The Kidd & McGoff Grievance Show

LAW TIPS: Indiana Law Update Series, Part 1

The Kidd & McGoff Grievance Show

You always return your clients’ calls promptly. Right? You follow-up in a reasonable manner with each case or give notice of the reason for delays. Correct? And, of course, there is never any question of a conflict of interest!!

Our ethics experts, Chuck Kidd and Kevin McGoff, remind practitioners during the 35 Annual Indiana Law UpdateTM of the most common ways in which lawyers get themselves sanctioned. They present poignant ethical vignettes, in a light-hearted manner, that illustrate the pitfalls that can beset any lawyer who is not respectful of his/her ethical responsibilities. Chuck and Kevin are generously allowing us to bring you out-takes from that enlightening Top Ten Grievances session. For instance, following is a review of #8 and #1 on their list of common complaints:

#8.  Conflicts of Interest

This is one of the areas of ethics that concerns practicing lawyers the most, but appears to be one of the least well understood by the bar. In essence, the conflict of interest rules govern different aspects of the lawyer’s duty of loyalty to the client. Some rules act to protect the client from conflicts with other clients, other rules act to protect the client from their own lawyer and still others act to protect former clients from some of the dangers of conflicting interests after the representation is over.

Cases are legion which explore all the contours of this area of ethics. Certainly any written work exploring this subject would be a respectable tome. In the final analysis, these cases revolve around the question: “to whom does the lawyer’s loyalty run?” If the answer isn’t unequivocally, “the client,” then a conflict of interest almost undoubtedly exists.  One case illustrates the extent to which conflict questions can be simultaneously complex and very apparent.

In Matter of Watson, 733 N.E.2d 934 (Ind. 2000), Respondent wrote a will for an 85-year-old man who was the largest single shareholder in an Indiana telephone company. The Respondent’s mother was the second largest shareholder in the company. Subsequently, Respondent prepared for the testator a codicil which granted an option to the company, upon the testator’s death, to purchase these shares at a price reflecting the stated book value. After the testator died, the board of directors elected to exercise the option to purchase the estate’s shares at the listed book value. About two years later, Respondent, his mother, and the company’s remaining shareholders sold all of the company’s stock, realizing an amount per share in excess of two times that paid to the testator’s estate for the shares.

The Supreme Court found that the Respondent knew or should have known that the option for the company to buy the shares at book value was setting a price which could be substantially less than fair market value. Respondent was found to have violated Prof. Cond. R. 1.8(c) because he drafted the codicils when it was reasonably foreseeable that the instruments had the potential for providing a substantial gift to him and his mother. As a result, Respondent was suspended from the practice of law for sixty days.

Additional cases Mr. Kidd and Mr. McGoff use to illustrate the conflict of interest issue are:

  • Matter of Godshalk, 987 N.E.2d 1095 (Ind. 2013)
  • Matter of Ross, 982 N.E.2d 295 (Ind. 2012)
  • Matter of McKinney, 948 N.E.2d 1154 (Ind. 2011)
  • Matter of Pugleise, 941 N.E.2d 1044 (Ind. 2011)

#1.  Neglect & Lack of Communication

By far and away, year after year, this is the most common complaint grievants make about their lawyers … or former lawyers.  Almost invariably, the reported decisions involving this form of misconduct are multiple count matters which result in the lawyer’s suspension or disbarment.  For illustration, what follows is a partial list of recent disciplinary actions involving these elements which resulted in public discipline.

In Matter of Weldy, (49500-1103-DI-120, June 28, 2013), includes six counts from six different clients for various reasons including lack of communication, issues involving attorney’s fees, and making false assertions to the court. Count One, Count Four, and Count Five involve issues of neglect or lack of communication.

In Count One, Client One retained Respondent in a wage claim action, and Respondent thereafter neglected the case and failed to communicate with Client One despite her repeated requests for information. Respondent moved his office without providing a forwarding address, and failed to notify her that her case was subject to T.R. 41(E) call of the docket for lack of prosecution in 2009.

Respondent failed to respond to Client Four and made no substantive progress on Client Four’s wage claim action for more than a year. Respondent failed to withdraw his appearance, and at one point, told Client Four a summary judgment motion had been filed when it had not been filed. The case was dismissed on a T.R. 41(E) call of the docket in late 2009, but Respondent failed to notify Client Four of the dismissal.

Client Five entered into a written contingent fee agreement in a wage claim action, and Respondent failed to respond to Client Five’s requests for information for over a year.

For Respondent’s professional misconduct, the Court suspended Respondent from the practice of law for a period of 180 days, with 90 days actively served and the remainder stayed subject to completion of at least one year probation.

Other recent cases involving neglect and lack of communication are:

  • Matter of Vails, 930 N.E.2d 261 (Ind. 2013)
  • Matter of Fetters, 988 N.E.2d 248 (Ind. 2013)
  • Matter of Denney, 983 N.E.2d 571 (Ind. 2013)
  • Matter of Dittrich, 980 N.E.2d 836 (Ind. 2013)
  • Matter of McCloskey, 976 N.E.2d 1224 (Ind. 2012)
  • Matter of Engebretsen, 976 N.E.2d 1225 (Ind. 2012)
  • Matter of Davis Julian, 973 N.E.2d 571 (Ind. 2012)
  • Matter of Gambill, 973 N.E.2d 573 (Ind. 2012)
  • Matter of Brown, 973 N.E.2d 562 (Ind. 2012)
  • Matter of Baggerly, 954 N.E.2d 447 (Ind. 2011)
  • Matter of Transki, 948 N.E.2d 1181 (Ind. 2011)

We appreciate this advice from Kevin McGoff and Charles Kidd as they continue to help Indiana attorneys to avoid disciplinary complaints. The skillful way they cover disturbing professional issues in their combination live and video presentation compliments this important educational message.  To find  a Video Replay of the 35 Annual Indiana Law UpdateTM at a convenient location near you, Click Here.

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About this Law Tips Faculty Participant:
Charles M. Kidd, Staff Attorney, Indiana Supreme Court Disciplinary Commission, is a former Indiana Deputy Attorney General (1988-1991).  He is author of numerous continuing legal education works including the Survey of Recent Developments in Professional Responsibility in volumes 26 through 28 and 30 through 36 of the Indiana Law Review.

Kevin McGoff, Bingham Greenebaum Doll LLP, Indianapolis, is an experienced professional liability and litigation attorney. He represents attorneys and judges in professional licensure matters, assists lawyers and law firms on issues pertaining to firm management, law firm dissolution and organization, malpractice, legal ethics and related litigation. Kevin has more than 32 years of experience defending lawyers and other professionals in state and federal court at trials and on appeal.

About our Law Tips blogger:
Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page. Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you on Law Tips.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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