Appendix — In re Sekerez

& 4 = 1 2 ] | Ofiice Supreme Court, US.

FILED

JUL 20 1984

No ALEXANDER L. STEVAS,

- CLERK

In Tue

Supreme Court of the GAnited States

Ocrosper Term, 1984

ZARKO SEKEREZ,

Attorney-Petitioner.

APPENDICES TO THE

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF INDIANA

WILLIAM J. HARTE*

Wuium J. Harre, Lr.

111 West Washington Street

Suite 2025

(312) 726-5015

Attorney for Petitioner

Of Counsel:

JOHN B. AUSTIN * Counsel of Record

——

Midwest Law Printing Co., Chicago 60611, (212) 221-0220

INDEX TO APPENDICES

PAGE

A— Disbarment Order in Indiana Supreme Court . 1

B— Indiana Disciplinary Rules ................ 28

C— Order of October 25, 1982, Indiana Supreme

SR Sous Reeds oeeas bro Onews ohare eR idee 34

D— Denial of Petition for Rehearing, Indiana

ND . CIE cies vice dvesccncecnesctess 36

E—Table of Standards of Proof .............. 37

F— Individual Counts and Finding of the Indiana

ND SIS 008 kbc cbr cces veeviaseees 42

In Tue

Supreme Court of the Gnited States

Octoser Term, 1984

ZARKO SEKEREZ,

Attorney-Petitioner.

APPENDICES TO THE

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF INDIANA

App. 1

APPENDIX A

ATTORNEY FOR RESPONDENT

Mark R. Harris

8585 Broadway, Suite 810

Merrillville, Indiana 46410

FOR THE INDIANA SUPREME COURT

DISCIPLINARY COMMISSION

David B. Hughes

814 LS.T.A. Building

150 West Market Street

Indianapolis, Indiana 46204

IN THE

SUPREME COURT OF INDiANA

IN THE MATTER OF )

) Cause No. 880 S 357

ZARKO SEKEREZ )

DISCIPLINARY ACTION

Per Curiam

This disciplinary matter is before us on a seven-count

Verified Complaint for Disciplinary Action filed against

the Respondent, Zarko Sekerez, by the Indiana Supreme

Court Disciplinary Commission. A Hearing Officer, ap-

pointed by this Court, has conducted a hearing pursuant

to Admission and Discipline Rule 23 and has submitted

his findings of fact. The Respondent now petitions for

App. 2

review of these findings. The Respondent also has filed

a Motion for Oral Argument, a Petition for a Trial de

Novo, and a Petition for Hearing on Constitutional

Challenges. Both parties have submitted briefs in support

of their respective positions. Respondent’s Motion for Oral

Argument is now denied.

At the onset of our review of this case, this Court must

address the manner in which the Respondent petitions for

review and challenges the findings of the Hearing Officer.

Admission and Discipline Rule 23, Section 15, defines the

procedure for review by this Court of our Hearing Of-

ficer’s findings. This provision authorizes a petition for

review and requires a party who challenges the factual

findings to submit with his petition a record of all of the

evidence relating to the challenged factual issue (our em-

phasis). Upon examination of the pleadings filed by Re-

spondent, it appears to this Court that the Respondent

has chosen not to follow this procedure.

Respondent’s ‘Petition for Trial de Novo’”’ and “Peti-

tion for Hearing on Constitutional Challenges” are not in

a form recognized under our rules. However, in that the

issues raised under such pleadings are in the nature of

issues generally presented in a petition for review, they

will be so considered.

On the other hand, the record of evidence presented by

the Respondent is totally inadequate. Respondent, in sup-

port of his petition for review, filed only a transcript of

the testimony of his witnesses. Jr overruling the Dis-

ciplinary Commission’s objection and yequest for an order

from this Court directing the Respondent to supplement

the record to present all evidence on the challenged

issues, this Court noted that

‘“‘ , . the findings of the Hearing Officer are a suffi-

cient basis for the imposition of discipline and that

it is incurnbent on the petitioning party to present

a sufficient record to countermand the significance of

the Hearing Officer’s findings. If the record sub-

mitted is insufficient, the petitioning party must stand

App. 3

on it; if the petitioning party attempts to practice ob-

fuscation, he must accept the consequences.”’

This Court finds that a transcript containing only one

party’s case in chief does not constitute all of the evidence

as required under the above noted rule.

Before reviewing the specific charges, several prelimi-

nary issues raised by Respondent’s pleadings must be con-

sidered. In his Petition for Trial de Novo, Respondent

asserts that he did not receive a fair hearing; he contends

that:

1) The Hearing Officer was biased and prejudiced

against the Respondent;

2) The findings of the Hearing Officer were based

on perjured testimony; and

3) The Hearing Officer did not determine whether

misconduct was proved by a preponderance of the

evidence as required by Admission and Discipline rule

23, Section 14(d).

