Thursday, December 21, 2017

Lies Exacerbates Neglect

A suspension of at least 90 days has been ordered by the Indiana Supreme Court

Respondent agreed to represent “Client” in an appeal from the denial of Client’s petition to expunge her misdemeanor theft conviction. Respondent supervised a pro bono expungement clinic sponsored by Ivy Tech and staffed by students, but Respondent had never done an appeal. Respondent filed a notice of appeal in September 2015, and notice of completion of the transcript was filed in November 2015, making an appellant’s brief due in December 2015.

Respondent did not timely file an appellant’s brief. Thereafter, Client emailed Respondent several times to inquire about the status of her appeal. Twice, Respondent replied by falsely implying that a brief had been filed.

In March 2016, an entry was made on the online appellate docket indicating the appeal was being transmitted for dismissal due to the failure to file an appellant’s brief. Client saw this entry and emailed Respondent, demanding an explanation and a file-marked copy of the brief Respondent claimed to have filed. Respondent did not promptly reply to this email. Instead, Respondent tendered to the Court of Appeals a motion for leave to file the appellant’s brief belatedly. In that motion, Respondent falsely stated that he had prepared an appellant’s brief “which was to be appended to transcript and notice of appeal but was apparently not attached.” This tender was defective for multiple reasons and was not accepted by the Clerk for filing.  Meanwhile, Respondent emailed a copy of the tendered appellant’s brief to Client, who replied by pointing out to Respondent that the brief had not been accepted for filing.

On March 31, 2016, the Court of Appeals dismissed Client’s appeal with prejudice. Respondent did not inform Client of the dismissal or take any steps to have the appeal reinstated.

The client filed a bar complaint.

The court

Respondent has no prior discipline, and standing alone his neglect of a single appeal might have warranted a comparatively minor sanction. See, e.g., Matter of Brown, 973 N.E.2d 562 (Ind. 2012) (approving an agreed 30-day suspension with automatic reinstatement for neglect of a criminal appeal). But Respondent’s pattern of dishonesty is very troubling and elevates this into a much more serious offense. Respondent lied to Client, to the Court of Appeals, and to the Commission, all in an attempt to cover up his neglect. Moreover, Respondent has not accepted responsibility for any wrongdoing or demonstrated any insight into his misconduct. Indeed, Respondent elected not to participate in proceedings before the hearing officer, and the approximately one-page sanction brief Respondent filed with this Court is devoid of any mention of his multiple dishonest acts. Under these circumstances, we agree with the Commission that Respondent should be suspended for at least 90 days without automatic reinstatement.

(Mike Frisch)

Bar Discipline & Process | Permalink


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