FOR THE RESPONDENT
Richard J. Thonert, 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. 02S00-9902-DI-151
RICHARD J. THONERT )
August 22, 2000
The respondent in this attorney disciplinary matter is charged with failing to disclose
to an appellate tribunal controlling authority known to him, not disclosed by opposing
counsel, that was directly adverse to his clients position. He also failed
to advise his client of the adverse authority when his client was contemplating
his legal options.
This matter is presented to this Court upon the Disciplinary Commissions and the
Statement of Circumstances and Conditional Agreement for Discipline, entered pursuant to Ind.Admission
and Discipline Rule 23(11)(c), in resolution of this matter. That agreement is
before us now for approval. We note that our jurisdiction of
this matter derives from the respondents admission to the practice of law in
this state in 1974.
The parties agree that the respondent represented a client charged with operating a
motor vehicle while intoxicated. Prior to the clients initial hearing and before
the client met with or hired the respondent, the client was advised by
videotape of his rights. He pleaded guilty to the charge, and the
matter was set for sentencing hearing. Prior to that hearing, the client
met with the respondent to discuss the possibility of withdrawing his guilty plea.
During their meeting, the respondent told the client of another criminal case,
Snowe v. State, 533 N.E.2d 613 (Ind.Ct.App. 1989), in which the respondent had
prevailed on appeal for the defendant. He provided a copy of the
Indiana Court of Appeals decision to his new client. The respondent agreed
to represent the client for $5,000, which the client paid.
Snowe also involved a prerecorded videotaped televised advisement of rights, but the record
in that case failed to indicate whether the defendant had ever viewed the
tape advising him of his rights. Further, the opinion held that a
trial court judge cannot rely solely on displaying a videotape advisement of rights,
but instead must also determine whether the defendant knows of and understands his
rights, the nature of the charge or charges against him, the full import
of the rights waiver in his guilty plea, and the sentencing possibilities for
the charges against him. Snowe, 533 N.E.2d at 617.
At the clients initial hearing, it was established that he had viewed the
videotape, that the videotape advised him of his rights and the sentencing possibilities
under the charges filed against him, that he understood the charge against him
and his rights as explained in the videotape, and that he voluntarily waived
those rights and pleaded guilty.
On May 30, 1996, the respondent entered an appearance on behalf of the
client and filed a motion to withdraw the guilty plea. The trial
court denied the motion without hearing. The respondent appealed that ruling, alleging
that his client had a right to withdraw the plea because, due to
the absence of counsel at the time he entered it and the fact
that the record did not reflect that the trial court properly examined the
client as to waiver of his rights, the client had not made it
knowingly, intelligently, or voluntarily. The respondent further argued that the client
had a right to a hearing on his motion to withdraw the plea.
The respondent represented the defendant in
Fletcher v. State, 649 N.E.2d 1022 (Ind.
1995). In that case, this Court addressed the questions that the respondent
raised in his clients case. The ruling in Fletcher was adverse to the
arguments that the respondent offered on appeal of his clients case.
The respondent had served as counsel of record for defendant Fletcher in the
appeal before this Court. This Courts ruling in Fletcher was issued
on May 1, 1995, over one year before the respondent filed his appeal
on behalf of the client. In his appellate brief filed on
behalf of the client, the respondent failed to cite to Fletcher or argue
that its holding was not controlling authority in the clients case. The
respondent also failed to argue that the holding in Fletcher should be changed
or extended. Although he advised his client of the Snowe case,
he failed to advise him of Fletcher or explain any impact Fletcher might
have on his case. Opposing counsel had not previously disclosed Fletcher to
the Court of Appeals.
Indiana Professional Conduct Rule 3.3(a)(3) provides that a lawyer shall not knowingly fail
to disclose to a tribunal legal authority in the controlling jurisdiction known to
the lawyer to be directly adverse to the position of the client and
not disclosed by opposing counsel. The concept underlying this requirement of disclosure
is that legal argument is a discussion seeking to determine the legal premises
properly applicable to the case.
Comment to Ind.Professional Conduct Rule 3.3.
The respondents intimate familiarity with Fletcher is established by his having served as
counsel to the defendant. Accordingly, we find that the respondent violated the
rule by failing to disclose Fletcher to the Court of Appeals in his
legal arguments on behalf of the client.
Professional Conduct Rule 1.4(b) provides that a lawyer shall explain a matter to
the extent reasonably necessary to permit a client to make informed decisions regarding
a representation. A client should have sufficient information to participate intelligently
in decisions concerning the objectives of the representation.
Comment to Prof.Cond.R. 1.4.
By failing to advise his client of a ruling in the controlling
jurisdiction that was adverse to the legal arguments contemplated for his clients case
on appeal, and instead choosing only to advise the client of an earlier
appellate decision favorable to his position, the respondent effectively divested his client of
the opportunity to assess intelligently the legal environment in which his case would
be argued and to make informed decisions regarding whether to go forward with
it. Accordingly, we find that the respondent violated Prof.Cond.R. 1.4(b).
The parties agree that the respondent should be publicly reprimanded for his misconduct.
We agree that a public admonishment is appropriate in this case, given
the negative impact on the efficient resolution of the clients appeal occasioned by
the respondents lack of disclosure and its attendant deception of the client as
to the viability of any efforts to withdraw the guilty plea. Accordingly,
we accept the parties agreement and the discipline called for therein.
It is, therefore, ordered that the respondent, Richard J. Thonert, is hereby reprimanded
and admonished for his violations of Prof.Cond.R. 3.3(a)(3) and 1.4(b).
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.
In Fletcher, we noted, The defendants admission during the initial hearing
that he had seen and understood his rights contradicts his subsequent claim that
his plea was unknowing and involuntary . . . Id. at 1023.
As to the right to a hearing on a motion to withdraw
a plea, the opinion provides that, [c]onvening a hearing is merely a discretionary
option of the trial court. Id.