Heamon, Matter of

• Decision Date: 21 October 1993
• Docket Number: No. 20S00-9106-DI-425,20S00-9106-DI-425
• Citation: 622 N.E.2d 484
• Court: Indiana Supreme Court
• Parties: In the Matter of Theresa M. HEAMON.

Page 484

622 N.E.2d 484

In the Matter of Theresa M. HEAMON.

No. 20S00-9106-DI-425.

Supreme Court of Indiana.

Oct. 21, 1993.

John Roper, South Bend, for respondent.

Jeffrey D. Todd, Staff Atty., Indianapolis, for The Indiana Supreme Court Disciplinary Com'n.

PER CURIAM.

The Respondent, Theresa M. Heamon, was charged in a three-count Amended Verified Complaint for Disciplinary Action with several violations of the Rules of Professional Conduct for Attorneys at Law. A hearing officer appointed pursuant to Admission and Discipline Rule 23 heard the evidence and tendered his findings of fact and conclusions of law, finding violations of the Rules of Professional Conduct under the first two counts, and dismissing the third count. Respondent petitioned for review, challenging the hearing officer's findings and conclusions as to Count I. The parties have fully briefed their positions.

This Court's review of disciplinary cases is de novo, and we examine all matters presented. Matter of Young (1989), Ind., 546 N.E.2d 819. Our review encompasses the hearing officer's report as well as the entire record tendered in the case. The hearing officer's findings and conclusions, being products of direct observation of witnesses, are correspondingly afforded emphasis. Matter of Smith (1991), Ind., 588 N.E.2d 1268. However, this Court remains the ultimate factfinder and arbiter of misconduct and sanction. Matter of Levinson (1992), Ind., 604 N.E.2d 599; Matter of Smith (1991), Ind., 579 N.E.2d 450. To support a finding of misconduct, this Court must be satisfied that such is based on clear and convincing evidence. Matter of Oliver (1986), Ind., 493 N.E.2d 1237. Respondent's objections to the hearing officer's findings and conclusions will be resolved within the context of this review process.

Count I.

Upon review of all matters submitted before us, this Court finds that, at all times relevant to the incidents herein, Respondent was a part-time public defender and also maintained a private law practice in Elkhart, Indiana.

On October 30, 1989, Respondent agreed to represent Brenda Burris Hout ("Burris") in the dissolution of her marriage. Initially, Respondent set her fee at $350.00, plus $47.00 for filing costs. However, the record reflects dispute as to the fee ultimately agreed upon. The hearing officer concluded that a fee of $250.00 plus filing costs was agreed to after Respondent learned there were no contested matters between Burris and her husband.

At the end of their October 30 meeting, Burris paid Respondent $46.00, and received from Respondent a receipt evidencing payment and indicating a $251.00 balance due. On November 6, 1989, Burris signed a dissolution petition Respondent had prepared, paid Respondent $251.00, and received a receipt evidencing payment and indicating no further balance due. Respondent told Burris that she would file the petition in the appropriate Michigan court the following Monday and that the marriage could be dissolved as soon as 60 days after the filing date.

On December 1, 1989, Burris became concerned after learning her husband had not received service of the dissolution petition. She telephoned Respondent at her private office, leaving a message on the answering machine requesting a return call. Respondent failed to return the call. During the next several weeks, Burris attempted repeatedly, and without success, to reach Respondent by telephone at her private practice. She tried once to reach Respondent at the public defender's office.

In December, 1989, Burris contacted Lois Thompson, a paralegal, and told her of her difficulty in contacting Respondent. Thompson agreed to try to contact Respondent and left a message on Respondent's answering machine in early January, 1990. Respondent returned the call, and, according to Thompson, indicated that the petition had been filed and that she would telephone Burris the following day. Burris waited for a call from Respondent, but none came. Respondent testified that she tried unsuccessfully to reach Burris by telephone several times after speaking to Thompson.

On January 15, 1990, Burris left a message on Respondent's answering machine indicating that she no longer desired Respondent's services and demanding return of the fees she had paid. Respondent failed to return the call or refund any portion of the fees. Respondent never filed a petition for dissolution on behalf of Burris.

At hearing, Respondent testified that she contacted Burris by telephone on November 30, 1989, after realizing that Burris's November 6, 1989 payment of $251.00 did not satisfy the entire fee. Respondent testified that she informed Burris that her fee was $350.00. Respondent further testified that she never agreed to a fee of $250.00, and that her acceptance of the November 6 payment as settling the account was an error. She contends that on November 30, 1989, she in good faith believed she could abandon her contract with Burris since she thought Burris owed her an additional $100.00. She, therefore, asserts her representation of Burris ended on November 30, 1989. The hearing officer heard the conflicting testimony regarding the amount of agreed fee, weighed the various factors, and concluded that Respondent failed to act with reasonable diligence and promptness in violation of Ind.Professional Conduct Rule 1.3. The hearing officer's assessment of the evidence and his judgment in reconciling conflicting testimony carries great weight. Matter of Kern (1990), Ind., 555 N.E.2d 479. We are further persuaded by the fact that Respondent gave Burris two receipts on two separate occasions indicating Respondent's fee was $250.00. This evidence convinces us that the agreed fee was $250.00. Respondent had no reason to abandon representation and therefore had a continuing duty to exercise reasonable diligence in representing her client. The record reveals a complete lack of action on the part of Respondent during her representation of Burris. We thus conclude that Respondent's conduct violated Prof.Cond.R. 1.3.

Respondent also contends that she did not violate Prof.Cond.R. 1.4(a) by failing to keep Burris reasonably informed about the status of her case because Burris could have contacted her at the public defender's office. Burris testified that despite the many messages she left on Respondent's answering machine during several weeks in December of 1989, Respondent never returned her calls. Her testimony is supported by the fact that she contacted paralegal Thompson in another attempt to make contact with Respondent. The evidence clearly indicates Respondent consistently failed to respond to her client's requests for information. We conclude that the findings under this count establish that Respondent violated Prof.Cond.R. 1.4(a) by failing to keep her client informed about her pending case.

Respondent asserts that she worked five and one-half (5-1/2) hours on Burris's dissolution at $90.00 per hour and that no refund was due. We find this assertion unpersuasive. Respondent agreed to represent Burris for $250.00. Respondent did not satisfy the agreement; she did not even file the initial petition. The evidence is clear and convincing that Respondent violated Prof.Cond.R. 1.16(d) in that she failed to refund advance payment of fees that were not earned.

Respondent also challenges the hearing officer's conclusion that she engaged in conduct involving dishonesty, deceit and misrepresentation in violation of Prof.Cond.R. 8.4(c). We find to the contrary. The Respondent lied to her client and to Thompson, indicating to the former that the petition would be filed, and indicating to the latter that it had been filed. The findings establish conclusively that Respondent violated Prof.Cond.R. 8.4(c).

Finally, we also find that Respondent's consistent failure to act on behalf of her client and general neglect of her duties to her client was prejudicial to the orderly administration of justice,...