FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT DISCIPLINARY COMMISSION
Ronald E. Elberger Donald R. Lundberg, Executive Secretary Bose McKinney and Evans Dennis K. McKinney, Staff Attorney 135 N. Pennsylvania St. 115 W. Washington Street, Ste. 1060 Indianapolis, IN 46204 Indianapolis, IN 46204 ________________________________________________________________________
SUPREME COURT OF INDIANA
The respondent in this attorney disciplinary action has been charged with failing to obtain the consent of a client before initiating a lawsuit on the client's behalf and thereafter engaging in an impermissible conflict of interest in relation to his representation of that client. Pursuant to Ind.Admission and Discipline Rule 23, Section 11(c), the Disciplinary Commission and the respondent have agreed that certain violations of the Rules of Professional Conduct for Attorneys at Law occurred and that a public reprimand is an appropriate sanction for that misconduct. The parties' agreement is now before this Court for approval. We note that the respondent's admission to the bar of this state in 1980 confers with us disciplinary jurisdiction in this case.
directly communicate with her since she was represented by counsel. On January 19, 1994,
the beneficiary sued the trust and the trustee for breach of contract by cross-claim filed in
the lawsuit. Pursuant to that claim, on January 31, 1994, the beneficiary's attorney deposed
a witness. During the questioning, the respondent was present as attorney for the trust.
Thereafter, the beneficiary's attorney notified the respondent that he felt the respondent had
a conflict of interest based on his appearance in the case for both the trust and the
beneficiary, who now were adversaries in the case. He requested that the respondent
withdraw his appearances. Instead of withdrawing, the respondent, as attorney for the trust,
filed an answer to the beneficiary's cross-claim. The respondent subsequently filed an
objection to an amendment to the cross-claim before finally moving to withdraw as counsel
for the beneficiary on September 7, 1994. The next month, the trust moved the court
withdraw as a party plaintiff in the case.
Indiana Professional Conduct Rule 1.2(a) provides, in relevant part, that a lawyer shall abide by a client's decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued. By neither consulting with the beneficiary before filing suit on her behalf or obtaining her permission to file the suit on her behalf, the respondent violated Ind.Professional Conduct Rule 1.2(a).See footnote 1 His actions in filing the suit without her knowledge, consent, or permission violated Prof.Cond.R. 1.4(b)
because he failed to explain the matter to her to the extent reasonably necessary to permit her
to make informed decisions regarding the representation, as required by the Rule.
Professional Conduct Rule 1.7 (a) provides:
A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.
Upon the beneficiary's filing of the cross-claim, the respondent's representation of
her as co-plaintiff (along with the trust) in the lawsuit became directly adverse to his
representation of the trust. As such, he could not have reasonably believed that his
representation of her would not adversely affect his representation of the trust. Furthermore,
the beneficiary did not consent to the concurrent representation and, in fact, expressly
requested that the respondent withdraw his appearance. As such, we find that he violated
Prof.Cond.R. 1.7(a). His failure to promptly withdraw as counsel of record upon the
beneficiary's requests also violated Prof.Cond.R. 1.16(a)(3), which provides that a lawyer
shall not represent a client or, where representation has commenced, shall withdraw from the
representation if the lawyer is discharged.
In mitigation and in support of the agreed discipline of public admonishment, the respondent and the Commission agree that the respondent believed that the trustee had obtained the consent of the beneficiary for the respondent to file suit on her behalf against
the tenants, especially since it was not clear whether the damage to the rental property
occurred before or after the beneficiary purchased the property. The trustee later failed to
inform the respondent of the beneficiary's August 27, 1993, objection to being represented
by him. The day after the beneficiary's new counsel filed an appearance on January 19,
1994, the respondent prepared a motion to withdraw as her counsel, which he intended to
have filed the next day but which due to clerical mistake never was. Upon later learning that
the motion had never been filed, the respondent promptly caused a new motion to withdraw
to be filed with the court.
Mitigating circumstances aside, the fact remains that the respondent failed to take the time to obtain the consent or approval of the beneficiary before filing suit on her behalf. He later compounded that mistake by not seeing to it that his appearance was promptly withdrawn after the beneficiary expressed strong and repeated objection to his representation of her and after directly adverse positions developed between the beneficiary and the trust. We note that even though the respondent may not have known right away that his initial motion to withdraw had not been filed, he should reasonably have surmised that something was amiss when the beneficiary's counsel requested, shortly after the January 31, 1994, deposition, that the respondent withdraw his appearances in the case. Due to the respondent's neglect and inattention, both as to the initial filing of the lawsuit and his failure to withdraw promptly when it became apparent that was the proper course of action, we find that the respondent should be reprimanded.
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