FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
Karl L. Mulvaney Donald R. Lundberg, Executive Secretary
BINGHAM & McHALE Dennis McKinney, Staff Attorney
Indianapolis, Indiana 46204 115 West Washington Street
Indianapolis, Indiana 46204
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) CASE NO. 49S00-0103-DI-161
RAYMOND F. FAIRCHILD )
November 4, 2002
Indianapolis attorney Raymond F. Fairchild neglected the legal matters of five clients and
subsequently failed to cooperate with the Disciplinary Commission during resultant investigations. Because the
respondent has demonstrated significant efforts since those transgressions to rectify the conditions he
claims led to his misconduct, we find today that a portion of his
suspension from the practice of law we impose today for his misconduct should
be suspended to probation.
This matter comes before this Court upon the hearing officers report on the
Commissions verified application for judgment on the complaint, filed pursuant to Ind. Admission
and Discipline Rule 23(14)(c), and occasioned by the respondents failure to answer timely
the Commissions verified complaint for disciplinary action. The hearing officer did
hold an evidentiary hearing on April 12, 2002, on issues in purported mitigation
and aggravation of the respondents conduct. Following that hearing and the hearing
officers report to this Court upon the Commissions application for judgment on the
complaint, the respondent petitioned this Court for review of the hearing officers findings,
as well as to supplement the record. We find that this latter petition
should be denied.
The respondent is an attorney in good standing, admitted to practice law in
Indiana on September 22, 1971. He practices law in Indianapolis.
Taking the matters alleged in the Commissions verified complaint to be true, we
now find that, pursuant to Count I, in 1992 a client hired the
respondent to represent her in a medical malpractice case. In October 1993,
the respondent filed a malpractice claim on behalf of the client before the
Indiana Department of Insurance. In January 1998, the medical review panel issued
its opinion that the evidence did not support a conclusion that the medical
providers had failed to meet the applicable standard of care. Shortly
thereafter, the respondent filed suit against the attending physician and the clinic where
the injury occurred. On April 8, 1998, the defendants moved for summary
judgment, based on the opinion of the medical review panel. The trial
court set the motion for summary judgment for hearing on September 10, 1998.
The respondent did not respond to the motion, never submitting counter-affidavits or
other evidence that the defendants had breached their duty of care to the
client. The respondent failed to attend the summary judgment hearing, and on
September 21, 1998, the court entered summary judgment for the defendants. The respondent
never advised the client that summary judgment had been entered against her.
In 1999, the client contacted the court to ascertain the status of her
case and only then learned that summary judgment had been entered against her.
The client routinely telephoned the respondent to inquire about her case but
he never took her telephone calls or called her back.
The respondent twice failed to respond to the Commissions later demands for response
to the grievance the client filed against the respondent.
We find that the respondent violated Ind. Professional Conduct Rule 1.3
to prepare and file with the court a response to the defendants' motion
for summary judgment and failing to attend the hearing on defendants' motion for
summary judgment to represent his client at that hearing; Prof.Cond.R. 1.4(a)
to keep the client informed about the status of her case, including the
entry of summary judgment against her, and by failing to respond to her
telephone calls inquiring about her case; and Prof.Cond.R. 8.1(b)
by failing to respond
to the Commission's demand for response to the clients grievance.
Pursuant to Count II, we now find that in August 1997, a client
hired the respondent to represent him in a workers compensation case against the
clients former employer. The respondent filed a timely claim on the clients
behalf with the Indiana Worker's Compensation Board. The respondent was unable to
develop strong medical evidence to support the clients disability claim, which prompted the
client to agree to settle his claim for $1,000. In September 1999,
the client and his former employer signed a compromise settlement agreement, and the
Worker's Compensation Board entered an award for $1,000. The former employers attorney
later provided to the respondent a check for $1,000 pursuant to the settlement.
The respondent misplaced the check and did not disburse to the client his
share. The client telephoned the respondent and wrote to him inquiring about the
payment of the settlement, but the respondent never replied. In March
of 2000, in responding to the Commissions demand for a response to the
clients grievance, the respondent found the check, which by that time was stale.
We find that the respondent violated Prof.Cond.R. 1.3 by failing to transmit to
the client the settlement check before it went stale; Prof.Cond.R. 1.4(a) by failing
to advise the client that he had received the settlement check, and by
failing to respond to his clients telephone inquiries about his case; Prof.Cond.R 1.15(a)
by failing to deposit the settlement check into his trust account, and Prof.Cond.R.
by failing to deliver promptly to the client his share of the
Pursuant to Count III, we now find that a client was injured on
the job in December 1995, had surgery on January 31, 1996, and returned
to work in June 1996. The client hired the respondent in January
1996 to seek workers compensation for her. Shortly after the clients accident,
the employer notified its insurance carrier. On January 15, 1996, the respondent
notified the insurer that he was representing the client, whose medical bills the
insurer had paid. Based on its physician's examination of the client, the
insurer determined that she was entitled to a total permanent partial impairment (PPI)
payment of $1,000. On November 21, 1996, the insurer sent its PPI
offer directly to the client, even though it had been advised that the
respondent represented her. Shortly thereafter, the insurer discovered its mistake and sent
its PPI offer to the respondent. On April 2, 1997, the insurers
claim representative telephoned the respondent's office to request a response to the offer.
