In re Fihe

685 N.E.2d 469, 1997 Ind. LEXIS 139, 1997 WL 583680
CourtIndiana Supreme Court
DecidedSeptember 19, 1997
DocketNo. 27S00-9210-DI-878
StatusPublished

This text of 685 N.E.2d 469 (In re Fihe) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Fihe, 685 N.E.2d 469, 1997 Ind. LEXIS 139, 1997 WL 583680 (Ind. 1997).

Opinion

DISCIPLINARY ACTION

PER CURIAM.

The Disciplinary Commission charges that the respondent, John J. Fihe, neglected the legal affairs of a client and misrepresented facts about the representation to a tribunal. A hearing officer appointed by this Court to hear this matter concluded, following full evi-dentiary hearing, that the respondent neglected his client’s case but that he did not misrepresent facts. This matter is now before this Court for final resolution. The respondent’s 1982 admission to this state’s bar confers disciplinary jurisdiction.

We now find that a client suffered injuries when he fell into a hole on a bridge in Marion, Indiana, on August 11, 1986. He retained the respondent to represent him in seeking damages from the city of Marion, Grant County, and any railroad which might have been hable for upkeep of the bridge (hereinafter the “bridge case”). On December 1, 1986, the respondent agreed to represent the chent, initially considering the city of Marion, Grant County, and four separate railroad companies to be potential defendants in the contemplated suit. The respondent also agreed to represent the chent in a second personal injury ease arising out of an automobile accident which occurred on September 16, 1986. After the agreement, the ehent forwarded to the respondent a proposed contract of representation. The respondent felt the proposed contract was unreasonable and did not sign it or discuss it with the ehent. During some of the time the respondent represented the chent, the ehent was incarcerated in the Grant County Jail. Later, the chent moved from Marion to Michigan. Because of these circumstances, the respondent found it difficult to arrange personal meetings with his chent and, in fact, they never met face to face. Instead, they spoke by telephone 15 or 20 times during the entire course of representation.

[470]*470The respondent filed a complaint relative to the client’s automobile accident claim on September 9, 1988, although-the suit was later dropped at the client’s direction. During his preliminary investigation of the bridge case, the respondent obtained the client’s medical records relative to the injuries the client sustained and took photographs of the bridge. He reviewed Marion’s “bridge book” and a maintenance contract between the city and the railroads. After reviewing the materials, the respondent believed Marion and the county were not proper defendants in the contemplated suit.

The respondent prepared a complaint seeking relief from the railroads. A member of his office staff filed it in Grant Superior Court on August 11, 1988. However, the respondent failed to cause a summons to be served on the defendants, a fact which the respondent failed to notice until disciplinary proceedings were initiated in this case. Although the respondent engaged in informal discussions with railroad representatives regarding his client’s case, the railroads did not mention they had not received a summons.

Despite his work on the client’s case, the respondent’s relationship with his client began to deteriorate after the respondent received the client’s proposed representation contract on March 29, 1988. The client claimed that the respondent’s legal work for the city of Marion in other matters prevented him from zealously representing his interests in the bridge case. On October 31, 1989, the client informed the respondent that he had hired other counsel and that his services were no longer needed. The respondent told the client he would forward to him the appropriate ease file materials upon learning his address, but the client failed to inform the respondent of his address.

On February 5, 1990, the client sent a letter to the Commission which alleged that the respondent had a conflict of interest in the bridge case, that he gave the client “the run around,” and that he “doesn’t answer my letters.” In response to the letter, the Commission forwarded a grievance form to the client. The client returned the grievance to the Commission, stating therein that the respondent’s legal work for the city of Marion presented a conflict of interest with his representation of the client in the bridge case, and that the respondent failed to return to the client his ease file after termination of the representation. The grievance did not allege that the respondent failed to effect service of process in the bridge case. Accordingly, in responding to the grievance, the respondent focused on the alleged conflict of interest. The Commission later dismissed the grievance.

Beginning December 5, 1991, the respondent ceased representing the client in the bridge case consistent with a letter he received from the client that day. On December 12, 1991, the railroads filed a motion to dismiss the bridge case, apparently due to the respondent’s failure to issue a summons. The respondent was never forwarded copies of the motion to dismiss. On December 19, 1991, the trial court granted the respondent’s motion to withdraw.

The day after the respondent ceased representing the client, the client again wrote to the Commission, alleging that the respondent had a conflict of interest and that he failed to contact the bridge case defendants for five years. Again, the Commission forwarded to the client a grievance form, which the client filled out and returned to the Commission. Like the letter, the grievance complained of a conflict of interest. The Commission forwarded a copy of the grievance to the respondent on February 10, 1992, requesting a response. The respondent again addressed the conflict of interest issue. The Commission filed a Verified Complaint for Disciplinary Action on October 29, 1992, in which it alleged that the respondent generally neglected his client’s cases and that he knowingly made a false statement of material fact to the Grant Superior Court and to the Commission.

The hearing officer concluded that the respondent “neglected” the client’s bridge case and therefore violated Ind.Professional Conduct Rules 1.3 and 1.4.1 He found further, [471]*471however, that the Commission failed to demonstrate, as it charged in its Verified Complaint, that the respondent violated Prof. Cond.R. 3.3(a)(1) or Prof.Cond.R. 8.1, and that therefore he could not be found to have violated Prof.Cond.R. 8.4(a) and 8.4(d) as those charges related to any alleged misrepresentations to a tribunal or the Commission.2

Where the findings of the hearing officer are unchallenged, we accept them with the understanding that this Court is the final arbiter of attorney misconduct and sanction. In re Stover-Pock, 604 N.E.2d 606 (Ind.1992). The hearing officer found that although the respondent investigated his client’s claims, filed two complaints on his behalf, and later negotiated with the defendants, he failed to ensure a summons had been issued and served on the defendants. That failure ultimately threatened his client’s cause of action. We therefore find that the respondent failed to act with reasonable diligence on behalf of his client in violation of Prof.Cond.R. 1.3. We also find that, between September 1986 and December 1991, the respondent failed to respond promptly to all of his client’s reasonable requests for information about the bridge case and failed to ensure that the client was adequately apprised of the status of the ease. We find, therefore, that he violated Prof.Cond.R. 1.4.

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Related

In Matter of Stover-Pock
604 N.E.2d 606 (Indiana Supreme Court, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
685 N.E.2d 469, 1997 Ind. LEXIS 139, 1997 WL 583680, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-fihe-ind-1997.