In support of Respondent’s first contention, Respond-

ent sets forth ten alleged grounds. Respondent generally

avers that the Hearing Officer took an extended length

of time to adopt, in toto, the pronosed findings submitted

by the Disciplinary Commission; the Respondent asserts

that all controverted testimony was found in favor of the

Disciplinary Commission and that several of the findings

were not supported by the evidence. And the Respondent

objects to several rulings during the course of the hear-

ing and the manner in which the hearing was conducted.

The adoption by the Hearing Officer of one party’s pro-

posed findings does not constitute grounds for challenge.

The parties have the same opportunity to present evi-

dence and argue the merits of their respective positions;

it is not error to be persuaded by one of the parties. Jn

re Zinman, (1983) ..... Ind. ....., 450 N.E.2d 1000. Nor does

an adverse ruling constitute error. In re Kessler, (1979)

397 N.E.2d 574, cert. denied 449 U.S. 829.

App. 4

To establish error predicated on the alleged bias and

prejudice of a Hearing Officer (or judge), Respondent must

demonstrate by a valid and complete record that the al-

leged bias or prejudice stems from an extra-judicial source

and results in an opinion on the merits on some basis

other than what was learned through participation in the

case. United States v. Grinnell Corporation, (1966) 384

U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778; United States

v. English (7th Cir.), (1974) 504 F.2d 1254, cert. denied;

Hubbard v. U.S., 419 U.S. 1114, 95 S.Ct. 791, 42 L.Ed.

2d 811. Reviewing that which has been filed in this cause,

this Court finds that Respondent has not demonstrated

bias and prejudice on the part of the Hearing Officer.

As a second contention to his Petition for Trial de Novo,

Respondent further argues that the Hearing Officer based

his findings on allegedly perjured testimony. Though such

a challenge goes to the credibility of witnesses and is to

be properly resolved in this Court’s ultimate review of

the facts, in that the Respondent is contending these

adverse rulings may have a cumulative or corroborative

effect, we would be inclined to consider it at this junc-

ture. However, as with many of Respondent’s other con-

tentions, we find that he had failed to present an ade-

quate record from which this Court can make an informed

decision.

As his third contention, Respondent asserts that he is

entitled to a new hearing by reason of the Hearing Offi.

cer’s failure to rule within thirty days as required under

our rules. This Court has previously held that the expira-

tion of the thirty day time period under Admission and

Discipline Rule 23, Section 14(d), without further show-

ing of impairment, does not establish a constitutional in-

firinity. In re Zinman, Supra., In re Wireman, (1977) 270

Ind. 344, 367 N.E.2d 1368, cert. denied 436 U.S. 904, 98

S.Ct. 2234, 46 L.Ed.2d 402.

Respondent argues that the nine month delay in the

Hearing Officer’s ruling made appeal more difficult and

diminished the recall of events. The proceedings were

App. 5

reported and a complete transcript was available. An ade-

quate record at the time of hearing would have preserved

any issue the Respondent deemed worthy of review by

this Court. There has been no showing that the delay in

ruling destroyed the fundamental fairness of the dis-

ciplinary process. As this Court noted in its prior order,

‘if the record submitted is insufficient, the petitioning

party must stand on it... .”.

In view of the above considerations, this Court denies

the relief sought in Respondent’s Petition for Trial de

Novo.

In his Petition for Hearing on Constitutional Challenges,

the Respondent contends that the Hearing Officer errone-

ously ruled that he could not hear Respondent’s challenges

and did not give the Respondent an opportunity to pre-

sent evidence relating to his constitutional challenges. In

support of this contention the Respondent has submitted

a single page excerpt of the transcript of the hearing,

which reads as follows:

Mr. SEKEREZ: My constitutional issues, Your

Honor.

THE CourT: Okay. I’m trying to figure—I don’t

know what bearing this would have on that cause.

Mr. HuGHEs: The record is full of constitutional

issues. He’s filed a motion to stay, he’s filed them

in the Federal Court, he’s filed them in the State

Supreme Court that Your Honor has no jurisdiction

to determine any constitutional issue, and he has

raised them in his pleadings, in his answer, in his

affirmative defense, and I think that any further

expounding on those, would be superfluous to the

record.

THE Court: I can’t—I think a record has been

made of that fact, and I don’t see any—I can’t make

a decision one way or another on that issue.

With that, I’m going to go back again to the point.

Mr. Hughes, do you want to make an opening state-

ment at all?

ee a

hres

2. ee et ee ee

App. 6

Mr. SEx®REZ: Is it my understanding that Your

Honor is net going to adjudicate on the issues?

THE Cour?: What? The constitutional issues?

Mr. SEKEREZ: Yes, sir.

THE Court: I don’t think I have authority to make

that kind of a ruling on those issues. I’ve made a

ruling of the fact that I do not have authority to do

that.

