FOR THE RESPONDENT
Frank B. Harshey, pro se.
FOR THE INDIANA SUPREME COURT DISCIPINARY COMMISSION
Donald R. Lundberg, Executive Secretary
Dennis K. McKinney, Staff Attorney
115 West Washington Street, Suite 1060
Indianapolis, IN 46204
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) CASE NO. 49S00-9904-DI-261
FRANK B. HARSHEY )
January 5, 2001
While prosecuting a lawsuit on behalf of a client, lawyer Frank B. Harshey
intentionally caused the acceptance of a settlement offer that his client had earlier
instructed him to reject. Because of this violation of the Rules
of Professional Conduct for Attorneys at Law, we find today that Harshey, the
respondent in this attorney disciplinary matter, should be publicly reprimanded.
This case formally began on April 23, 1999, when the Indiana Supreme Court
Disciplinary Commission filed a Verified Complaint for Disciplinary Action against the respondent, charging
him with violation of two provisions of the Rules of Professional Conduct. The
parties thereafter agreed upon a resolution of the pending charges, which is now
before us for approval in the form of a Statement of Circumstances and
Conditional Agreement for Discipline, pursuant to Ind. Admission and Discipline Rule 23, Section
11(c). Our jurisdiction in this matter derives from the respondents admission to the
bar of this state on October 12, 1984. We find the undisputed facts,
as agreed to by the parties, are as follow:
In 1991 the respondent represented a plaintiff corporation in a lawsuit it brought
against a defendant corporation. The plaintiff corporations president (hereinafter the president) had
hired the respondent for the representation and spoke for the plaintiff corporation.
The respondents contingency fee agreement provided that he would receive a percentage of
In 1996, the presidents wife filed for dissolution of marriage. The respondent
did not appear as attorney for the president or his wife in the
dissolution proceeding. On November 17, 1997, the trial court hearing the dissolution
entered a dissolution decree providing that the president would retain the plaintiff corporation
as his business, but that the wife would receive 45% of the net
proceeds of the still-pending corporate litigation. The decree also provided that the
attorneys for the president and wife were appointed as commissioners for the sole
purpose of selling the couples real estate.
In November of 1997, the defendant corporation offered to settle the corporate litigation
by paying $125,000. The offer, if not accepted, was to expire in
mid-January 1998. The case at that time was set for trial on
February 17, 1998. The respondent advised the president to accept the settlement
offer, but the president instructed the respondent to refuse it.
On January 12, 1998, without having rejected the offer as previously instructed by
the president, the respondent telephoned the judge who presided over the presidents dissolution
action and informed him of the settlement offer and that a response was
needed by January 16, 1998. The judge set an emergency hearing regarding
the settlement offer for January 16, 1998, and notified the attorney for the
presidents wife. The presidents wife subpoenaed the respondent to testify about
the offer. On January 14, 1998, the president spoke to the respondent
by telephone and instructed him to not appear at the emergency hearing in
the dissolution matter. The respondent told the president that, being under subpoena, he
was required to appear, and further advised the president that he was now
representing the commissioners in the dissolution matter and that only they or the
judge could fire him.
On January 15, 1998, the respondent met, in the chambers of the judge
handling the dissolution, with the presidents dissolution attorney, the wifes attorney and the
judge to discuss the settlement offer. The respondent asked the judge to
authorize him to accept the settlement offer, pending final approval at the next
days hearing. The respondent asked for this authorization because he was concerned
that the president might somehow undermine the respondents attempt to settle the corporate
litigation. The judge issued an emergency order authorizing the respondent to notify
the defendant corporations attorney that the settlement offer would be accepted.
The president moved to continue the hearing in the dissolution case on the
corporate settlement offer, but the court denied the motion, and conducted the hearing
without the president being present. During the hearing, the respondent testified
about the settlement in the corporate litigation and gave his opinion as to
its reasonableness. The judge in the dissolution case ordered the commissioners to
accept the settlement offer. Although the president objected to the settlement of the
corporate litigation as accepted by the dissolution commissioners, the judge hearing the corporate
litigation approved the settlement.
Indiana Professional Conduct Rule 1.2(a) requires lawyers to abide by their clients decisions
concerning the objectives of representation, including whether to accept an offer of settlement
in the matter, and to consult with them about the means by which
such objectives are to be pursued. Despite the presidents clearly expressed wish
that the settlement offer in the corporate litigation be refused, the respondent unilaterally
set into motion a chain of events which resulted in the settlement offer
being accepted. As such, he violated Prof.Cond.R. 1.2(a).
Professional Conduct Rule 1.6(a) generally prohibits lawyers from revealing information relating to representation
of a client unless the client consents after consultation.See footnote By
informing the court handling the presidents dissolution case of the pendency of the
settlement offer in the corporate litigation, the respondent revealed information relating to his
representation of the plaintiff corporation. The respondent failed to consult with
his client, the plaintiff corporation,
prior to revelation of that information and failed
to obtain the clients consent prior to disclosing the fact of the settlement
offer. Accordingly, we find that he violated Prof.Cond.R. 1.6(a).
