FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
William R. McCord, pro se. Donald R. Lundberg, Executive Secretary
Seth T. Pruden, Staff Attorney
115 West Washington St., Ste. 1060
Indianapolis, Indiana 46204
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) Case No. 84S00-9806-DI-313
WILLIAM R. McCORD
January 28, 2000
Attorney William R. McCord represented a client before the United States Court of
Appeals for the 7
th Circuit when he was not admitted to practice before
that tribunal. His efforts to litigate his clients case there were so
replete with missed deadlines and other procedural deficiencies that the court ultimately dismissed
the appeal and barred the respondent from practicing before the court.
We find today that those actions violated the Rules of Professional Conduct for
Attorneys at Law and that they warrant the respondents suspension from the practice
Our jurisdiction in this attorney disciplinary matter is derived from the respondents admission
to the bar of this state on October 10, 1980. Before us
now are the duly-appointed hearing officers findings of fact and conclusions of law,
entered following an evidentiary hearing on the events underlying this case.
The respondent appeared
pro se at the hearing, and thereafter petitioned this Court
for review of the hearing officers report. Where the hearing officers report
is challenged, we employ de novo review of the entire record presented to
us. Final determination as to misconduct and sanction rests with this Court.
Matter of Lamb, 686 N.E.2d 113 (Ind. 1997); Matter of Gerde, 634
N.E.2d 494 (Ind. 1994); Matter of Geisler, 614 N.E.2d 939 (Ind. 1993).
As a preliminary matter, we note that in his petition for review of
the hearing officers report, the respondent contends that he was denied due process
in this disciplinary proceeding because the hearing officer denied his motion for pauper
counsel. There is no right to appointment of pauper counsel at
public expense in an attorney disciplinary proceeding. Admission and Discipline Rule
23 contains no provision for the appointment of pauper counsel. Accordingly, the
fact that the hearing officer denied the respondents request for pauper counsel in
this case does not indicate that the respondent was denied due process.
Turning to the facts of this case, we now find that a client
retained the respondent in 1993 to pursue a claim against an insurance company
arising from an automobile accident. The respondent filed a claim in the
Hendricks Circuit Court on July 23, 1993. The defendant insurance company, without
formal opposition from the respondent, later successfully petitioned to remove the case to
federal district court. There it moved for summary judgment, again initially without
formal opposition from the respondent. While the motion for summary judgment pended,
the respondent petitioned the district court for remand to the state trial court.
On May 11, 1994, the district court denied the respondents motion for
remand, and several days later granted to the defendants motion for summary judgment.
The respondent then began an appeal of the dismissal to the 7
Court of Appeals by filing a motion to extend the period of time
he had to file a notice of appeal. The clerk of the
court notified the respondent that he had not previously been admitted to practice
before it. At no time during the pendency of the case
did the respondent submit the required application form and payment to be admitted
to practice before the 7th Circuit.
The court also imposed a briefing schedule, which, due to the respondents unsuccessful
Motion to Stay the appeal (based on alleged but unidentified newly discovered evidence),
was extended. The respondents first brief, due to be filed on
May 10, 1996, was not filed until May 14 and contained several procedural
Because of these irregularities, the clerk of the 7th Circuit
issued a deficiency notice on May 14, 1996. The respondent filed additional
materials intended to bring the brief into compliance eight days after the deadline
established in the deficiency notice. The clerk issued a second deficiency notice
that same day and provided the respondent an additional seven days to make
the necessary corrections. On June 19, 1996, the respondent filed a revised
brief (which was nine days late) along with a Motion to File Instanter.
The court issued a third deficiency notice on June 26, 1996,
again for the respondents failure to follow the courts procedural rules. It
also found the Motion to File Instanter to be insufficient and thus denied
it, and ordered the respondent to show cause why the appeal should not
be dismissed. On October 29, 1996, the respondent submitted another revised brief,
which the court again found to contain incomplete and incorrect information.
The clerks fourth deficiency notice followed the filing of this brief, and upon
order of the court, the respondent was given one final chance to brief
his case in accordance with published rules and guidelines before November 15, 1996.
The respondent did file a brief on November 15; however, the clerk
concluded that substantive changes had been made to the body of the brief
in direct violation of the Federal Rules of Appellate Procedure and the admonishments
of the court contained in the deficiency notices. Upon motion of the
insurance company, the court in January 1997 struck the entire brief because it
raised new issues which had not been presented in the original May 10,
1996 brief. The court also ordered the respondent to show cause why
he should be removed from the roll of attorneys. On January 22,
1997, the respondent replied, therein arguing that the briefs fully complied with the
rules dictated by procedural flexibility of the State of Indiana and that under
the Indiana rules, as outlined in that brief, submission of evidence to the
court is allowed at any time in perfecting an appeal. On
February 25, 1997, the 7th Circuit ordered that the respondent be stricken from
the roll of attorneys, despite the fact that he had never formally been
admitted to that bar.