Predicated on the record submitted, Respondent now

argues that he was not afforded due process at the hear-

ing stage and accordingly should be allowed a further

hearing to present his evidence and make his constitu-

tional arguments. He has presented no authority defin-

ing such due process entitlement.1 Other than the above

cited excerpt, Respondent has demonstrated no offer of

excluded evidence at the trial stage nor advanced an argu-

ment as to why the presentation of constitutional issues

to this Court would be inadequate. This Court cannot sup-

pose a record and argument.

In light of these considerations, Respondent’s request

for a new hearing is denied. However, as previously

noted, the constitutional issues he raises in this pleading

will be treated as if properly raised in a Petition for

Review.

As a final preliminary matter, we note that the Re-

spondent also urges, in a single sentence, that Admission

and Discipline Rule 23, Section 14(f), which provides for

the “preponderance of evidence” standard of proof for

iscipli cases, is in violation of the Due Process Clause

of the Fourteenth Amendment of the Constitution of the

United States. The Respondent makes no attempt to sub-

1 Respondent cites Middlesex County Ethics Committee v.

Garden, Etc., (1982) 102 S.Ct. 2515. This case involved the federal

court’s policy of abstention in state proceedings. It does not define

due process entitlements to hearing. Whether or not a federa!

court would entertain jurisdiction is not an issue before this Court.

App. 7

stantiate this contention. However, in the recent case of

In re Moore, (1983) Ind., ..... i ne , this Court re-

examined the standard of proof applicable to these cases

and determined that the “clear and convincing” standard

of proof more reasonably conforms to our analysis of the

nature of the disciplinary process and follows the weight

of authority. Accordingly, we will review the evidence in

this case under a “clear and convincing” standard.

Turning now to an examination of the charges filed and

the evidence of record, we again note that Respondent

has chosen not to follow the procedure for challenging the

Hearing Officer’s findings of fact. As this Court has stated

in the past, a hearing officer’s findings are treated with

due deference, but they are not controlling. In re Zin-

man, Supra; In re Callahan, (1982) ..... ee , 442

N.E.2d 1092; In re Crumpacker, (1978) 268 Ind. 630, 383

N.E.2d 36. Our rules require, however, that “in the event

a party does not concur in a factual finding made by the

hearing officer . . . , such party shall file with the peti-

tion for review a record of all the evidence before the

hearing officer relating to this factual issue”. Admission

and Discipline Rule 23, Section 15(c). As previously held,

the transcript submitted by the Respondent did not corm-

ply with our rule. Therefore, in that the Respondent has

not provided the requisite record to assert error and in

that the Disciplinary Commission has not submitted any

record, this Court now adopts and accepts as its own the

findings of fact submitted by the Hearing Officer and will

only review the conclusions thereunder and the Respond-

ent’s constitutional challenges.

COUNT I

Under Count I, the Respondent is charged with violat-

ing Disciplinary Rules 7-101(AX1) and 1-102(AX6) by know-

ingly failing to appear at a hearing on behalf of a client.

In accordance with the Hearing Officer’s findings of fact,

we find generally, that the Respondent is a member of

the Bar of this State heretofore admitted on May 19, 1965.

App. 8

On or about January 25, 1979, Katherine Carter went to

the Respondent’s Merrillville Legal Clinic and retained

the Respondent to obtain a court order to allow her to

remove her minor son tc Tennessee. The Respondent

quoted Carter a total flat fee of $200 and collected the

same at their meeting. Carter informed the Respondent

during their conference that she would be moving to Ten-

nessee within a week, and the Respondent advised her

that such a move was proper.

Thereafter, the Respondent filed in the Lake County

Superior Court a petition to remove the minor child. On

February 21, 1979, at Respondent’s request, the petition

was set for a hearing at 11:00 A.M. on March 27, 1979,

as a “secondary setting’. The Respondent never at-

tempted nor made any service of the petition or notice

of the hearing upon Carter’s ex-husbana. The Respond-

ent did not advise Carter of the hearing date. However,

upon calling Respondent’s office, Carter was advised of

the hearing and was told by a secretary that the Respond-

ent was unable to appear with her and that the hearing

would likely be continued.

Carter called the court on the date of the hearing and

was informed that her petition was still set for a hear-

ing that morning and that the primary setting had been

continued as of 10:30 A.M. the previous day. After the

Court attempted and failed to locate the Respondent, the

following entry was made:

“|. . petitioner’s attorney ZARKO SEKEREZ, fails to

appear even though his office was contacted by phone

by the Bailiff of this Court. Neither Atty. Sekerez

or any member of his Legal Clinic appeared. . .”

The Court also advised Carter that if her ex-husband was

not notified of the filing of the petition or the hearing

date, the order could be set aside at a later date and

Carter would have to appear again for a hearing.

Upon her return to Tennessee, Carte: wrote the Re-

spondent requesting the return of the $200 fee The Re-

spondent wrote back refusing any refund and advising her

App. 9

that had he attended the hearing he would have charged

another $250. Eventually, the Respondent returned the

$200 fee but not until Carter filed a grievance against him

with the Disciplinary Commission.