The respondent never returned the insurers call.
On May 16, 1997, the insurer again communicated its offer, along with all
of the documents necessary to conclude settlement of the claim, to the respondent.
In early 1998, the insurers claim representative found the claim was still
unresolved. In reviewing the file, the claim representative discovered a second medical
opinion submitted by the respondent for his client. The second opinion evaluated
the clients PPI as greater than the insurers physician estimated. Consequently, the
insurer increased its PPI offer to $1,350 in an attempt to settle the
claim, sending the offer and new copies of the proposed agreement to the
respondent on February 23, 1998. The respondent never replied.
The client attempted to contact respondent with no success between February 1998 and
We find that the respondent violated Prof.Cond.R. 1.3 by failing for more than
four years to prosecute the clients claim before the Workers Compensation Board; Prof.Cond.R.
1.4(a) by failing to respond to the clients inquiries about her case
from February 1998 through
April, 1999; and Prof.Cond.R. 1.4(a) by failing to inform the client of the
insurers increased PPI offer.
Under Count IV, we now find that in July 1992, a client suffered
an on-the-job injury. The client initially hired another attorney to represent him
in his workers compensation claim. The client's employers insurance carrier paid the
client temporary total disability (TTD) payments of approximately $360 per week from July
25, 1992 to June 18, 1993. On June 11, 1993, the
insurer offered the client a permanent partial impairment (PPI) payment of $5,500, based
on a physicians evaluation of the client. The client did not accept
the offer. The clients initial attorney withdrew in January 1995, and the
client then hired the respondent to pursue the workers compensation claim. The
respondent obtained the clients file, including the PPI offer of $5,500 and the
insurers notice to the client that its TTD payments would end on June
18, 1993. On June 27, 1995, the insurer offered the client a
PPI payment of $5,000, based on a physicians evaluation of the client. The
offer was contemporaneously communicated to the respondent. The respondent never filed an
application for adjustment of claim with the Workers Compensation Board on the client's
From the summer of 1995 until the client filed a grievance with the
Commission in February 1999, the client repeatedly telephoned the respondent to check on
the status of his case claim. The respondent never returned the calls.
On June 4, 1998, the client's wife sent a letter to respondent
requesting information concerning the work the respondent had done to that point. The
respondent never replied.
The Commission twice demanded from the respondent a response to the clients subsequent
grievance. The respondent did not respond to the demands for some 21
months after the response was due.
We find that the respondent violated Prof.Cond.R. 1.3 by failing to timely prosecute
the client's workers compensation claim; Prof.Cond.R. 1.4(a) by failing to keep the client
informed about the status of his case, and by failing to respond to
his telephone calls inquiring about his case; and Prof.Cond.R. 8.1(b) by failing promptly
to respond to the Commission's demand for information.
As to Count V, we now find that a client was injured at
his workplace on May 4, 1996. In June 1996, the client hired
the respondent to represent him in a workers compensation claim. The employer's physicians
eventually cleared the client to return to work, finding no permanent partial impairment.
The respondent sent the client to a physician for examination. In
a letter to respondent, the physician reported that he had found a congenital
abnormality that might have been aggravated by the client's accident, and recommended a
CT scan. The respondent concluded that the medical opinion foreclosed any possibility
of pursuing a worker's compensation claim because the physician did not assign a
permanent partial impairment rating to the client. The respondent did not advise
the client that he did not believe he could bring a worker's compensation
case on his behalf and he never asked the client if he wanted
a CT scan or re-examination by another physician. The respondent never filed
an application for adjustment of claim with the Workers Compensation Board on behalf
of the client.
Although the client frequently telephoned the respondent, his calls went unanswered.
The client later hired a new lawyer, who arranged for the client to
be examined by another physician, who determined that the client suffered a 5%
permanent partial impairment.
We find that the respondent violated Prof.Cond.R. 1.3 by failing to advise the
client of the respondent's evaluation of the client's case following the physicians report,
and Prof.Cond.R. 1.4(a) by failing to respond to the client's telephone calls, and
by failing to ask the client whether he wanted to employ another physician
to attempt to prove he had suffered permanent partial impairment.
At hearing on extenuating and aggravating factors, the respondent presented evidence which he
contended was mitigating: that he suffered from personal and emotional problems during
the time of his misconduct, including his wifes serious illness and the death
of both his and his wifes parents. He also presented evidence of
his good reputation generally in the local legal community. The hearing officer
specifically attributed mitigating value to this evidence.