We find that the respondents consistent and pervasive inability to comply with the
procedural rules of the 7
th Circuit constitutes a failure to act with the
requisite competence, deriving from a lack of the necessary legal knowledge, skill, thoroughness,
and preparation required to protect his clients interests. We therefore find that
the respondent violated Ind. Professional Conduct Rule 1.1.
numerous appellate deadlines in his quest to appeal his clients case, the respondent
violated Prof.Cond.R. 1.3,
which requires a lawyer acting on behalf of a client
to handle diligently and promptly those matters. The respondent violated Prof.Cond.R. 3.4(c)
by failing to abide by the 7th Circuits rules governing admission to that
courts bar and the timing and form of briefs submitted to it.
We find that the respondent also violated Prof.Cond.R. 5.5(a)
by intentionally failing to
become admitted to the bar of the 7th Circuit, despite the fact that
he actively pursued an appeal before it. Finally, we find that the
respondent violated Prof.Cond.R. 8.4(d)
by engaging in conduct prejudicial to the administration of
justice by his extraordinarily deficient handling of his clients claim before that tribunal
and resultant detriment to that client.
In his petition for review, the respondent alleges that there has been a
fundamental deprivation of due process regarding not only this disciplinary action (as noted
above), but also with regard to his clients case against the insurer.
The respondent then goes on to argue, point by point, why the
federal courts should have referred certain substantive legal issues back to the Indiana
courts for resolution.
Those matters were litigated to finality in the federal courts and the respondents
attempts to use this disciplinary proceeding to re-litigate them collaterally are improper.
This disciplinary proceedings sole purpose is to determine whether the respondent engaged
in attorney misconduct and, if so, what the sanction for that misconduct should
be. Neither the respondents client nor the insurance company with whom his
client had a dispute is a party to this action, and this is
not the forum now charged with resolving that dispute.
Having found misconduct, we now turn to the issue of determining proper discipline.
In so doing, we examine any factors that mitigate or aggravate the
misconduct. Matter of Corbin, 716 N.E.2d 429; Matter of Christoff and Holmes,
690 N.E.2d 1135 (Ind. 1997).
Besides his lack of diligence while representing his client before the 7
the respondent misunderstood and misapplied the rules and regulations governing federal appellate practice.
When the procedural deficiencies in his brief were finally corrected, the respondent
then committed more substantive violations of established procedure by placing into the brief
new evidence, contrary to the express admonishment of the court. Lawyers are
bound to represent clients with requisite knowledge, skill, thoroughness, and preparation reasonably necessary.
Prof.Cond.R. 1.1. This may be provided to clients, even in novel
or unfamiliar areas of the law, through, for example, adequate study and preparation
or by association with attorneys experienced in the area. See Comment to
Prof.Cond.R. 1.1. The respondent apparently took no such steps to ensure that
his client benefited from such safeguards. The respondents shortfalls transcended simple lack
of preparation and negligence and ultimately rose to the level of purposeful dereliction
of required procedures (e.g., his failure to become admission to practice before
the 7th Circuit). By purposely failing to follow the procedures of the
tribunal that held the key to his clients legal relief, the respondent stubbornly
deprived his client of any legal redress at all. Given our concerns
over the respondents fitness to represent other clients in light of his performance
before the 7th Circuit, as well as in light of the damage he
inflicted upon his client, we conclude that a period of suspension is warranted.
It is, therefore, ordered that the respondent be suspended for a period of
not less than sixty (60) days, beginning March 1, 2000, at the conclusion
of which he may seek reinstatement provided he can satisfy the requirements set
forth in Ind.Admission and Discipline Rule
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.
Pursuant to Circuit Court Rule 46 in effect at that time,
the respondent, in order to become admitted to that court, was obligated to
complete an application form and tender a $15.00 application fee.
Generally, the procedural deficiencies consisted of jurisdictional statements or summaries noncompliant
with court rules, improper binding, or improper references to the record.
Indiana Professional Conduct Rule 1.1 provides that a lawyer shall provide competent
representation to a client. Competent representation requires the legal knowledge, skill, thoroughness
and preparation reasonably necessary for the representation.
Indiana Professional Conduct Rule 1.3 requires that a lawyer shall act with
reasonable diligence and promptness in representing a client.
Professional Conduct Rule 3.4(c) provides that a lawyer shall not knowingly disobey
an obligation under the rules of a tribunal except for an open refusal
based on an assertion that no valid obligation exists.
Professional Conduct Rule 5.5(a) states that a lawyer shall not practice law
in a jurisdiction where doing so violates the regulation of the legal profession
in that jurisdiction.
Professional Conduct Rule 8.4(d) provides that it is professional misconduct for a
lawyer to engage in conduct that is prejudicial to the administration of justice.