The Respondent does not challenge these facts. He even

concedes that he intentionally did not appear. He contends

that the findings are insufficient to constitute a violation

in that his decision not to attend a ‘“‘secondary setting”

hearing is simply an exercise of professional judgment and

is not intentional failure to seek his client’s lawful ob-

jectives.

Though there are many times in a proceeding when an

attorney has a great deal of latitude in using his profes-

sional judgment for strategic purposes, an intentional deci-

sion to totally ignore a scheduled hearing is not one of

those discretionary matters. It is the lawyer’s paramount

duty to monitor his client’s case and to check with court

records and personnel as to any developments. In this in-

stance the Respondent made absolutely no effort to follow

up on the hearing scheduled as a “second setting’’ but,

as he concedes, chose not to appear. The element of in-

tent of this charge may be established by resort to rea-

sonable inferences based on an examination of the sur-

rounding circumstances. In re Vincent (1978), 268 Ind. 101,

374 N.E.2d 40. Respondent’s intentional failure to act may

be presumed from his voluntary acts. Jn re Price (1982)

Ind., 429 N.E.2d 961; In re Vincent, Supra.

Respondent’s position that Disciplinary Rule 7-101(AX1)

is obviously and clearly unconstitutional is not at all ob-

vious and clear. In that his broad assertion is completely

unsubstantiated by any authority, we find it to be merit-

less. Respondent’s constitutional challenges for vagueness

of Disciplinary Rule 1-102(A\6), which proscribes conduct

that adversely reflects on an attorney’s fitness to prac-

tice law, is similarly unsupported by any authority. A dis-

ciplinary rule will not be found to be overbroad or vague

and, hence, constitutionally infirm, when the subject rule

is commonly understood by reasonable men and particular-

ly by attorneys. See In re Perrello (1979), Ind., 394

App. 10

N.E.2d 127. There is no doubt that an intentional and un-

excused failure to appear for a scheduled hearing on a

client’s case not only constitutes a breach of the attorney-

client fiduciary relationship, but is understood by lawyers

and laymen alike to reflect adversely on the attorney’s

competence and fitness to represent others.

Respondent’s claim that these rules are unconstitutional

because they are being applied in a capricious or arbitrary

fashion is similarly unsubstantiated by any cogent argu-

ment, authority or record and, as such, is meritless.

In light of our considerations and the findings of fact

regarding Count I, we find that the Respondent did en-

gage in the misconduct as charged and that such miscon-

duct is violative of Disciplinary Rules 7-101(AX1) and

1-102(AX6) of the Code of Professional Responsibility.

COUNT II

On or about February 14, 1979, Mark Ward retained

the Respondent to defend him in a suit brought by Sears

Department Store in the Gary City Court. Ward paid the

Respondent a $50 retainer fee and the Respondent agreed

to enter his appearance and to negotiate with the Sears’

ge the remaining balance on the account owed by

ard.

In April of 1979, an agreement was reached whereby

the litigation would remain open and Ward would pay

Sears, through its attorney, $50 per month. The Respond-

ent never thereafter discussed the case with Ward, though

in May, 1979, Ward attempted on several occasions to

learn the status of the case from the Respondent. Com-

mencing in July, 1979, and for several months thereafter,

Ward was absent from work on sick leave, was hospital-

ized, and was unable to make any payments to Sears or

its attorney.

The Respondent, after being advised by the Sears at-

torney that Ward had not paid the agreed monthly pay-

ments, withdrew his appearance for Ward on August 21,

App. 11

1979. The Respondent never attempted to notify Ward

of his contemplated withdrawal and the Respondent knew

that Ward had no knowledge of such intended withdrawal.

Thereafter, Sears reduced its suit to judgment. Ward

returned to work on October 15, 1979. He received his

first pay check on October 30, 1979, to discover that his

wages had been garnished to partially satisfy the Sears

judgment. On several occasions Ward requested the re-

turn of his file from the Respondent, but the Respondent

never complied.

The Respondent contends that he gave notice to the

client. We are unpersuaded by his contention in light of

our earlier determination as to the incomplete record sub-

mitted by the Respondent.

