FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
James A. Schafer Donald R. Lundberg, Executive Secretary
400 N. High Street 115 West Washington Street
Suite 200 Suite 1165
Muncie, IN 47305 Indianapolis, IN 46204
SUPREME COURT OF INDIANA
IN THE MATTER OF ) ) Case No. 18S00-0008-DI-498 DONALD K. MCCLELLAN )
This Courts opinion continues the perception that was
discussed extensively in the Indiana Lawyer, March 3-16,
1999, where the legal profession is attempting a public
relations campaign concerning the publics perception of
lawyers. The Indiana Lawyer discussed the American Bar
Associations study that said the publics perception is
lawyers are more concerned with their own interests
than the publics or their clients and expressed a concern
to stop the cocktail party jokes or mute the motion picture
stereotypes that paint the legal professions as greedy and
The Courts opinion does nothing more than fuel these
perceptions. It is a widely held belief by the general public
that lawyers lie and the Courts (sic) protect them. This Court
cannot ignore (the plaintiffs) attorney lied to (an insurance
adjuster), when he promised not to seek a default, communicated
both orally and in writing, and then later filed a default. The
breaking of a promise is a lie and the essence of the Courts
holding is that it is acceptable for a lawyer to lie to an insurance
The Trial Court abused its (sic) discretion in not enforcing
(the) promise (of the plaintiffs lawyer) not to seek a default.
This Court could have advanced lawyer accountability in
communications by finding the Trial Court abused its (sic)
discretion in not enforcing (that) promise and further,
by stating the failure to enforce a lawyers promise
not to seek a default constitutes an abuse of discretion
and holding that attorney misrepresentations or lying would
not be tolerated.
Appellants Petition for Rehearing at 4 (emphasis in original).
On June 9, 1999, the Court of Appeals published an opinion granting the petition for rehearing. B&L Appliance and Services, Inc. v. McFerran, 712 N.E.2d 1033 (Ind.Ct.App. 1999). Although it modified its original decision, the Court of Appeals again affirmed the trial court. The Court of Appeals also struck the third section of the respondents petition for rehearing set forth above, stating that the accusations were a disservice to the client and demeaning to the judiciary and the legal profession.
We have stated that the judicial institution is greatly impaired if attorneys choose to assault the integrity of the process and the individuals who are called upon to make decisions. Matter of Garringer, 626 N.E.2d 809 (Ind. 1994). This court must preserve the integrity of the process and impose discipline on those who cannot adhere to professional standards in this regard. Accordingly, Ind.Professional Conduct Rule 8.2(a) prohibits lawyers from making statements that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge. The respondents statement that the Court of Appeals authorized attorneys to lie supports a negative perception of lawyers generally and impugns the integrity of the judges who decided that case. Accordingly, we find that the respondent violated the rule.
Professional Conduct Rule R. 8.4(d) provides that a lawyer commits professional misconduct when engaging in conduct prejudicial to the administration of justice. The respondent violated that rule by engaging in conduct that demeaned the judiciary and the legal profession.
Given our finding of misconduct, we will now determine whether a public reprimand is appropriate discipline for it. This assessment involves analysis of the respondents state of mind underlying the misconduct, the duty of this court to preserve the integrity of the profession, the risk to the public in allowing the respondent to continue in practice, and any mitigating or aggravating factors. Matter of Mears, 723 N.E.2d 873 (Ind. 2000).
The respondent has no disciplinary history and his inappropriate remarks, while misguided, were the product of overzealous advocacy, rather than selfish or dishonest motive. We have imposed an admonishment for similar misconduct. See, e.g., Matter of Reed, 716 N.E.2d 426 (Ind. 1999) (public reprimand for prosecuting attorney who made inaccurate and reckless statements about newly appointed judge questioning the judges integrity). Accordingly, we find that the agreed sanction of a public reprimand is sufficient in this case.
It is, therefore, ordered that the respondent, Donald K. McClellan, is admonished and reprimanded for this 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 Clerk of each of the United States Bankruptcy Courts in this state with the last known address of the respondent as reflected in the records of the Clerk.
Costs of this proceeding are assessed against the respondent.