In re Steele
| Citation | 181 N.E.3d 976 |
| Decision Date | 04 March 2022 |
| Docket Number | Supreme Court Case No. 20S-DI-474 |
| Parties | In the MATTER OF Michael C. STEELE, Respondent. |
| Court | Supreme Court of Indiana |
RESPONDENT PRO SE: Michael C. Steele, Indianapolis, Indiana
ATTORNEYS FOR INDIANA SUPREME COURT DISCIPLINARY COMMISSION: Adrienne L. Meiring, Executive Director, Charles M. Kidd, Deputy Executive Director, Indianapolis, Indiana
Attorney Discipline Action
The old adage, "a lawyer who represents himself has a fool for a client," often is invoked to illustrate the perils of self-representation. Less frequently have we had occasion to explore the extent to which a self-represented lawyer functions as both a lawyer and a client.
Representing himself in a legal dispute, Respondent communicated directly with the opposing party about the subject of the representation, despite opposing counsel's explicit instructions not to do so. We agree with the hearing officer that Respondent's conduct violated Indiana Professional Conduct Rule 4.2 ; and for this misconduct, we conclude Respondent should be publicly reprimanded.
This matter is before the Court on the report of the hearing officer we appointed to hear evidence on the Indiana Supreme Court Disciplinary Commission's disciplinary complaint filed against Respondent. Respondent's 2005 admission to this State's bar subjects him to this Court's disciplinary jurisdiction. See IND. CONST. art. 7, § 4.
Sometime around 2018, a dispute arose between Respondent and a long-time friend ("Smith"), a Nevada resident, regarding an oral promise Smith allegedly had made to pay Respondent's costs toward an educational program. After Respondent emailed a demand letter to Smith and Smith's counsel ("Kealey") in July 2019, Kealey replied with a directive that Respondent "[d]irect your communications to me and cease all communications with" Smith. Respondent and Kealey then had a series of communications over the next two weeks regarding Respondent's demand and his threatened lawsuit. These communications were not fruitful, and Respondent filed a lawsuit against Smith in Marion Superior Court.
One week after that, Respondent sent a profanity-laced email to Smith threatening to visit Smith in person and demanding that Smith bypass Kealey and discuss the matter with Respondent directly:
Respondent did not have Kealey's consent to communicate directly with Smith. Respondent dismissed the lawsuit in February 2020 without ever having served Smith.
The Commission filed a disciplinary complaint against Respondent in July 2020 alleging Respondent violated Indiana Professional Conduct Rule 4.2, which provides:
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law or a court order.
Following an evidentiary hearing, the hearing officer issued his final report in September 2021, concluding Respondent violated Rule 4.2 as charged and making no recommendation on sanction. The matter has been fully briefed and is now ripe for our consideration.
The Commission carries the burden of proof to demonstrate attorney misconduct by clear and convincing evidence. See Ind. Admission and Discipline Rule 23(14)(g)(1). While our review process in disciplinary cases involves a de novo examination of all matters presented to the Court, the hearing officer's findings receive emphasis due to the unique opportunity for direct observation of witnesses. See Matter of Wray , 91 N.E.3d 578, 582 (Ind. 2018).
Most of the elements of a Rule 4.2 violation are plainly met here. Respondent knew Kealey was representing Smith with respect to Respondent's demand and his subsequent lawsuit. Respondent did not have Kealey's consent to talk with Smith about this subject, and he was not authorized by a court order to do so. And we can readily dispense with Respondent's contention that he was not communicating in the email "about the subject of the representation" but rather "spoke only of matters involving friendship." (Pet. for Rev. at 3). This contention is belied by the language of the email itself, which thrice explicitly requested that Smith bypass Kealey, and by the context in which it was sent, after two weeks of unsuccessful discussions with Kealey and the filing of a lawsuit.
Respondent nonetheless argues he was entitled to send the email to Smith, for two related reasons. First, in reference to Rule 4.2 ’s prefatory clause, he asserts he was not "representing a client" but rather was representing himself; and second, he points to language in the commentary to Rule 4.2 recognizing that parties generally may communicate with one another. For reasons explained below, we find these arguments unavailing.
Many of our disciplinary precedents have found professional misconduct in connection with an attorney's pro se litigation. See, e.g. , Matter of Straw , 68 N.E.3d 1070 (Ind. 2017) (); Matter of Yudkin , 61 N.E.3d 1169 (Ind. 2016) (same); Matter of Relphorde , 644 N.E.2d 874 (Ind. 1994) ().1 We also have found professional misconduct arising from an attorney's actions as a represented party in a matter. See, e.g. , Matter of Powell , 76 N.E.3d 130 (Ind. 2017) (); Matter of Usher , 987 N.E.2d 1080 (Ind. 2013) (multiple violations); Matter of Gaydos , 738 N.E.2d 276 (Ind. 2000) (). These cases, and many others, reflect that an attorney's ethical responsibilities are not limited to the representation of others.
Notably, several of these cases have involved professional conduct rules with language similar to Rule 4.2 ’s prefatory clause. For example, in Matter of Dempsey , 986 N.E.2d 816 (Ind. 2013), and Matter of Richardson , 792 N.E.2d 871 (Ind. 2003), we found violations of Rule 4.4(a)—which provides that "in representing a client" an attorney shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person—for conduct committed by the respondent attorneys as pro se litigants. Similarly, in Matter of Thomas , 30 N.E.3d 704 (Ind. 2015), we found a violation of Rule 3.3(a)(1) for dishonesty in bankruptcy filings by a pro se attorney, even though the commentary to that rule indicates it governs the conduct of an attorney "who is representing a client[.]"2 These results make eminent sense from a policy view; after all, the harms wrought by an attorney's dishonesty toward courts or third parties, or his undue burdening of an opposing party, are the same whether the attorney is representing himself, representing someone else, or being represented by someone else. These cases also implicitly recognize that self-representation is still representation, and an attorney who proceeds pro se in a matter functionally occupies the roles of both attorney and client.
We do not think a different result obtains, or should obtain, under Rule 4.2. The overarching purposes of the rule are "to prevent lawyers from taking advantage of laypersons and to preserve the integrity of the lawyer-client relationship[.]" Matter of Baker , 758 N.E.2d 56, 58 (Ind. 2001). More specifically, we have explained that an attorney's attempt to bypass opposing counsel in order to pressure an opposing party to settle on less favorable terms "undermines the representative adversarial system." Matter of Syfert , 550 N.E.2d 1306, 1307 (Ind. 1990). This is precisely what Respondent did here; and it makes little difference (nor should it) that he did so while representing himself and not someone else.
The commentary to Rule 4.2 reinforces this conclusion, notwithstanding Respondent's reliance on one isolated clause within that commentary. In describing the purposes underlying the rule, Comment 1 refers to "lawyers who are participating in the matter," and not merely lawyers representing others. Comments 2 and 3 emphasize the broad application of the rule in different respects. As Respondent notes, Comment 4 includes a clause recognizing that there are situations where "[p]arties to a matter may communicate directly with each other." But Respondent's reliance on this clause ignores the remainder of the same sentence and the preceding one, delineating what a party's counsel may or may not do in connection with the parties’ own direct communication, when the parties are entitled to make that communication. Accord Matter of Anonymous , 819 N.E.2d 376, 379 n.1 (Ind. 2004) ()....
To continue reading
Request your trial