The Respondent further argues that he fulfilled his duty

to his client and that any resulting prejudice was not fore-

seeable but was caused by others, such as the Gary City

Court personnel. Such argument is wholly misdirected be-

cause it fails to answer the specific charge of failing to

take reasonable steps to avoid foreseeable prejudice to

the rights of his client. Withdrawing, without giving notice

to the client, did not give the client an opportunity to

even appear pro se since he was unaware that he was

no longer represented. The resulting sequence of events,

i.e., a judgment and garnishment without the client’s

knowledge, were fully foreseeable and are the sort of

unfortunate consequences which are intended to be

prevented through Disciplinary Rules 2-110(A\(2) and

1-102(AX5). The Respondent’s challenge to the former rule

is unsubstantiated by any record or authority and, as

such, is meritless. As to Disciplinary Rule 1-102(AX5), the

Respondent argues that its application should be restricted

to instances involving “obstruction of justice”. This Court

has repeatedly found conduct which is damaging to the

client to be conduct prejudicial to the administration of

justice. See In re Zinman, Supra; In re Gibson (1983),

Ind., 444 N.E.2d 852; In re Lytal (1983), Ind., 444 N.E.2d

853; In re Morris (1982) Ind., 440 N.E.2d 675. In light

of this established and commonly understood interpreta-

App. 12

tion of the rule within this State, we find Respondent’s

contention unconvincing. Respondent’s contention that Dis-

ciplinary Rule 1-102(A\X5) is unconstitutionally vague and

overbroad is not supported by any authority and is simi-

larly unconvincing.

In accordance with the foregoing considerations and with

the findings of fact under Count II, we find that the

Respondent engaged in the misconduct as charged and

that such misconduct is violative of Disciplinary Rules

2-110(AX2) and 1-102(A\5) of the Code of Professional

Responsibility.

COUNT III

In Count III of the Verified Complaint, the Respond-

ent is charged with making a false advertisement and mis-

leading a client, aiding a non-lawyer in the unauthorized

practice of law and engaging in conduct involving deceit

and misrepresentation.

Adopting the Hearing Officer’s findings we now find

that Susan McCoy responded to an advertisement by the

Respondent in the yellow pages of a telephone directory.

The advertisement was listed under “Merrillville Legal

Clinic” and it advertised “No Charge for Initial Consulta-

tions’. McCoy made an appointment with the Merrillville

Legal Clinic in April of 1979 concerning a dissolution of

marriage. Upon her visit, McCoy was directed by a recep-

tionist to fill out certain forms in order to process the

divorce. She was further instructed by the receptionist

to pay one-half of the attorneys fee of $200. McCoy paid

$100, filled out the forms and was told to return in June

when she had satisfied her six (6) month Indiana residency

requirement. McCoy did not receive an initial consulta-

tion with a lawyer, free or otherwise.

On June 5, 1979, McCoy returned to the Clinic, executed

her petition for dissolution, and was told by the recep-

tionist that it would be sixty days before a final hearing

could be held. McCoy again did not consult with a lawyer.

Thereafter, McCoy called on two occasions to seek legal

App. 13

advise. In both instances she was advised by law students.

In her first call she asked about the consequences of her

husband having hired a lawyer to contest the divorce. She

was told by a law student that there would be an increase

in the attorney’s fee of $20 and, further, that there would

be no legal problem associated with the contest since the

basis for her petition was on “‘irretrievable breakdown’.

McCoy’s next call was to inquire about possible legal prob-

lems resulting from her intended move to California be-

fore the final hearing. A non-lawyer law student advised

her that there would be no legal problem if she returned

for the hearing. McCoy relied upon this advice and there-

after moved to California.

Following the sixty day “waiting period” McCoy made

several telephone calls to the Merrillville Legal Clinic to

determine the hearing date for the divorce. She spoke

with a secretary and a law student. The latter informed

her that she must pay the balance of the fee, $128, which

McCoy did. Thereafter, a secretary in the Clinic advised

McCoy that the final hearing date was September 14,

1979, at 11:00 A.M. in Crown Point, Indiana.

McCoy returned to Indiana as instructed and appeared

in the court at the appointed hour to find that no hear-

ing had ever been set in Crown Point for McCoy’s dissolu-

tion. At that time and place McCoy first met and spoke

with the Respondent. McCoy had never spoken with a

Merrillville Legal Clinic attorney concerning the dissolu-

tion until this meeting with the Respondent on September

14, 1979. He did not have her file and then discovered

that the case had been venued in August to East Chicago

on a motion for change of judge filed by opposing coun-

sel. The Respondent attempted to arrange a hearing on

that day but was unsuccessful. He informed McCoy that

her husband was demanding a cash settlement of approxi-

mately $800 including the husband’s attorney’s fees of

$600. The offer had been made to the Respondent in writ-

ing by opposing counsel on August 6, 1979, but the

Respondent had never communicated this to McCoy. The

Respondent also advised McCoy that, contrary to the law

App. 14

student’s advice, the Respondent could represent her

without her presence. He suggested to McCoy that she

agree to pay the opposing counsel’s attorney’s fees, but

return to California and not pay the fee. He further

agreed to refund his fee.

The Respondent now argues that the evidence is insuf-

ficient to support a finding that McCoy was not given a

free consultation with a lawyer as advertised because, he

contends, the Commission failed to prove that the woman

who saw McCoy at the clinic was not a lawyer. This con-

tention is not convincing. MeCoy went to the Clinic in

response to a specific advertisement for a free initial con-

sultation. She was only asked questions for the purpose

of completing a prepared form. Providing this informa-

tion to a person who is filling out a form does not con-

stitute a consultation. The fact that other clients may

have, as Respondent argues, received the advertised free

consultation with a lawyer has no bearing on the fact that

McCoy did not.

