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Lawyer Discipline Cases Offer No Trend

Lawyers want to know “what’s going on” in the practice of representing lawyers. Well, not all lawyers but some ask from time to time if there are any trends. A variation of the question is something on the order of: is the Court handing out tougher sanctions or has the Disciplinary Commission become more aggressive?

Lawyers want to know “what’s going on” in the practice of representing lawyers. Well, not all lawyers but some ask from time to time if there are any trends. A variation of the question is something on the order of: is the Court handing out tougher sanctions or has the Disciplinary Commission become more aggressive?

I am not sure that there is such a thing as a trend in legal malpractice or lawyer discipline cases. There is no particular misconduct that appears fashionable these days. I have detected no particular seasonal trend in lawyer misconduct. There are certain lawyer habits that it seems will not be broken, no matter how many opinions are written or seminars devoted to the topic. There are recurring issues and many questions asked about lawyer advertising and conflicts of interest.

Most lawyers are developing or revamping their web pages to get the word out and to help develop new clients. How to do so properly and within the boundaries of our advertising rules is carefully considered, by most. You would be hard pressed to find a lawyer that has not pondered a conflict issue to the point of reviewing the rules on the subject and talking it through with a colleague. Interestingly, these two topics, which seem to provoke the most questions, are not the subject of frequent cases. Perhaps lawyers readily recognize these issues, discuss and resolve them before it is a problem, thus keeping the discussion out of the Northeast Reporter system.

The French have a phrase, plus que change, plus que meme. The more things change, the more they remain the same. It has broad application. You can use it when criticizing the government, your new managing partner and, with caution, around the house.

In this millennium we can communicate faster, from any location in the entire world, than was imaginable even a couple of years ago. The accoutrements lawyers carry around to read their e-mail, chat with the spouse and kids, or be paged so as to be able to respond to the moment’s urgency, promise to get smaller and work faster every year, if not every three months.

Despite enough communications tools to fill a purse, briefcase or cover a belt with more hardware than Wyatt Earp carried, neglect or failure to communicate is, year in and year out, the biggest complaint people make about lawyers. More than thirty percent of the grievances received by the Disciplinary Commission for over ten years allege some form of neglect. Even with more toys by which we lawyers have to communicate, one-third of the complaints continue to focus on the failure to do so. For some this is not a trend as much as a way of life it seems. Plus que change, plus que la meme.

For the most part, the Disciplinary Commission does not get involved in fee disputes. It does not serve as a collection agency or a small claims court. However there are several recent instances wherein fees are at issue.

There is a disciplinary case in litigation right now where a lawyer has been charged with various rule violations over billing issues. The forty-eight page Verified Complaint alleges violations for billing in quarter hour increments, charging a lawyer’s rate for tasks that were in the nature of clerical or support staff work, such as copying files and taking them to the post office to mail to the client, setting up files and preparing appearances. The lawyer has been charged with billing a former client for work performed after being discharged. This is frowned upon and ranks a very close second to billing a client for responding to the disciplinary grievance that client has filed. The Commission tends to be interested when it gets wind of these practices.

In a recent case, two lawyers were reprimanded for not promptly paying out a settlement to a client with whom they had a fee dispute over only a portion of the proceeds.

There are common themes in the fee cases the Commission takes on. There is typically an element of a client being harmed, and not just mad about a high legal bill. Also, the facts tend toward lawyer overreaching; changing a fee agreement mid-stream, overcharging or, back to neglect, taking someone’s money and not doing the work.

There is one trend of which Indiana lawyers should be proud. The number of grievances filed with the Commission has remained constant over the past twelve years. There are 17,101 active lawyers today. In 1997 there were 13,414 of us. Despite this dramatic increase in our ranks, the number of grievances filed annually has consistently hovered around 1600 for every year. There may be many explanations for this fact, one of which is that the Indiana Bar has done an exemplary job of adhering to the oath, and following the Rules of Professional Conduct.

  • Of Counsel

    Kevin concentrates his practice on assisting lawyers and law firms with risk management and professional liability issues. He also serves as General Counsel to Bingham Greenebaum Doll LLP.

    Kevin represents attorneys and judges in ...

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