In re Coale, 98S00-9303-DI-309.

• Decision Date: 29 July 2002
• Docket Number: No. 98S00-9303-DI-309.,98S00-9303-DI-309.
• Citation: 775 N.E.2d 1079
• Parties: In the Matter of John P. COALE and Phillip B. Allen.
• Court: Indiana Supreme Court

775 N.E.2d 1079

In the Matter of John P. COALE and Phillip B. Allen.

No. 98S00-9303-DI-309.

Supreme Court of Indiana.

July 29, 2002.

Robert W. Hammerle, Indianapolis, IN, for Respondent John P. Coale.

No appearance, for Respondent Phillip B. Allen.

Donald R. Lundberg, Executive Secretary, Charles M. Kidd, Staff Attorney, Indianapolis, IN, for the Indiana Supreme Court Disciplinary Commission.

DISCIPLINARY ACTION

PER CURIAM.

Because the respondents, both of whom are attorneys licensed in states other than Indiana, solicited potential clients in this state without complying with our rules governing client solicitation, we find today that they should be barred from engaging in acts constituting the practice of law in this state until further order of this Court.

This matter was instituted with the Disciplinary Commission's Verified Complaint for Disciplinary Action, which contained two counts. The first count alleged that the respondents' written solicitations of potential clients violated the Rules of Professional Conduct for Attorneys at Law. The second count, in the alternative, alleged that the respondents engaged in the unauthorized practice of law in this state. Pursuant to Ind.Admission and Discipline Rule 23(11), this Court appointed a hearing officer who, after hearing, submitted to this Court his findings of fact and conclusions of law. At hearing, the evidence submitted consisted solely of the Commission's verified complaints for disciplinary action, the respondents' answers thereto, and supporting briefs. Respondent Allen did not appear at hearing.¹ Respondent Coale appeared at hearing and, pursuant to Admis.Disc.R. 23(15), has petitioned this Court for review of those findings. Pursuant to this Court's directive, the Commission has filed a response brief to the respondent's petition for review. Where a respondent petitions this Court for review of the hearing officer's report, our review is de novo in nature and entails a review of the entire record presented. Matter of Barratt, 663 N.E.2d 536 (Ind. 1996).

Respondent Coale is an attorney licensed in the District of Columbia. Respondent Allen is an attorney licensed in the state of California. Neither is or has ever been admitted to the practice of law in the state of Indiana. Neither has ever sought or obtained admission to the Indiana bar pursuant to a pro hac vice appointment, pursuant to Admis.Disc.R. 3(2).²

The hearing officer found that this case involves the crash of a Kentucky Air National Guard Cargo Plane into certain buildings and public areas in Evansville, Indiana on February 6, 1992. In addition to the air crew members who died, at least 11 people were killed and several other people injured as a result of the crash. By their own admission, the respondents sent videotapes, personal letters and folders containing information about their law firm and a firm brochure to seven people who were widows, widowers or surviving parents of the crash victims or to the crash victims themselves. The hearing officer found that these letters, tapes and folders were sent for the express purpose of attempting to obtain the people receiving the information as clients and were soliciting their business. The material did not include the words "advertising material," and the respondents did not send the material to the Disciplinary Commission prior to the time they sent it to the prospective clients. The material did contain the following text, apparently in reference to other disasters:

"John Coale and Phil Allen came to the aid of thirteen (13) of the victims or their family winning compensation among the highest awards for the case."

"John Coale and Phil Allen represented the families of nine (9) of the victims, helping them through this tragedy and winning for them substantial compensation for their tragic loss."

"... the settlement sum is reported to be the largest product liability settlement in U.S. history . . ."

"Phil Allen worked with Plaintiff's steering committee, filing motions and briefs getting the case ready for trial. The result was a hundred and eighty million dollar settlement ($180,000,000), the largest for a personal injury class action suit at the time."

"John Coale represented families of those killed in the blaze as well as several of those injured. His work help [sic] lead to over two hundred and twenty five million dollars ($225,000,000) in compensation for Plaintiffs in this case."