The Respondent also contends that the evidence is in-

sufficient to prove that he aided a non-lawyer in the

unauthorized practice of law. We disagree. There is no

doubt that law students in the Respondent’s legal clinic

answered McCoy’s telephone inquiries concerning legal

matters. The Respondent cannot avoid ali responsibility

by simply arguing that he did not know how his staff

worked. In In re Price, Supra, we analogized the scienter

element of a disciplinary charge to the definition of “know-

ingly”’ as it relates to criminal culpability and found that

the Indiana General Assembly has defined ‘‘knowingly”’

as follows:

(b) A person engages in conduct “knowingly”’ if,

when he engages in the conduct, he is aware of a

high probability that he is doing so. IC 35-41-2-2(b).

Even though Disciplinary Rule 3-101(A) had no require-

ment of specific knowledge, the evidence in this case satis-

fies the above definition. The Respondent was McCoy’s

attorney and yet, from April of 1979, to September 14,

App. 15

1979, the date of their first meeting for a mistaken ap-

pearance in the wrong court, he had never spoken or met

with her. The Respondent’s obvious unfamiliarity with the

case is evidenced by his lack of knowledge as to the status

of the case. It is clear that a pleading had been prepared

and filed and McCoy’s legal questions had been answered

over the telephone. She was made aware on more than

one occasion that she was consulting with law students

working there. Ethical Consideration 3-6, which Respond-

ent cites as authority for delegation of duties to clerks,

secretaries and other lay persons, makes that delegation

conditional upon the lawyer maintaining a direct relation-

ship with his client, supervising the delegated work and

retaining complete responsibility for the work product.

These conditions were not met in McCoy’s case.

We, therefore, conclude that the evidence is more than

sufficient to convince us that the Respondent was aware

of a high probability that his non-lawyer employees had

prepared the McCoy case and had answered her legal

questions.

As with the other disciplinary rules under which he is

being cha , the Respondent challenges the constitu-

tionality of Disciplinary Rules 2-101(A), 3-101(A) and

1-102(AX4) in their application to the Respondent under

the facts of this count. In that these challenges are mere

blanket assertion and are not supported by any author-

ity, we are inclined to find them meritless. We conclude,

from the foregoing findings and considerations, that the

Respondent engaged in the misconduct as charged under

Count III.

COUNT IV

In Count IV the Respondent is charged with neglect-

ing a legal matter entrusted to him and failing to carry

out a contract of employment entered into with a client

in violation of Disciplinary Rules 6-101(AX3) and 7-101(A 2).

On February 13, 1977, Judy Gibboney retained the Re-

spondent’s legal clinic in Indianapolis, Indiana, to handle

App. 16

her divorce. Mr. Gibboney, who accompanied his wife, paid

a $50 retainer and $38 filing fee. David Muir, an attorney

employed by the Respondent, gave Gibboney a receipt in

the name of Respondent’s Indianapolis clinic and prom-

ised that the divorce petition would be filed within a

week.

Muir had been employed by the Respondent only a few

weeks. Pursuant to the Respondent’s instruction to for-

ward all matters to the Merrillville clinic for processing,

Muir forwarded the Gibboney paperwork there on

February 13, 1979.

During the next three weeks, the Gibboneys called

several times to inquire about their divorce petition. Muir

advised them that the delay was caused by typing prob-

lems at the Merrillville Legal Clinic. On March 6, 1979,

the Gibboneys called Muir requesting that he not proceed

with the case and that he return the retainer and filing

fees. Muir informed them that only Respondent can au-

thorize refunds and that they will have to discuss the

matter with the Respondent in Merrillville. Mr. Gibboney

called the Respondent but the Respondent never returned

his calls. Someone at Respondent’s Merrillville office of-

fered to refund the $38 filing fee. After Gibboney filed

a grievance with the Disciplinary Commission, the Re-

spondent refunded $88.

We have examined the foregoing findiigs and are in-

clined to conclude that, although the Respondent’s instruc-

tions as to the operation of the clinic were indirectly

responsible, they are insufficient to prove that the Re-

spondent himself neglected a legal matter or failed to

carry out a contract of employment entered into with a

client. We, therefore, conclude that a violation of Dis-

ciplinary Rules 6-101(A\(3) and 7-101(A\2) has not been

proved.

COUNT V

The findings under Count V show that on July 19, 1978,

Linda Hatcher was involved in a minor automobile acci-

App. 17

dent resulting in $140 damage to her car. On August 8,

1978, James Hatcher, Linda’s husband, filed a small claims

suit in Lake County to recover said damages. James

Hatclier had met the Respondent in September of 1978

when Hatcher had interviewed with the Respondent seek-

ing employment in Respondent’s engineering company.

