FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
Ronald E. Elberger Donald R. Lundberg, Executive Secretary
Indianapolis, IN Seth T. Pruden, Staff Attorney
Indiana Supreme Court Disciplinary Commission
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) Case No. 49S00-0008-DI-459
ROBERT M. BAKER, III )
November 26, 2001
Lawyer Robert M. Baker, III, violated the Rules of Professional Conduct by sending
to an opposing party a letter concerning matters related to the respondents representation
of a client, where the respondent knew the opposing party was represented by
counsel and where the opposing partys counsel did not consent to the contact.
This matter comes before us upon the respondent and the Disciplinary Commissions
of Circumstances and Conditional Agreement for Discipline, wherein they agree that the respondent
engaged in misconduct and that a public reprimand is an appropriate discipline.
That agreement is now before us for final approval. The respondent
was admitted to practice in this state in 1976.
The parties agree that beginning about December 13, 1991, the respondent was hired
to represent the interests of a principal (hereinafter the client) in a pool
construction and supply business that was contemplating reorganization. The reorganization of
that business culminated on March 11, 1992, when its construction aspect was split
from the pool supply business, whose principal was the clients former partner.
The former partner was represented by attorney Deckard, who also represented the client
in certain personal matters until April 10, 1992. During the period of
the reorganization, the client believed that Deckard represented the clients interests with regard
to indemnities and guaranties in general and liabilities to the principals under bonding
At the time of the split, the pool business was in the midst
of two pool construction projects, one for a school corporation and another for
a city. The parties agreed that the clients pool construction business would
complete the jobs as subcontractor for the pool supply business. A dispute
arose regarding payments for the projects to the construction business. On August
3, 1993, the construction business filed suit against the school corporation and the
company that provided construction bonds for the project. Deckard entered his appearance
for the bonding company.
The respondent reasonably believed that Deckard had a conflict of interest in representing
the bonding company in the matter due to his former representation of the
respondents client and the clients interests relative to the pool construction business.
On September 2, 1993, the pool construction business filed suit against the city
and the bonding company.
On September 23, 1993, the respondent wrote to Deckard asserting that Deckard should
be disqualified from serving as counsel in the school corporation and city suits
due to a conflict of interest. Without the consent of Deckard, the
respondent forwarded the letter to Deckards client, the bonding company. He also sent
another letter directly to the bonding company, in which the respondent set out
his clients legal position on indemnification agreements, discussed the apparent conflict of interest,
and demanded that the company terminate Deckard as its attorney. The respondent
did not advise Deckard of the letter and he did not provide him
with a copy.
In recognition of the need to prevent lawyers from taking advantage of laypersons
and to preserve the integrity of the lawyer-client relationship, Ind. Professional Conduct Rule
4.2 provides that a lawyer, in representing a client, shall not communicate about
the subject of the representation with a party the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the consent
of the other lawyer or is authorized by law to do so.
By communicating with the bonding company about the pending litigation without Deckards consent,
the respondent violated the rule.
The respondent and Commission ask us to administer a public admonishment for the
respondents misconduct. In this regard, they note several mitigating factors, including the fact
that no harm resulted from the respondents communication and the respondents remorse for
his acts. We note also that the parties agree as an aggravating
circumstance that the respondent sought to gain an unfair advantage in the litigation
through his letter to the opposing party. Past violations of Prof.Cond.R.
4.2 or its predecessor have resulted in public admonishment.
See, e.g., Matter of
Syfert, 550 N.E.2d 1306 (Ind. 1990) (communicating with represented opposing party in legal
dispute without other lawyer's knowledge and consent, and circumventing negotiations with opposing lawyer
in order to pressure opposing party to settle on terms less favorable than
those previously negotiated by party's lawyer); Matter of Mahoney, 437 N.E.2d 49
(Ind. 1982) (intentionally and knowingly disregarding expressed wishes of another attorney in conversing
with that attorney's client on subject matter which affecting other attorney's client's vital
interests violated DR 1-102(A)(5), DR 7-104(A)(1)). In light of precedent and the
parties present agreement, we find that a public reprimand is appropriate in this
It is, therefore, ordered, that the respondent, Robert M. Baker, III, is hereby
reprimanded and admonished for this misconduct set forth 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 Federal District Courts in this state, the clerk of the United
States Bankruptcy Court in this state, and the hearing officer appointed to hear
this matter with the last known address of respondent as reflected in the
records of the Clerk.
Costs of this proceeding are assessed against respondent.