Having found misconduct, we must determine if the public reprimand agreed
to by the parties is an appropriate sanction. Factors we consider in
this assessment include the nature of the misconduct, the duty violated, the lawyers
mental state, the actual or potential harm caused by the misconduct, the duty
of this Court to preserve the integrity of the profession, and the potential
risk to the public in permitting the respondent to continue in the profession.
Matter of Drozda, 653 N.E.2d 991 (Ind. 1995); Matter of Cawley, 602 N.E.2d
1022 (Ind. 1992).
The respondent simply ignored his clients clear wishes, as expressed to him by
the president, with regard to whether to accept the settlement offer in the
corporate litigation, and instead imposed his contrary will. By so doing, he
ceased serving as an advocate for his client and instead became an adversary,
one who disclosed confidential information about the representation in order to achieve his
goal of obtaining a quick recovery and its attendant legal fee.
This Court has imposed public reprimands for roughly similar violations of the Rules
of Professional Conduct. In Matter of Mullins, 649 N.E.2d 1024 (Ind.
1995), a lawyer sought to have herself appointed as the personal guardian of
a person in a persistent vegetative state, and then, without consent, released personal
medical information about the person to the press. In Matter of
Bender, 704 N.E.2d 115 (Ind. 1999), a lawyer pursued litigation on behalf of
an individual he named as co-plaintiff even after that person clearly stated that
she did not wish to be represented by the lawyer. For that,
along with an attendant conflict of interest, we publicly admonished the lawyer.
We also consider aggravating and mitigating circumstances. Matter of Christoff and Holmes, 690
N.E.2d 1135 (Ind. 1997); Matter of Darling, 685 N.E.2d 1066 (Ind. 1997).
In purported mitigation, the parties in this case note that, although the client
never authorized respondent to reveal the proposed settlement or the amount offered therein,
the client himself had communicated the existence of the offer and its general
amount to others before the respondent divulged the information to the judge.
Based upon consideration of the foregoing factors, we find that the proposed sanction
should be approved, but only because of our strong inclination to support agreed
resolutions. In view of the respondents knowing breach of his fiduciary obligation
to this client, had this case been litigated, the sanction may well have
been more severe.
It is, therefore, ordered that the respondent, Frank B. Harshey, 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 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 are assessed against respondent.
SULLIVAN, BOEHM, and RUCKER, JJ., concur.
SHEPARD, Chief Justice, dissenting, joined by JUSTICE DICKSON:
Mr. Harsheys stunning treatment of his client is remarkably simple to describe.
After the client decided to turn down the defendant corporations offer of settlement,
Harshey decided not to act on the clients decision and set about finding
some way to make the client accept it anyway.
He started off with an ex parte communication to the judge who had
presided in the clients divorce, a venue in which Harshey had no status
at all. In the course of this communication, he violated his duty
to preserve the confidences of his client by revealing the status of the
When the client got wind of what Harshey was up to and asked
him to stop, Harshey lied to the client, claiming he was now representing
the lawyers who had litigated the divorce and could be fired only by
Fearful that his client might find a way to stop him, Harshey decided
to meet with the dissolution judge and the dissolution lawyers a day in
advance of the scheduled court hearing to ask for permission to inform
the defendant corporation that its settlement would be accepted. In effect, he
assured that even if the client showed up at the hearing to stand
on his rights, it would be too late. It was too late.
The client who wanted to go to trial and whose trial was
just a few weeks off never got his day in court.
He was thwarted by the active and willful effort of his lawyer, who
refused the clients proper instructions, breached his confidences, lied to him, and ex
parted the judge.
Our disciplinary system should not treat such behavior as a matter for mere
Professional Conduct Rule
A lawyer shall abide by a clients decisions concerning the objectives of representation,
subject to paragraphs (c), (d) and (e), and shall consult with the client
as to the means by which they are to be pursued. A lawyer
shall abide by a clients decision whether to accept an offer of settlement
of a matter. . . .
Professional Conduct Rule 1.6 provides:
(a) A lawyer shall not reveal information relating to representation of a client
unless the client consents after consultation, except for disclosures that are impliedly authorized
in order to carry out the representation, and except as stated in paragraph
(b) A lawyer may reveal such information to the extent the lawyer
(1) to prevent the client from committing any criminal act; or
(2) to establish a claim or defense on behalf of the lawyer in
a controversy between the lawyer and the client, to establish a defense to
a criminal charge or civil claim against the lawyer based upon conduct in
which the client was involved, or to respond to allegations in any proceeding
concerning the lawyers representation of the client. . .