Later, having read Respondent’s advertisement for ‘‘No

Charge for Initial Consultations” in the yellow pages of

the telephone directory, and on the recommendation of

a friend, Hatcher made an appointment with the Respond-

ent through Respondent’s Merrillville clinic.

On November 29, 1978, after the Respondent failed to

appear for two scheduled appointments, the Hatchers met

with a Mrs. Saviola of the Respondent’s Merrillville Legal

Clinic. They believed that Saviola was a lawyer and

showed her all their documents concerning the case.

Saviola, who was in fact a secretary at the clinic, ex-

amined and retained the documents and recovered a $50

retainer.

Thereafter, the Hatchers received a letter dated Novem-

ber 28, 1978, from the Respondent advising them that he

had accepted the case. On December 29, 1978, the Re-

spondent entered his appearance in the Hatcher case

which had been scheduled for trial on January 3, 1979.

The Respondent failed to appear at the trial and the case

was dismissed without prejudice.

On January 19, 1979, the Hatchers received from the

Respondent’s office a proposed complaint to be filed on

their behalf in the Lake Circuit Court relating to the ac-

cident and seeking compensatory and punitive damages

in excess of $12,500. This cause was filed on February

21, 1979. |

During the first three months of 1979, the Hatchers

repeatedly called the clinic. They also paid an additional

$25 on their account with the Respondent. The Respond-

ent never returned their calls nor answered their letters.

The Hatchers were never able to discuss their cases with

any other attorney at the clinic.

App. 18

On March 13, 1979, the Hatchers received, through the

Respondent’s clinic, a request for production of documents

and a set of 62 interrogatories from defendant’s counsel

in their lawsuit. They tried to schedule an appointment

with the Respondent concerning these, but the Respond-

ent failed and refused to see them or return their calls.

On April 30, 1979, the Respondent wrote the Hatchers

and told them he was withdrawing from their case. His

motion to withdraw was granted by the court on the day

set for a hearing on defendant’s motion to dismiss the

Hatcher case and the Hatchers were granted a 30 day

continuance. They requested the return of their file from

the Respondent, but he refused. On November 13, 1979,

the defendant’s motion to dismiss was granted with prej-

udice.

The Respondent challenges many of the foregoing find-

ings contending that there is evidence to the contrary.

We must again point out that the Respondent has sub-

mitted an incomplete and misleading record containing

only those matters most favorable to his position and ex-

cluding the testimony of the Commission’s witnesses. As

in the earlier instances, we must disregard such record

Furthermore, the existence of evidence which the Re-

spondent claims is contrary to the findings, only goes to

the weight of the evidence and the credibility of the wit-

nesses. The Hearing Officer has concluded, from what was

presented before him, that the foregoing findings are in

fact supported by sufficient evidence. We have adopted

such findings. Accordingly, we conclude that Respondent’s

advertisernent for a free initial consultation was false and

misleading in that the Hatchers never received a consulta-

tion with any lawyer at the Respondent’s clinic. Such con-

duct is in violation of Disciplinary Rule 2-101(A).

The Respondent also contends that there is no finding

to support a conclusion that he refused to return papers

to which the Hatchers were entitled. We disagree. The

clients requested their file and the Respondent refused

to return it, any part of it. It is implicit in this finding

App. 19

that an attorney who has filed a $12,500 complaint for

a client has documents and pleadings which are necessary

for the continued litigation of the matter and to which

such client is entitled. Furthermore, in their initial meet-

ing with Saviola, the Hatchers gave all their documents

to her and she retained the same. It is our conclusion that

the Respondent did refuse to return the Hatcher file to

which the Hatchers were entitled and, thus, withdrew

from a case without taking all reasonable steps necessary

to avoid foreseeable prejudice to them. Such conduct is

violative of Disciplinary Rule 2-110(A)(2).

The Respondent contends that the findings are insuffi-

cient to support a conclusion that he violated Disciplinary

Rule 1-102(AX5) and (6) by delegating the interviewing of

his client to a secretary and by refusing to consult with

the clients. We find to the contrary. Respondent under-

took to represent these clients, allowed their small claim

suit to be dismissed and filed a $12,500 claim without ever

discussing their case with them. He forwarded to these

laymen a set of discovery papers, again without ever dis-

cussing these important matters with them. He never re-

turned their numerous inquiries and letters about their

case. An attorney-client relationship should be one based

on trust. Under these circumstances, Respondent’s treat-

ment of the Hatchers and their case does reflect adversely

on his fitness to practice law, is prejudicial to the ad-

ministration of justice and is violative of Disciplinary

Rules 1-102(AX5) and (6).

