In the Matter of Patrick K. Rocchio

943 N.E.2d 797, 2011 Ind. LEXIS 71, 2011 WL 481026
CourtIndiana Supreme Court
DecidedFebruary 11, 2011
Docket98S00-0911-DI-533
StatusPublished

This text of 943 N.E.2d 797 (In the Matter of Patrick K. Rocchio) 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 the Matter of Patrick K. Rocchio, 943 N.E.2d 797, 2011 Ind. LEXIS 71, 2011 WL 481026 (Ind. 2011).

Opinions

PER CURIAM.

This matter is before the Court on the report of Hon. Barbara L. Brugnaux, 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. The Respondent’s 1972 admission to this state’s bar subjects him to this Court’s disciplinary jurisdiction. See Ind. Const. art. 7, § 4.

We find that Respondent, Patrick K. Rocchio, engaged in attorney misconduct that, standing alone, would warrant a sanction in the lowest range. However, Respondent’s conduct during the disciplinary process demonstrates his inability to recognize his clear violations of this state’s disciplinary rules, his contempt for those rules and this disciplinary process, and his lack of appreciation for the role of this Court’s hearing officer and Disciplinary Commission members and staff. In order to protect the people in this state from further misconduct, these substantial aggravating circumstances require suspending Respondent from the practice of law without automatic reinstatement.

Background

The Hearing Officer’s “Findings of Fact and Conclusions of Law” (“Findings”) and [799]*799undisputed contents of exhibits are summarized below.

Count I. In 2008, D.W., a resident of Michigan City, Indiana, was the victim of a serious motor vehicle accident in Indiana. Respondent sent a letter to her based on an article about the accident in a newspaper. The letter stated:

For thirty six (36) years it has been my business to represent people who have been injured as a result of another person’s negligent operation of a motor vehicle. My past professional experience includes successfully representing hundreds of clients in both Michigan and Indiana recovering millions of dollars for deserving clients.
For a free no-obligation conference that will provide you with an explanation of your rights to recover payment of insurance benefits for your medical care expenses, your income loss, and your pain and suffering, please call my law office at [phone number] and schedule a conference at your earliest convenience.

Neither the letter nor its envelope contained the words “Advertising Material,” and the letter was not filed with the Commission.

Count II. Respondent is licensed to practice law in Michigan and practices primarily in that state. Respondent registered his Indiana law license as inactive effective August 24, 2009. After this date, however, his website stated: “With my Indiana law license, I am capable of handling matters related to Indiana law, including real estate transactions, estate planning and probate administration, insurance compensation [sic] bodily injury and property damage claims, business and management law, and Social Security disability claims.” On a second website, Respondent stated: “I am licensed to practice law in both Indiana and Michigan.” Neither site indicated that Respondent’s Indiana license was inactive.1

Violations. The Commission charged and the hearing officer concluded that Respondent violated the following Indiana Professional Conduct Rules:2

Count I: Rule 7.2(c)(3) by using a statement in a public communication that “is intended or is likely to create an unjustified expectation”; Rule 7.2(d)(2) by using a public communication that “contains statistical data or other information based on past performance or prediction of future success”; and Rule 7.3(c) by not including in the letter to D.W. “the words ‘Advertising Material’ conspicuously placed both on the face of any outside envelope and at the beginning” of the letter and not filing a copy of the letter with the Commission.
Count II: Rule 5.5(b)(2), as a lawyer not admitted to practice in law in Indiana, holding himself out to the public or otherwise representing that he is admitted to practice law in Indiana.

The hearing officer found a fact in mitigation to be Respondent’s lack of disciplinary history. The hearing officer found the following facts in aggravation: (1) Respondent lacks insight into his misconduct; (2) [800]*800he is unwilling to accept responsibility for his misconduct; (3) he lacks remorse; (4) he displayed dishonesty in denying he sent the letter at issue in Count I for the purpose of seeking professional employment; (5) he is disrespectful of the Rules of Professional Conduct, particularly those dealing with attorney advertising; (6) he was unable to conduct himself in a rational and civil manner in this proceeding; and (7) he sent an inappropriate email to the hearing officer (with a copy to disciplinary counsel) trying to persuade her to his point of view.

Citing these aggravating circumstances, the hearing officer recommended that Respondent be suspended for a least one year without automatic reinstatement.

Discussion

Jurisdiction and choice of law. Respondent argues that either this Court lacks jurisdiction over his alleged misconduct or that Michigan law should apply. Because Respondent’s Indiana law license was on active status at the time of the events at issue in Count I, this Court’s jurisdiction over these charges is clear. Prof. Cond. R. 8.5(a). His affirmative renewal of his Indiana license, although inactive at the time of the events at issue in Count II, subjects him to this Court’s disciplinary jurisdiction under Rule 8.5(a).

Indiana law also applies to Count II under Rule 8.5(b)(2). While the alleged website violations do not have a specific geographical location, Respondent’s representations regarding his Indiana law license have their predominant effect in Indiana. Indiana has a greater interest than any other jurisdiction in an attorney’s alleged misrepresentations about his or her authority to practice law in the state.

Count I. We reject Respondent’s argument that these charges violate the U.S. Constitution as without merit. Unlike the rule at issue in Shapero v. Kentucky Bar Ass’n, 486 U.S. 466, 108 S.Ct. 1916, 100 L.Ed.2d 475 (1988), Indiana’s rule contains no such blanket prohibition on solicitations. As to his contention that the letter to D.W. was a private correspondence, not a “public communication” within the meaning of Rule 7.2, precedent dictates that this rule applies to letters mailed directly to individuals soliciting their employment. Matter of Murgatroyd, 741 N.E.2d 719 (Ind.2001); Matter of Huelskamp, 740 N.E.2d 846 (Ind.2000).

We agree with the hearing officer that the letter’s assertion that Respondent had succeeded in recovering millions of dollars for hundreds of deserving clients violated Rule 7.2(c)(3) as a statement that “is intended or is likely to create an unjustified expectation” and Rule 7.2(d)(2) as “statistical data or other information based on past performance or prediction of future success.” Matter of Wamsley, 725 N.E.2d 75 (Ind.2000).

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Related

Shapero v. Kentucky Bar Assn.
486 U.S. 466 (Supreme Court, 1988)
In Re Benkie
892 N.E.2d 1237 (Indiana Supreme Court, 2008)
In Re Murgatroyd
741 N.E.2d 719 (Indiana Supreme Court, 2001)
In Re Huelskamp
740 N.E.2d 846 (Indiana Supreme Court, 2000)
Matter of Skozen
660 N.E.2d 1377 (Indiana Supreme Court, 1996)
In Re Wamsley
725 N.E.2d 75 (Indiana Supreme Court, 2000)

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Bluebook (online)
943 N.E.2d 797, 2011 Ind. LEXIS 71, 2011 WL 481026, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-patrick-k-rocchio-ind-2011.