JOHN P. COALE
Robert W. Hammerle
FOR THE INDIANA SUPREME COURT DISCIPINARY COMMISSION
Donald R. Lundberg, Executive Secretary
Charles M. Kidd, Staff Attorney
115 West Washington Street, Suite 1165
Indianapolis, IN 46204
IN THE MATTER OF ) ) CASE NO. 98S00-9303-DI-309 JOHN P. COALE and ) PHILLIP B. ALLEN )
John Coale and Phil Allen represented the families of nine (9) of the
victims, helping them through this tragedy and winning for them substantial compensation for
their tragic loss.
. . . the settlement sum is reported to be the largest
product liability settlement in U.S. history . . .
Phil Allen worked with Plaintiffs steering committee, filing motions and briefs getting the
case ready for trial. The result was a hundred and eighty million
dollar settlement ($180,000,000), the largest for a personal injury class action suit at
John Coale represented families of those killed in the blaze as well as
several of those injured. His work help [sic] lead to over two
hundred and twenty five million dollars ($225,000,000) in compensation for Plaintiffs in this
At the outset, we note that Respondent Coale argued both at hearing and
again in his petition for review of the hearing officers report that this
Court does not have jurisdiction over him in this case because he is
not a licensed Indiana attorney. We note that this issue was resolved
against other out-of-state respondents in a companion state disciplinary case and related federal
In the Matter of George W. Murgatroyd, III, and Gerald C.
Sterns, 741 N.E.2d 719 (Ind. 2001); Sterns v. Lundberg, 922 F.Supp. 164 (S.D.
Ind. 1996) (complaint alleging lack of personal and subject matter jurisdiction dismissed).
Our analysis of this jurisdictional issue in Murgatroyd we think is applicable
to this case as well:
Notwithstanding the fact that the respondents hold no Indiana law licenses and therefore are not subject to this Court's usual disciplinary sanctions for licensed Indiana attorneys who engage in professional misconduct, any acts which the respondents take in Indiana that constitute the practice of law are subject to our exclusive jurisdiction to regulate professional legal activity in this state. [Footnote omitted] By directing the solicitations to the prospective clients, the respondents communicated to those persons that they were available to act in a representative capacity for them in Indiana courts to address loss or injury associated with the plane crash. As such, they held themselves out to the public as lawyers in this state when neither was admitted to practice here. [Footnote omitted] Those acts constituted professional legal activity in this state subject to our regulatory authority. [Citation omitted]
Murgatroyd at 721.
Upon his petition for review, filed after the hearing officers findings of fact were filed with this Court, Respondent Coale argues that the Commission presented no evidence that the respondents sent any communication to any Indiana citizen. That fact, he argues, precludes this Court from finding a violation of Indianas Rules of Professional Conduct. It is true that the verified complaint, while listing the names of the persons to whom the respondents directed the communications, does not specifically allege that they were residents of Indiana. At the fact-finding stage of these proceedings, however, Respondent Coale never argued that the targets of the solicitations were not specifically proven to be Indiana residents. See footnote In his initial answer to the charges, filed on April 9, 1993, Respondent Coale never argued the recipients residence.See footnote This case proceeded for some 9 years before the issue of the recipients physical location was ever addressed. Upon review of the evidence in this case, the hearing officer concluded that the targets of the solicitations were Indiana residents. Accordingly, we find that the record in this case is sufficient to support the inference that the targets of the respondents solicitations were Indiana residents.See footnote Further, to allow Respondent Coale, after the close of the fact-finding stage of these proceedings, to now argue as a matter of fact that the targets were not demonstrated to be Indiana residents would be to permit introduction of facts with no opportunity for the Commission to supplement the record with evidence of the recipients residence. By failing to advance the residence issue until after the fact-finding stage of these proceedings concluded, Respondent Coale waived the argument upon review.
Respondent Coale further argues that there is nothing in the record to indicate that he was involved in any way in sending the offending materials. The respondents answer, agreed by the Respondent Coale to be evidence in this case, states that the informational materials concerning his law firm, Coale, Allen & Van Susteren, were sent to the persons listed in the verified compliant. He argues that the partner of a small law firm [like Coale, Allen & Van Susteren] may not be disciplined for the conduct of an (unidentified) individual affiliated with the firm. Even assuming, arguendo, that Coale was not directly responsible for the dissemination of the solicitations, the respondent is responsible for another lawyers acts if the respondent ratified the conduct involved or timely knew of conduct taken by a lawyer over whom he had direct supervisory authority and failed to take reasonable remedial action. Prof.Cond.R. 5.1(c). Accord, Prof.Cond.R. 5.3, regarding a lawyers responsibilities regarding nonlawyers employed by the lawyer.
