FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
DISCIPLINARY COMMISSION Duge Butler, Jr. Donald R. Lundberg, Executive Secretary Attorney at Law Robert C. Shook, Staff Attorney 155 East Market Street 115 West Washington Street, Ste. 1060 Suite 400 Indianapolis, IN 46204 Indianapolis, IN 46204 _____________________________________________________________________________
SUPREME COURT OF INDIANA
IN THE MATTER OF ) )Case No. 29S00-9712-DI-686
client out of funds held by respondent; Prof.Cond.R. 1.3See footnote
,by failing to act with reasonable
diligence and promptness in representing the client; Prof.Cond.R. 1. 4(a)See footnote
, by failing to keep
the client reasonably informed and failing to comply promptly with the client's reasonable
requests for information; and Prof.Cond.R. 1.15(b)See footnote
, by failing to deliver promptly to a
creditor funds of the client pursuant to the client's instructions. We conclude that the
foregoing agreed facts clearly and convincingly establish that the respondent engaged in the
misconduct and violated the Rules of Professional Conduct as charged.
As to Count II, the parties agree and we find that in November, 1989, a client hired the respondent to represent the client in an eviction and collection proceeding against the
client's tenants. In a particular case, the respondent filed a notice of eviction on behalf of the client on August 21, 1990. The respondent obtained possession of the property for the client and an agreed judgment of $608 plus costs of $30. The judgment was to be satisfied with
a payment of $308 on September 14, 1990 and $330 on September 28, 1990. In January of
1991, the client terminated respondent's services and sometime later hired another law firm.
After his discharge, the respondent failed to withdraw his appearance as attorney of record for the client in various matters pending in court, including the matter noted above. The judgment in the matter outlined above was paid on October 12, 1993. Because the respondent's appearance was still on file for the client, the clerk of the court sent the proceeds of the judgment to the respondent. The respondent failed to notify the client of the receipt of these funds. Around October 13, 1993, through its new attorney, the client learned that the above judgment had been paid. Upon further inquiry and a meeting with the respondent, the client and its successor counsel also learned that the respondent still had in his possession 45 to 50 files from cases in which he had previously represented the client. Further, the client learned that the respondent was still attorney of record for many of these cases.
The respondent offered to remit 40% of the retained judgment to the client and to retain the remaining 60% as his fee. The client, however, refused. The client requested a list of all files still in the respondent's possession and a statement for services rendered. The respondent and the client's successor counsel exchanged several letters, trying to resolve the dispute. In this exchange of letters, the respondent provided a partial list of accounts he had filed on behalf of the client but not a complete one.
Count II charges that, by his aforesaid conduct, the respondent violated Prof.Cond.R.
by failing to withdraw as attorney of record after he had been discharged; Prof.
Cond.R. 1.16(d)See footnote
by failing to surrender papers and property to which the client was entitled;
and Prof.Cond.R. 1.15(b)See footnote
by failing promptly to notify the client that he had received funds
on behalf of the client, to deliver such funds to the client and to make a complete accounting.
We conclude that the respondent engaged in the charged misconduct and violated the Rules
of Professional Conduct.
The respondent's misconduct in failing to transmit promptly funds as directed by the client in Count I is troubling. It is compounded by the misconduct set out in Count II. Such actions are clearly improper and subject to appropriate discipline.
Based upon the agreed facts, the Commission and the respondent propose that the respondent's conduct warrants a public reprimand. Among the factors this Court weighs when considering an appropriate disciplinary sanction are mitigating and aggravating circumstances. Matter of Christoff and Holmes, 690 N.E.2d 1135 (Ind. 1997). In the present case, the parties agree on a number of mitigating factors. The respondent has been engaged in the general practice of law since 1968 with no prior professional disciplinary actions. The
disputes with both clients have been resolved with no further money owed to the clients. The
incidents in these complaints occurred over a period of time in which the respondent was
under personal stress due to his divorce and the death of his father. Finally, respondent has
acknowledged and accepted full responsibility for his actions. The foregoing mitigating
factors and the agreed nature of this resolution convince us that the proposed sanction of
public reprimand adequately addresses this Court's concerns and the relative severity of
respondent's misconduct.See footnote
It is, therefore, ordered that Gregory L. Caldwell is hereby reprimanded and admonished for his misconduct.
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 clerk of each of the United States Bankruptcy Courts in this state with the last known address of the respondent as reflected in the records of the clerk.
Costs are assessed against the respondent.
the client as to the means by which they are to be pursued.
Upon receiving funds or other property in which the client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
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