FOR THE RESPONDENT
FOR THE INDIANA SUPREME COURT DISCIPINARY COMMISSION
Donald R. Lundberg, Executive Secretary
115 West Washington Street, Suite 1060
Indianapolis, IN 46204
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) CASE NO. 22S00-0107-DI-319
ALAN ROY MILLER )
December 11, 2001
By failing to answer the verified complaint for disciplinary action filed against him,
the respondent, Alan Roy Miller, effectively has admitted to two counts of client
neglect. Because of his neglect, we find that he should be suspended
from the practice of law.
The Disciplinary Commission filed a verified complaint for disciplinary action against the respondent
on July 9, 2001, and served a summons and complaint upon the respondent
at his addresses as reflected in the Roll of Attorneys. Pursuant to Ind.Admission
and Discipline Rule 23(14), as amended effective January 1, 2001, a respondent to
a disciplinary complaint shall answer the complaint within 30 days after service of
the summons and complaint (unless additional time to respond has been procured by
motion); otherwise, the allegations in the complaint shall be taken as true.
Pursuant to that rule, the Commission has now filed its
Verified Petition for
Judgment on the Complaint, therein stating the respondent has not answered its complaint
and summons. Since no hearing officer has yet been appointed to hear
this matter and because no appearance has been filed by or on behalf
of the respondent, the Commissions petition is now before this Court.
We find that the Commissions petition should be granted.
Accordingly, taking the allegations in Count I of the complaint as true, we
now find that on April 6, 1999, the respondent entered an appearance on
behalf of a defendant charged with armed robbery. The defendant was not
able to post bail and remained incarcerated. During this time, the defendant
was unable to contact the respondent by telephone because the respondents office did
not accept collect calls. The respondent did not respond to the defendants
letters and never visited him in jail or during the defendants 90-day stay
in a state hospital. The defendant met the respondent for the first
time in February 2000 during the defendants second court appearance. The respondent
had no explanation for the defendant why he had not answered his letters,
but promised to listen to the defendants taped statement and visit him in
jail in two weeks. The visit never occurred. The defendant ultimately
pleaded guilty to robbery and burglary and was sentenced to nine years incarceration,
with four years of that time suspended. While investigating the defendants grievance against
the respondent, pursuant to Admis.Disc.R. 23(10)(a)(2) the Commission sent at least four demands
for response to the respondent at his addresses as reflected on the Roll
of Attorenys. The respondent never responded.
We find that these facts establish that the respondent violated Ind.Professional Conduct Rule
1.3 by failing to act with reasonable diligence and promptness in representing the
defendant. He violated Prof.Cond.R. 1.4 by failing to keep the defendant reasonably
informed about the status of the case, failing to respond to his requests
for information, and by failing to explain the matter to him to the
extent reasonably necessary to permit him to make informed decisions regarding the representation.
By failing to respond to the Commissions lawful demands for information during
its investigation, the respondent violated Prof.Cond.R. 8.1(b).
Pursuant to Count II of the verified complaint, we find that on October
29, 2000, the respondent, while serving as a public defender, entered an appearance
on behalf of a defendant charged with residential entry. The defendant was
unable to contact the respondent by telephone or otherwise prior to a hearing
on June 6, 2000. During this time, the respondent failed to appear
at the defendants scheduled pre-trial hearing. On June 6, 2000, the defendant
pleaded guilty as charged for a time-served sentence. During its
investigation of the defendants grievance, the respondent failed to respond to at least
three demands for information tendered to him by the Commission.
By his actions in Count II, we find that the respondent violated Prof.Cond.R.
1.3, 1.4, and 8.1(b).
Having found misconduct, we now turn to the issue of proper sanction.
Precedent indicates that the appropriate discipline for relatively isolated instances of client neglect,
coupled with a failure to respond to the Commission, is a relatively short
period of suspension. See, e.g., Matter of Jones, 737 N.E.2d 1158 (Ind.
2000) (30 days for one count of neglect, lack of adequate communication, failure
to respond to Commission); Matter of Corbin, 716 N.E.2d 429 (1999) (failure to
seek final hearing in dissolution matter, failure to pursue client's tort claim, failure
to respond to client telephone messages and advise clients regarding status of litigation,
failure to provide clients with case materials upon termination of representation, and failure
to respond to disciplinary investigation warranted 90 day suspension). However, in
this case we are troubled by the respondents complete lack of action, both
with regard to the two criminal defendants as well as during the Commissions
investigation of these matters. The respondent has even failed to acknowledge in
any way the Commissions verified complaint. The respondents complete lack of involvement leads
us to conclude that, in the interests of protecting the public and the
profession, he should be required to demonstrate his fitness before being permitted to
resume his status as an attorney in this state.
Accordingly, we order that the respondent, Alan Roy Miller, be suspended from the
practice of law in this state, effective January 1, 2002, for a period
of not fewer than sixty (60) days, at the conclusion of which his
reinstatement shall be conditioned upon his satisfaction of the requirements of reinstatement pursuant
to 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 respondent.
Indiana Admission and Discipline Rule 23(14) provides, in relevant part:
[. . .] The case shall be heard on the complaint and
an answer which shall be filed by the respondent within thirty (30) days
after service of the summons and complaint, or such additional time as may
be allowed upon written application to the hearing officer that sets forth good
cause. . . . An answer shall assert any legal
. . .
The answer shall admit or controvert the averments set forth in the complaint
by specifically denying designated averments or paragraphs or generally denying all averments except
such designated averments or paragraphs as the respondent expressly admits. If the
respondent lacks knowledge or information sufficient to form a belief as to the
truth of an averment, he or she shall so state and his statement
shall be considered a denial. If in good faith the respondent intends
to deny only a part of an averment, he or she shall specify
so much of it as is true and material and deny the remainder.
All denials shall fairly meet the substance of the averments denied.
Averments in a complaint are admitted when not denied in the answer.
The answer may assert any legal defense.
. . .
(c) When a respondent has failed to answer a complaint as required by
this section and that fact is made to appear by affidavit and an
application for judgment on the complaint, the allegations set forth in the complaint
shall be taken as true. If a respondent who has failed to
answer has appeared in the action, he or she (or, if appearing by
counsel, his or her counsel) shall be served with written notice of the
application for judgment on the complaint at least seven (7) days prior to
the hearing on such application. Upon application for judgment on the complaint
and in the absence of any answer by the respondent, the hearing officer
shall take the facts alleged in the complaint as true and promptly tender
a report to the Supreme Court in conformity with subsection (h). If
a hearing officer has not been appointed by the time an application for
judgment on the complaint is filed and no appearance has been filed by
or on behalf of the respondent, the Supreme Court shall act directly on
the application for judgment on the complaint.
We imposed a similar discipline in another case where a lawyers
chronic neglect of client matters and this Courts resolution of that misconduct raised
concerns about the lawyers fitness to continue in the practice of law.
Matter of Cushing, 663 N.E.2d 776 (1996), reinstatement granted 693 N.E.2d 530 (suspension
for 30 days without automatic reinstatement for neglect, lack of adequate communication, and
failure to protect client's interests upon termination of representation; exacerbated by failure to
attend resultant disciplinary hearing).