The Commission presented evidence of three aggravating circumstances: that the respondent committed multiple
violations of the
Rules of Professional Conduct; that he engaged in misconduct when
he had substantial experience in the practice of law, being an attorney since
1971; and that he was privately reprimanded by this Court in 1984 for
The hearing officer also found a fourth aggravating circumstance not argued by the
Commission: that the respondent showed a bad faith obstruction of the disciplinary
proceeding by intentionally failing to comply with the rules or orders of the
The respondent also contended that evidence that he has regularly attended the Indiana
Judges and Lawyers Assistance Program ("JLAP") Depression Support Group and that he has
made some efforts to see a psychiatrist in the near future should be
viewed with mitigating value. The hearing officer concluded, however, that the
respondent offered no medical evidence that he is suffering from a mental disability
or that his misconduct was caused by a mental disability, and therefore failed
to find that the respondent suffers from a recognized physical or mental disability
or impairment. Consequently, the hearing officer declined to attach mitigating value to
the respondent's attendance at the JLAP Depression Support Group and his belated efforts
to seek an assessment.
The respondent also urges us to recognize his restitution to his clients (or,
in two instances, his promise that he will provide restitution), as a mitigating
factor. We conclude, as did the hearing officer, that the respondents restitution
or promise of restitution should not be viewed as an extenuating factor, given
that in each case he provided it to his former clients only after
the client had filed a grievance with the Commission.
Although we agree with the hearing officer that the respondent has failed to
demonstrate a mental disability as a causal factor in his misconduct, we do
ascribe some mitigating value to the respondents apparent efforts to address the personal
stresses that contributed to his misconduct, while nonetheless recognizing that the respondents neglect
was severe and warrants suspension designed to protect the public from further harm.
See e.g., Matter of Roberts, 727 N.E.2d 705 (Ind. 2000) (suspension for
not less than one year for seven counts of client neglect and failure
to respond to the Commission); Matter of Golding, 700 N.E.2d 464 (Ind. 1998)
(suspension for not fewer than nine months for five counts of client neglect
and failure to respond to the Commission). More specifically, the respondents efforts
so far lead us to conclude that he should be allowed to continue
to practice after a period of suspension, provided he continues to obtain
the assistance he needs to ensure that he does not commit similar ethical
violations in the future.
Accordingly, we order that the respondent be suspended from the practice of law
for a period of not less than one (1) year, effective December 14,
2002. The first six (6) months of the suspension shall be executed,
with the balance stayed to a two (2) year period of probation.
The terms of this probation are as follows:
The respondent shall continue to be monitored by JLAP and thereafter as JLAP
recommends to the Commission;
The respondent shall continue to attend regularly monthly depression support group meetings as
recommended by JLAP;
The respondent shall agree that information from JLAP may be shared with the
The respondent shall follow-through on assessment and treatment recommendations from the physicians noted
in the respondents
Petition for Review;
The respondent shall continue to utilize computer systems and software to keep current
on active cases; and
The respondent shall pay all costs pertaining to his treatment and monitoring.
Should the respondent successfully conclude his term of probation, he shall automatically be
reinstated fully to the practice of law in this state. Should the
Commission advise this Court that the respondent has failed to meet any of
the terms of this probation, the stay of the second six (6) months
of the respondents suspension shall be rescinded, and the respondent shall immediately be
suspended for the balance of his term of suspension, after which any reinstatement
shall be subject to the provisions of 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 the hearing officer, 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
Costs of this proceeding are assessed against the respondent.
Professional Conduct Rule 1.3 provides:
A lawyer shall act with reasonable diligence and promptness in representing a client.
Professional Conduct Rule 1.4(a) provides:
(a) A lawyer shall keep a client reasonably informed about the status of
a matter and promptly comply with reasonable requests for information.
Professional Conduct Rule 8.1(b) provides:
An applicant for admission to the bar, or a lawyer in connection with
a bar admission application or in connection with a disciplinary matter, shall not:
. . .
(b) fail to disclose a fact necessary to correct a misapprehension known by
the person to have arisen in the matter, or knowingly fail to respond
to a lawful demand for information from an admissions or disciplinary authority, except
that this Rule does not require disclosure of information otherwise protected by Rule
Professional Conduct Rule 1.15(a) provides:
A lawyer shall hold property of clients or third persons that is in
a lawyer's possession in connection with a representation separate from the lawyer's own
property. Funds shall be kept in a separate account maintained in the
state where the lawyer's office is situated, or elsewhere with the consent of
the client or third person. Other property shall be identified as such
and appropriately safeguarded. Complete records of such account funds and other property
shall be kept by the lawyer and shall be preserved for a period
of five years after termination of the representation. A lawyer may deposit
his or her own funds reasonably sufficient to maintain a nominal balance.
Professional Conduct Rule 1.15(b) provides:
Upon receiving funds or other property in which the client or third person
has an interest, a lawyer shall promptly notify the client or third person.
Except as stated in this rule or otherwise permitted by law or
by agreement with the client, a lawyer shall promptly deliver to the client
or third person any funds or other property that the client or third
person is entitled to receive and, upon request by the client or third
person, shall promptly render a full accounting regarding such property.