Respondent Coale also asserts that these proceedings violate the respondents right to due process because the court that ultimately will decide this matter is the entity that demanded the pursuit of the disciplinary charges against the respondent[s]. He refers to the fact that on March 9, 1992, Chief Justice Randall Shepard and Justice Brent Dickson held a press conference during which they called for an investigation into the advertising and solicitation practices which they perceived as improper. Because of that press conference, Respondent Coale argues that this Court is not an impartial tribunal with regard to this matter, and thus, pursuant to Canon 3 of the Code of Judicial Conduct, must recuse itself from this matter. See footnote We note that we have already disposed of this argument once in this case. Order Denying Motion to Dismiss, issued June 25, 1993 (stating that the respondents assertion of alleged judicial conduct does not constitute grounds for disqualification). In any event, this Court did not direct the filing of a formal grievance against the respondents here, but merely called for an investigation into solicitation practices following the airplane crash. The Commission, as a distinct entity, is empowered to bring a disciplinary action on its own grievance, and chose to do so in this case. See Admis.Disc.R. 23(10)(a). A hearing officer appointed by this Court has found misconduct following hearing. Due process, as applied to disciplinary proceedings involving attorneys, requires notice of the charges and an opportunity to be heard. In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117, reh. den. 391 U.S. 961, 88 S.Ct. 1833, 20 L.Ed.2d 874; Matter of Stivers, 260 Ind. 120, 292 N.E.2d 804 (1973); Matter of Wireman, 270 Ind. 344, 367 N.E.2d 1368 (1977). The respondents have been afforded both. We find the respondents argument unpersuasive.
Turning now to the substantive allegations of misconduct, Count I of the complaint alleged that the form and content of the respondents solicitations were defective under Indiana rules governing such communications. As a general proposition of law, the practice of targeted mail solicitation of prospective clients by lawyers is permitted. Shapero v. Kentucky Bar Association, 486 U.S. 466, 108 S.Ct. 1916, 100 L.Ed.2d 475 (1988), Murgatroyd, supra. However, the Commission alleged that the solicitations did not comply with Indiana law governing the content of lawyer advertising. Specifically, the Commission alleged that the solicitation letters were not labeled advertising material, as required by Prof.Cond.R. 7.3(c). See footnote It charged that they contained statistical data or other information based on past performance or a prediction of future success, testimonials about or endorsements of lawyer, and a public communication which appeals primarily to a lay persons fear, greed, desire for revenge, or similar emotion, which statements are prohibited by Prof.Cond.R. 7.1(d)(2), (3), and (5).See footnote It charged that the respondents did not file the materials with the Commission at or prior to disseminating them, as required by Prof.Cond.R. 7.3(c).See footnote It further charged that the statements contained false, fraudulent, misleading, deceptive, self-laudatory or unfair statements or claims, in violation of Prof.Cond.R. 7.1(b).See footnote The Commission also charged that the respondents violated the Rules of Professional Conduct in violation of Prof.Cond.R. 8.4(a) and that their conduct was prejudicial to the administration of justice in violation of Prof.Cond.R. 8.4(d). See footnote The hearing officer found that the respondents violated Prof.Cond.R. 7.1(b), 7.1(d)(3), 7.3(c), and 8.4(d).
We agree that the respondents violated the rules, as found by the hearing officer. Specifically, the respondents letters and accompanying materials were self-laudatory and clearly in the nature of endorsements in that they, for example, announced that the respondents helped other victims through [their] tragedy and winning for them substantial compensation for their tragic loss and that they won compensation for other victims that was among the highest awards . . . They also announced in the materials that Respondent Coales work in one case helped to lead to over $225,000,000 in compensation for the Plaintiffs . . . Respondent Coale contends that the statements were not self-laudatory, but merely factual and objective. We disagree in that the respondents message was not merely factual but instead contained subjective, favorable judgments as to the nature of the respondents work and of the merits of the respondents work in those cases.
Finally, we agree with the hearing officers conclusion that the respondents conduct was prejudicial to the administration of justice. The respondents nonconforming solicitations divested the victims and their families the opportunity to make choices regarding legal counsel on objective grounds with the benefit of fair, acceptable information about the legal services they offered.
Having found misconduct, we must now determine an appropriate discipline for it. As we stated in Murgatroyd, since the respondents are not licensed in Indiana, our choices of sanction do not include direct impingement of their law licenses. Murgatroyd, 719 N.E.2d 721. We can, however, regulate the professional conduct of lawyers which occurs within the borders of this state. Id. The respondents gross violation of this states rules governing solicitation warrants their exclusion of practice from this state for a period of time in order to ensure that, should they ever again solicit clients in this state, they will abide by Indianas Rules of Professional Conduct. See, e.g., Matter of Fletcher, 694 N.E.2d 1143 (Ind. 1998) (two year exclusion from pro hac vice admission for violation of Indiana Rules of Professional Conduct while so admitted).
It is, therefore, ordered that the respondents, John P. Coale and Phillip B. Allen, are hereby barred from acts constituting the practice of law in this state (including pro hac vice admission) until further order of this Court. Additionally, they are assessed the costs of this proceeding.
The Clerk of this Court is directed to provide notice of this order in accordance with Admis.Disc.R. 23(3)(d) and to the hearing officer, 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.
(1) A judge shall disqualify himself or herself in a proceeding in which
the judge's impartiality might reasonably be questioned, including but not limited to instances
(a) the judge has a personal bias or prejudice concerning a party or
a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding
[. . .]
(b) A lawyer shall not, on behalf of himself, his partner or
associate or any other lawyer affiliated with him or his firm, use, or
participate in the use of, any form of public communication containing a false,
fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim.
It is professional misconduct for a lawyer to (a) violate or attempt to
violate the rules of professional conduct; . . . (d) engage in conduct
that is prejudicial to the administration of justice.