In re Bernacchi, 46S00-1512-DI-694.
| Decision Date | 16 October 2017 |
| Docket Number | No. 46S00-1512-DI-694.,46S00-1512-DI-694. |
| Parties | In the MATTER OF: Doug BERNACCHI, Respondent. |
| Court | Indiana Supreme Court |
Attorney for Respondent : Thomas F. Godfrey, Michigan City, Indiana
Attorneys for the Indiana Supreme Court Disciplinary Commission : G. Michael Witte, Executive Director, Aaron Johnson, Staff Attorney, Indianapolis, Indiana
Attorney Discipline Action
We find that Respondent, Doug Bernacchi, committed attorney misconduct by incompetently representing a client, charging an unreasonable fee, improperly using and splitting his fee with a nonlawyer assistant, and attempting to obstruct the disciplinary process. For this misconduct, we conclude that Respondent should be suspended for at least one year without automatic reinstatement.
This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action," and on the post-hearing briefing by the parties. Respondent's 1990 admission to this state's bar subjects him to this Court's disciplinary jurisdiction. See IND. CONST. art. 7, § 4.
The Commission filed its "Verified Complaint for Disciplinary Action" against Respondent on December 14, 2015, and later amended that complaint. On August 10, 2016, Respondent was deposed under oath and admitted to the allegations in the amended complaint. By joint motion of the parties, the final hearing in this matter was converted to a hearing solely on the issue of sanction. That hearing was held on December 19, 2016, and following the submission of proposed findings by the parties, the hearing officer issued her report on June 1, 2017.
Respondent was hired by "Client," who was the guardian of her grandson, to represent her in a pending child support matter against the grandson's parents, one of whom was Client's adult son. A Rule to Show Cause against the parents was pending when Respondent took over the representation.
During this time, Mario Sims was an independent contract paralegal working for Respondent. Sims is not a lawyer.1 Respondent entered into a written fee agreement with Client calling for an $800 "non-refundable" retainer. Respondent instructed Client to pay this money in full to Sims and indicated he would collect his portion from Sims. Client was directed to raise any questions she had about the case with Sims.
Respondent filed appearances on behalf of both Client and her son, who was an adverse party. At the first hearing on the Rule to Show Cause, which ended up being continued, Respondent told the trial court he was there to represent the son. At the second hearing, Respondent told the court that he was representing Client and that he had erred in stating otherwise at the first hearing. However, Respondent proceeded to argue against the son being made to pay child support, telling the court among other things that the son was bedridden and unable to work. At the conclusion of the second hearing, the court dismissed the Rule to Show Cause, citing among other things the confusion over party representation. Client did not appear at either hearing, and Respondent has given inconsistent explanations for her failure to appear, both to the trial court and to the Commission.
After the second hearing, Respondent informed Client he had told the Court her son was on his deathbed and should not be obligated to pay support. Client instructed Respondent to go back to court and correct this, but Respondent refused. Client then requested a refund from Respondent and filed a grievance against him with the Commission. Respondent eventually refunded the fee about two years after Client first requested it. Both before and after issuing the refund, Respondent and others acting on Respondent's behalf repeatedly called Client and attempted to persuade Client to withdraw the grievance in exchange for the refund. Respondent also contacted multiple members of the Commission directly in an attempt to have the disciplinary investigation dismissed, notwithstanding Respondent's awareness that the Commission members were represented by counsel.
Client eventually lost the home she shared with her grandson after she was unable to secure the child support payments from her grandson's parents.
Respondent has filed a petition for review, challenging the hearing officer's findings that he committed misconduct. However, Respondent admitted under oath the truth of the allegations against him and joined in a request before the hearing officer to be heard on the issue of sanction alone. The proposed findings Respondent tendered to the hearing officer likewise acknowledged his violation of the rules as charged. Accordingly, these arguments are waived.2
Respondent further contends the hearing officer erred by not allowing Sims to testify during the final hearing to rebut Client's credibility, but this argument also is unavailing. The hearing officer excluded Sims from testifying because Respondent had dissuaded the Commission from deposing Sims after Respondent admitted the violations and had not included Sims on the witness list for the final hearing. Further, Respondent made no offer of proof during the hearing beyond indicating Sims would testify "for character only" and "not to rebut anything that was done today[.]" (Tr. at 138–141).
Based on the foregoing, we conclude that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:
Turning to the issue of sanction, we agree with the hearing officer that Respondent's lack of prior discipline is a mitigating factor. However, we are less persuaded by some of the hearing officer's other findings in mitigation. The hearing officer found that Respondent sought stress counseling and has taken on partners in his practice to oversee his work, but as the Commission correctly observes in its own petition for review, there was no evidence introduced during the hearing that would support these findings. The hearing officer also found that Respondent "has apologized for his conduct and appears remorseful" for the harm his misconduct caused to Client and her grandson, but the nature of the arguments advanced by Respondent before this Court calls into question the sincerity of those expressions. And while Respondent introduced into evidence two letters attesting to his character and reputation, for reasons described below we do not assign these letters much mitigating weight.
On the other side of the ledger in this case are significant aggravating factors. As found by the hearing officer, Respondent has substantial experience in the practice of law, he...
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In re Steele
...in this matter.[7] But in assigning a sanction, we consider aggravating and mitigating factors as well. See, e.g., Matter of Bernacchi, 83 N.E.3d 700, 703 (Ind. 2017). Here, we simply cannot turn a blind eye to abusive conduct during these proceedings against the Commission's staff, the hea......
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In re Steele
...in this matter.7 But in assigning a sanction, we consider aggravating and mitigating factors as well. See, e.g., Matter of Bernacchi , 83 N.E.3d 700, 703 (Ind. 2017). Here, we simply cannot turn a blind eye to Respondent's abusive conduct during these proceedings against the Commission's st......