In re Hefron, 98S00-0006-DI-390.

• Decision Date: 29 July 2002
• Docket Number: No. 98S00-0006-DI-390.,98S00-0006-DI-390.
• Citation: 771 N.E.2d 1157
• Parties: In the Matter of William K. HEFRON.
• Court: Indiana Supreme Court

771 N.E.2d 1157

In the Matter of William K. HEFRON

No. 98S00-0006-DI-390.

Supreme Court of Indiana.

July 29, 2002.

771 N.E.2d 1158

Gordon A. Etzler Hoeppner, Wagner & Evans Valparaiso, IN, for the Respondent

Donald R. Lundberg, Executive Secretary, Indianapolis, IN, for the Indiana Supreme Court Disciplinary Commission.

DISCIPLINARY ACTION

PER CURIAM.

Attorney William K. Hefron agreed to represent a client on an hourly basis to recover assets belonging to an estate. Upon learning that substantial assets could be easily recovered, he insisted the client sign a new fee agreement under which the respondent would receive a significant percentage of the value of the recovered assets, as well as a percentage of the value of the estate. For this professional misconduct, we suspend the respondent from the practice of law in Indiana for six months.

Having been admitted to the bar in this state in 1989, the respondent is subject to our disciplinary jurisdiction. We appointed a hearing officer, who determined that the Commission proved by clear and convincing evidence that the respondent violated Ind. Professional Conduct Rules 1.5(a), which prohibits attorneys from charging an unreasonable fee, and 1.8(a), which prohibits renegotiation of an attorney fee absent certain protections for the client. The respondent, pursuant to Ind. Admission and Discipline Rule 23(15), filed a Petition for Review of the hearing officer's report. The Commission responded, arguing that the respondent's failure to cite to the record is fatal to his allegations of errors in the hearing officer's findings. In his reply, the respondent notes that the Ind. Rules of Appellate Procedure do not govern briefs in disciplinary matters, reiterates his allegations of errors, but still fails to provide consistent citations to the record to support those claims.

771 N.E.2d 1159

Our review of disciplinary cases is de novo in nature, and we will review the entire record presented. Matter of Tsoutsouris, 748 N.E.2d 856 (Ind.2001). The hearing officer's findings receive emphasis due to the hearing officer's unique opportunity for direct observation of witnesses, but this Court reserves the right to make the ultimate determination. Id. Although the formal briefing requirements within the Indiana Rules of Appellate Procedures are not binding in an attorney discipline action, a party seeking review of the hearing officer's report must present to this Court a record, authority, and cogent argument. Matter of Cook, 526 N.E.2d 703 (Ind.1988); Ind. Admission and Discipline Rule 23(15). Where a party cites law or facts within the record, the party should provide appropriate citations. Matter of Cook, 526 N.E.2d at 705

As a preliminary matter, the respondent challenges the hearing officer's appointment as a violation of due process. He contends that the hearing officer should not have served because he: 1) is an attorney subject to the same rules and regulations as the respondent and 2) serves as legal advisor to the Indiana State Police. The respondent further suggests the hearing officer was biased because he was paid by the Disciplinary Commission and chosen from a list maintained by the Commission. The respondent concedes Admis.Disc.R. 23(14)(a) authorized the respondent to seek a change of hearing officer upon a showing of good cause within 10 days after the hearing officer's appointment and that he did not seek such a change until late in the proceeding. The respondent excuses his untimeliness by claiming the 10-day period is unconstitutionally brief.

The respondent fails to provide cogent argument or to cite to any supporting authority, including the constitutional provisions upon which he relies. Nonetheless, we note that hearing officers in disciplinary cases are chosen and appointed by this Court without input from the Commission. Hearing officers are paid from Supreme Court funds. Our rules of procedure provide that appointment of lawyers as hearing officers in disciplinary proceedings is appropriate. Admis.Disc.R. 23(11)(b). In the context of an attorney disciplinary action, due process requires notice and an opportunity to be heard in a fundamentally fair proceeding. Matter of Wireman, 367 N.E.2d 1368, 270 Ind. 344 (Ind.1977). The respondent does not specify how the hearing officer's status as a lawyer or his association with the Indiana State Police prevented him from fulfilling impartially his duties as a hearing officer nor does the respondent establish any other unfairness in the proceeding. Accordingly, we reject the respondent's due process claim.

We find the respondent agreed to represent a client in identifying and recovering assets belonging to the estate of her deceased sister. The respondent initially refused to represent the client on a percentage basis. They agreed on March 2, 1995, to a fee of $110 per hour, with a retainer of $2,000 to be paid in advance, but the agreement was not reduced to writing.

In March and April 1995, the respondent performed little work in the case, but the client worked extensively to find the assets and reported all of her findings to the respondent. On April 24, 1995, the respondent wrote to the client's sister demanding that she return assets properly belonging to the estate. On May 1, 1995, the respondent met with counsel for the client's sister who assured the respondent that his client would cooperate in any effort to identify, collect and administer assets. The respondent gave opposing counsel a lengthy list of suspected assets derived from the client's investigation, and

771 N.E.2d 1160

opposing counsel promised a report and accounting soon

Two days later the client met with the respondent, who presented the client with a written contingent fee calling for a fee of 33-1/3 percent. The client refused to consider such an agreement. The respondent revised the fee agreement to provide for a fee of 21 percent of all assets he recovered for the estate and, in addition, 4 percent of the value of the estate for representing the client, as personal representative, in administering it. The respondent told the client that he was unwilling to perform any further work in the case without a signed contingent fee agreement because he expected the case would go to trial and that it would be a long and difficult battle. The client agreed to consider the contract and left the respondent's office that day without signing it. During the next six weeks, the respondent contacted the client on several occasions and reiterated his unwillingness to proceed with the representation absent a signed contingency fee contract.

On June 13, 1995, opposing counsel delivered a partial accounting of estate assets which proposed that the client's sister return $236,000 in assets to the estate, along with unvalued stock certificates and securities in 13 companies which were later valued at slightly less than $120,000. The respondent did not inform the client about this development until after the client signed the contingency fee agreement and delivered it to the respondent's office on June 22, 1995. On June 29, 1995, opposing counsel provided another accounting to the...