At the outset, we note that Respondent Coale argued both at hearing and again in his petition for review of the hearing officer's report that this Court does not have jurisdiction over him in this case because he is not a licensed Indiana attorney. We note that this issue was resolved against other out-of-state respondents in a companion state disciplinary case and related federal cases. In the Matter of George W. Murgatroyd, III, and Gerald C. Sterns, 741 N.E.2d 719 (Ind.2001); Sterns v. Lundberg, 922 F.Supp. 164 (S.D.Ind.1996) (complaint alleging lack of personal and subject matter jurisdiction dismissed). Our analysis of this jurisdictional issue in Murgatroyd we think is applicable to this case as well:

Notwithstanding the fact that the respondents hold no Indiana law licenses and therefore are not subject to this Court's usual disciplinary sanctions for licensed Indiana attorneys who engage in professional misconduct, any acts which the respondents take in Indiana that constitute the practice of law are subject to our exclusive jurisdiction to regulate professional legal activity in this state. [Footnote omitted] By directing the solicitations to the prospective clients, the respondents communicated to those persons that they were available to act in a representative capacity for them in Indiana courts to address loss or injury associated with the plane crash. As such, they held themselves out to the public as lawyers in this state when neither was admitted to practice here. [Footnote omitted] Those acts constituted professional legal activity in this state subject to our regulatory authority. [Citation omitted]

Murgatroyd at 721.

Upon his petition for review, filed after the hearing officer's findings of fact were filed with this Court, Respondent Coale argues that the Commission presented no evidence that the respondents sent any communication to any Indiana citizen. That fact, he argues, precludes this Court from finding a violation of Indiana's Rules of Professional Conduct. It is true that the verified complaint, while listing the names of the persons to whom the respondents directed the communications, does not specifically allege that they were residents of Indiana. At the fact-finding stage of these proceedings, however, Respondent Coale never argued that the targets of the solicitations were not specifically proven to be Indiana residents.³ In his initial answer to the charges, filed on April 9, 1993, Respondent Coale never argued the recipients' residence.⁴ This case proceeded for some 9 years before the issue of the recipients' physical location was ever addressed. Upon review of the evidence in this case, the hearing officer concluded that the targets of the solicitations were Indiana residents. Accordingly, we find that the record in this case is sufficient to support the inference that the targets of the respondents' solicitations were Indiana residents.⁵ Further, to allow Respondent Coale, after the close of the fact-finding stage of these proceedings, to now argue as a matter of fact that the targets were not demonstrated to be Indiana residents would be to permit introduction of facts with no opportunity for the Commission to supplement the record with evidence of the recipients' residence. By failing to advance the residence issue until after the fact-finding stage of these proceedings concluded, Respondent Coale waived the argument upon review.

Respondent Coale further argues that there is nothing in the record to indicate that he was involved in any way in sending the offending materials. The respondents' answer, agreed by the Respondent Coale to be evidence in this case, states that the informational materials concerning his law firm, Coale, Allen & Van Susteren, were sent to the persons listed in the verified compliant. He argues that "the partner of a small law firm [like Coale, Allen & Van Susteren] may not be disciplined for the conduct of an (unidentified) individual affiliated with the firm." Even assuming, arguendo, that Coale was not directly responsible for the dissemination of the solicitations, the respondent is responsible for another lawyer's acts if the respondent ratified the conduct involved or timely knew of conduct taken by a lawyer over whom he had direct supervisory authority and failed to take reasonable remedial action. Prof.Cond.R. 5.1(c). Accord, Prof.Cond.R. 5.3, regarding a lawyer's responsibilities regarding nonlawyers employed by the lawyer.

Respondent Coale also asserts that these proceedings violate the respondents' right to due process because "the court that ultimately will decide this matter is the entity that demanded the pursuit of the disciplinary charges against the respondent[s]." He refers to the fact that on March 9, 1992, Chief Justice Randall Shepard and Justice Brent Dickson held a press conference during which they called for an investigation into the advertising and solicitation practices which they perceived as improper. Because of that press conference, Respondent Coale argues that this Court is not an impartial tribunal with regard to this matter, and thus, pursuant to Canon 3 of the Code of Judicial Conduct, must recuse itself from this matter.⁶ We note that we have already disposed of this argument once in this case. Order Denying Motion to Dismiss, issued June 25, 1993 (stating that the respondents' assertion of alleged judicial conduct does not constitute grounds for disqualification). In any event, this Court did not direct the filing of a formal...