Anonymous, Matter of

• Decision Date: 08 September 1995
• Docket Number: Nos. 45S00-9305-DI-523,71S00-9406-DI-533,s. 45S00-9305-DI-523
• Parties: In the Matter of ANONYMOUS.
• Court: Indiana Supreme Court

Page 67

655 N.E.2d 67

In the Matter of ANONYMOUS.

Nos. 45S00-9305-DI-523, 71S00-9406-DI-533.

Supreme Court of Indiana.

Sept. 8, 1995.

PER CURIAM.

The Disciplinary Commission filed two verified complaints for disciplinary action in separate, unrelated cases alleging similar violations of the Rules of Professional Conduct for Attorneys at Law. We now find that the respondent in each case engaged in misconduct as charged and that a private reprimand is the appropriate disciplinary sanction in each case. Given our desire to educate the Bar and the similarity of the cases presented, we herein more fully set forth the facts and circumstances of each case while preserving the confidential nature of the discipline.

I

In the first case, the Commission alleged that the respondent violated Ind.Professional Conduct Rules 1.7 ¹ and 1.9(a) ² by undertaking impermissible serial representations. This Court appointed a hearing officer pursuant to Ind.Admission and Discipline Rule 23, Section 11, who, after full hearing, tendered her findings of fact and conclusions of law, therein concluding that the respondent engaged in misconduct and recommending a private reprimand. Both the Commission and the respondent have petitioned this Court for review of the hearing officer's report. The Commission asks this Court to review only the hearing officer's recommended sanction. The respondent challenges certain factual findings and legal conclusions of the hearing officer. This Court is not bound by the report of hearing officer, although, since it is a product of direct observation of witnesses, we will give it appropriate emphasis. In re Gemmer (1991), Ind., 566 N.E.2d 528. Our review of disciplinary cases is de novo and entails an examination of the entire record submitted. In re Blackwelder (1993), Ind., 615 N.E.2d 106. Misconduct must be proven by clear and convincing evidence. Admis.Disc.R. 23(14)(f). The petitions for review will be addressed within the context of this review process.

We now find that, in 1988, respondent was a member of a law firm. Late that year, a company (the "company") retained the respondent to defend it against certain grievances initiated by a labor union (the "union"). The union alleged that the company failed to properly contribute funds pursuant to a collective bargaining agreement. Specifically, the respondent was retained to represent the company regarding several issues between the two parties that were to be arbitrated. Both parties recognized that an individual holding the position of trustee and financial secretary of the union (the "trustee") was a key witness, since he negotiated the collective bargaining agreement between the company and the union. The respondent met with the trustee on December 22, 1988, as well as on several other occasions in late 1988, and discussed the pending grievances. At a deposition, the trustee testified that he informed the company it would not have to contribute funds pursuant to the agreement. He was effectively discharged as a trustee of the union in late 1988, apparently due to the union's perception that he provided certain information detrimental to its position in the grievance litigation. He formally resigned from his elected position of financial secretary in February, 1989.

At hearing of this matter, the trustee testified that, on December 22, 1988, he met with an attorney in the respondent's firm to inquire about representation in a wrongful discharge suit he intended to file against the union. The trustee was referred to the respondent because the respondent handled the bulk of the firm's labor matters. The respondent and the trustee met later that day, and, in addition to discussing the upcoming labor grievance proceedings, discussed the trustee's termination from his positions at the union and the possibility of filing a lawsuit against the union's president for wrongful termination. The respondent gave the trustee a document regarding RICO actions and assisted him in revising a statement the trustee planned to deliver to union members.

On December 27, 1988, the respondent's law firm opened a client file for the trustee. The file jacket indicated that the firm represented him. A code on the file reflected the respondent's having opened the file. The respondent and the trustee subsequently met two more times. The trustee testified that, at one such meeting, they discussed a possible contingency fee arrangement. The trustee testified that the respondent told him he thought his case may have been worth one million dollars. In addition, the trustee sent the respondent audio tapes of his recollection of the events surrounding his termination from the union, and wrote at least five letters to the respondent. These materials were placed in the trustee's file. On March 17, 1989, the respondent posted a billing slip to the file, memorializing a March 17, 1989 meeting between them. The respondent and the trustee never entered a formal employment agreement. The respondent never billed the trustee, nor did he ever expressly accept employment as the trustee's attorney.

