settled his claim, he instructed his staff to send
a letter and refund check for $125 to the client. Although
the letter was drafted, it was inadvertently placed in a file and not
sent to the client. The respondent did not discover that the letter
and check had not been mailed until he received notice of the grievance
from the Commission. Despite the mitigating factor, the respondents overall effort on behalf of
his client was substandard. He failed to communicate with his client while
at the same time taking little or no action on what was a
relatively simple matter. Had the respondent replied to the clients telephone calls,
he may have discovered earlier that the clients refund check languished in the
file. Instead, the clients funds remained forgotten in the file.
Isolated instances of client neglect, without attendant misconduct or aggravating factors, generally warrant
admonishment. See, e.g.,
Matter of Halcarz, 712 N.E.2d 964 (Ind. 1999) (public
reprimand where counsel failed to file an appellate brief and failed to notify
the client that the appeal had been dismissed). Here, given the isolated
nature of the respondents neglect and the fact that the respondent at least
attempted promptly to return the unearned fee, we approved the agreement tendered by
It is, therefore ordered, that C. Kenneth Wilber, Jr., is hereby admonished and
reprimanded for the professional misconduct found herein.
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.