A lawyer's possession of marijuana involves a nexus with the chain of distribution and trafficking of illegal drugs. The impact of that association affects adversely the public's perception of the lawyer's fitness to be an officer of the court. See Matter of McNeil, 704 N.E.2d 114 (Ind. 1998). And "[w]hen the law is broken by one whose job it is to enforce the law, the public rightly questions whether the judicial system is worthy of respect." Matter of McFadden, 729 N.E.2d 137, 138 (Ind. 2000).

The parties propose the appropriate discipline for Respondent's illegal conduct is a public reprimand. The discipline the Court would impose for Respondent's misconduct would likely be more severe had this matter been submitted without an agreement. However, in light of the Court's desire to foster agreed resolutions of lawyer disciplinary cases and the mitigating factors in this case, the Court now APPROVES and ORDERS the agreed discipline.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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The attorney in this case apparently used a standardized non-refundable engagement fee provision in her family law contracts. Both of the contracts described by the Court stated that the non-refundable fee assigned to that case "shall be deemed earned upon commencement of Attorney’s work on the case." The attorney argued that this fee is paid by a client to induce her firm to take a case and thus is earned on receipt. The Court held that it is improper to include this kind of a fee in most cases.


Special circumstances that would not justify a non-refundable fee did not include "representing these clients precluded the Law Firm from representing the opposing parties and required time that the firm otherwise could have devoted to other representations," because this "would be true any time an attorney is engaged by a client." The Court noted that if an attorney is including a non-refundable fee provision as part of the representation agreement, "a lawyer would be well advised to explicitly include the basis for such non-refundability in the attorney-client agreement."

The Court noted that a flat fee agreement could be non-refundable "except for failure to perform the agreed legal services" and indicated that attorneys should advise their clients of this exception. The contracts in this case did not so advise.


Finally, the Court offered guidance on how to avoid the problems it highlights here, while still addressing the concern that a client may demand a refund of a fee as unearned, even though the attorney has begun to open the case.


It goes without saying that attorneys whose fee agreements are for flat fees or otherwise similar to those described above should make appropriate changes to those agreements.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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The failure of out-of-state attorneys and their Indiana co-counsel to comply with the rule governing temporary admission is neither trivial nor rare. Thus far in 2010, the Clerk has issued over 600 notices of automatic exclusion from practice, and this Court has entered orders granting relief from automatic exclusion to over 140 out-of-state attorneys. The need for this would be nearly eliminated if all Indiana co-counsel complied with their ethical duty to ensure that attorneys granted temporary admission in Indiana comply with Admission and Discipline Rule 3(2).

...

Indiana attorneys serving as local counsel for out-of-state attorneys are hereby advised of the importance of their duty to ensure complete and timely compliance with all the requirements of Admission and Discipline Rule 3(2). Indiana attorneys who neglect that duty in future cases may be subject to more stringent discipline, and out-of-state attorneys who fail to comply with this rule may be sanctioned for the unauthorized practice of law in this state.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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Download a copy of this article here