The respondent ceased employment with the law firm in May, 1989, and began practicing law in another office nearby. Upon learning that the respondent no longer was associated with the firm, the trustee retrieved his case file from the firm's offices, believing that he was the respondent's client. However, the trustee never delivered his file to the respondent's new office, nor did he thereafter communicate directly with the respondent regarding his case. In 1990, the union settled its dispute with the company. Despite the meetings between the respondent and the trustee, the respondent did not use the trustee as a witness in the grievance proceedings.

On May 3, 1990, the respondent filed a fraud action on behalf of the company against the trustee and others, alleging that the trustee had fraudulently represented to the company that it would not have to contribute to the union's benefit plan. The respondent moved to withdraw his appearance on July 25, 1991 because of the appearance of impropriety.

In his petition for review, the respondent contends that the hearing officer erroneously concluded that the trustee and the respondent formed an attorney-client relationship. He argues that no such relationship was ever formed between them, and thus that no conflict could have arisen. Specifically, the respondent asserts that he met with the trustee solely because the trustee was the "key witness" in the labor grievance. He claims that he met with the trustee in late 1988 only to go over his testimony for the grievance proceedings and not to discuss the trustee's employment problems. The respondent claims indicia of an attorney-client relationship are lacking and that the trustee did not even have a legal basis for a wrongful discharge suit.

Creation of an attorney-client relationship is not dependent upon the formal signing of an employment agreement or upon the payment of attorney fees. An attorney-client relationship need not be express, but may be implied by the conduct of the parties. Hacker v. Holland (1991), Ind.App., 570 N.E.2d 951, 955. Such a relationship exists "only after both attorney and client have consented to its formation." Id.

Attorney-client relationships have been implied where a person seeks advice or assistance from an attorney, where the advice sought pertains to matters within the attorney's professional competence, and where the attorney gives the desired advice or assistance. Bays v. Theran (1994), 418 Mass. 685, 639 N.E.2d 720; McVaney v. Baird, Holm, McEachen, Pedersen, Hamann & Strasheim (1991), 237 Neb. 451, 466 N.W.2d 499; Committee on Professional Ethics and Conduct of the Iowa State Bar Association v. Wunschel (1990), Iowa, 461 N.W.2d 840. See also People v. Morley (1986), Colo., 725 P.2d 510 (the relationship may be established when it is shown that the client seeks and receives the advice of the attorney on the legal consequences of the client's past or contemplated actions). An important factor is the putative client's subjective belief that he is consulting a lawyer in his professional capacity and on his intent to seek professional advice. Dalrymple v. National Bank & Trust Co. of Traverse City (1985), D.C.Mich., 615 F.Supp. 979, citing Westinghouse Electric Corp. v. Kerr-McGee Corp. (1978), 7th Cir., 580 F.2d 1311, cert. denied, 439 U.S. 955, 99 S.Ct. 353, 58 L.Ed.2d 346. See also People v. Bennett (1991), Colo., 810 P.2d 661 (the proper test is subjective; an important factor is whether the client believed the relationship existed); State v. Hansen (1993), 122 Wash.2d 712, 720, 862 P.2d 117 (client's belief will control where it is reasonably formed based on attending circumstances, including attorney's words and actions); In re Johore Investment Co. (U.S.A.), Inc. (1985), D.Hawaii, 157 B.R. 671 (in the preliminary consultation context, the existence of the relationship rests upon the client's belief that he is consulting the lawyer in a professional capacity and his manifested intention to seek legal advice).

The hearing officer specifically found that an attorney-client relationship was implied from the parties' conduct. There is ample evidence in the record indicating that the respondent met with the trustee on several occasions and discussed a potential wrongful termination suit, a matter within the respondent's professional competence. The trustee testified that the respondent eventually concluded that the trustee had a strong wrongful termination case. The respondent testified that he did not consider the trustee to be his client. ³ There is, however, evidence tending to establish that both the respondent and the trustee consented to formation of an attorney-client relationship. ⁴ We are convinced that the respondent provided advice to the trustee regarding matters within his professional competence. It is clear that the trustee thought the...