Examining the findings in respect to Disciplinary Rule

7-101(AX2) and (8), we find that they establish Respond-

ent’s callous neglect of the Hatcher case. He failed to

answer their numerous inquiries and w-‘hdrew in viola-

tion of Disciplinary Rule 2-110(A\2). By this conduct, he

failed to carry out his contract of employment and there-

by violated Disciplinary Rule 7-101(AX2). Respondent’s

failure to consult with the Hatchers, his withdrawal and

refusal to return their file resulted in a dismissal of their

case. Such conduct prejudiced and damaged the Hatchers

and is thus violative of Disciplinary Rule 7-101(AX3).

App. 20

Once again, the Respondent challenges the constitution-

ality of the Disciplinary Rulég under which he is charged

in a broad and conclusory r. In that his contentions

are conclusory and not suppo by authority

record or convincing argument, Ww

merit.

‘iable

without

COUNT VI

In Count VI of the complaint the Respondent is charged

with improper use of a trade name in connection with the

operation of his Legal Clinics in violation of Disciplinary

Rule 2-102(B); with advertising such trade name and thus

violating Disciplinary Rule 2-101(A); with advertising his

clinies in phlets constituting professional notices not

catestaall t y Disciplinary Rule 2-102, thus violating Dis-

ciplinary Rule 2-102(A).

We find that the Respondent is the sole proprietor of

numerous “legal clinics” located in several cities within

Indiana. At the time of the final hearing in this cause,

he owned such clinics in Merrillville, Indianapolis, La-

fayette, Rensselaer, Ft. Vayne, South Bend, Val

Michigan City, East Chicago and Hammond. All of said

clinics are named for che particular city in which they are

located, e.g., “Merrillville Legal Clinic”, “Indianapolis

Legal Clinic”, “Lafayette Legal Clinic”, ete. The Respond-

ent and his legal clinics engaged in extensive advertising,

particularly in local newspapers and the yellow pages of

the telephone directories published in the various locales.

The Respondent also has advertised his legal clinics

through phlets made available to visitors in several

of his offices. These pamphlets also advertise the clinics,

under the name of the particular city.

Some of rg sacar od past advertisements in news-

mee and via pamphlets contain the name of the clinic

ut do not disclose Respondent’s identity or his associa-

tion with the clinics. The bulk of Respondent’s past and

present newspaper advertising contained both, the clinic

name and the Respondent’s name. However, his name is

App. 21

always smaller, far less bold, and inconspicuous compared

to the print which contains the name of the clinics. Re-

spondent’s past and present advertisements in the yellow

pages of the telephone directory also contain the clinic’s

name and Respondent’s name, and again the printing of

Respondent’s name is always much smaller, far less bold,

and inconspicuous compared to the print which contains

the clinic’s name. Additionally, the clinic’s name frequently

appears in the alphabetical listings of attorneys in the

yellow pages under the first letter of the city in the name

and without Respondent’s name (e.g., ‘“‘Merrillville Legal

Clinic 769-8584’’).

It is Respondent’s contention that the geographic desig-

nations which he used in naming his clinics do not con-

stitute “trade names’’, and that said term has never been

defined in Indiana. We disagree with his position. A trade

— has in fact been defined in Indiana to include the

ocation:

“Trade-names are names which are used in trade

to designate a particular business of certain indi-

viduals considered somewhat as an entity, or the

place at which a business is located, or a class of

goods, but which are not technical trademarks, either

because not applied or affixed to goods sent into the

market, or because not capable of exclusive appropri-

ation, by one as trademarks.” Hartzler v. Goshen

Churn & Ladder Co., 55 Ind.App. 455, 104 N.E. 34

(1914).

The fact that this definition was framed in 1914 does not

make it any less valid as the Respondent seems to argue.

Other jurisdictions have also recognized that the use of

a geographic location as part of the name of a professional

practice constitutes a trade name and have found such

use improper. See Gen. Friedman v. Rogers, 440 U.S. 1,

99 S.Ct. 887, 59 L.Ed.2d 100 (1979) (Optometry); In re

a Legal Clinic, 285 Md. 132, 400 A.2d 1111 (1979)

(Law).

App. 22

It is Respondent’s further contention that both, the pro-

hibition against the use of trade names found in Di -

ciplinary Rule 2-102(B) and the advertising regulations

found in Disciplinary Rule 2-102(A) are unconstitutional

restraints on useful commercial speech which is protected

Pd the First Amendment of the Constitution of the United

tates.

Advertising by attorneys and its regulation has in re-

at ears undergone new examination and re-definition.

espondent places great emphasis on the holding by

re U.S. Supreme Court in Bates v. State Bar of Arizona,

433 U.S. 350 (1977). The issue decided there was an ex-

tremely narrow one, i.e., whether lawyers may advertise

the prices at which certain routine services will be per-

formed. In ruling that the flow of truthful advertisement

concerning the availability and terms of routine legal serv-

ices may not be restrained by the application of an

Arizona Disciplinary Rule which prohibited a lawyer from

publicizing himself as such in advertisements and an-

nouncements, the Supreme Court recognized that adver-

tising by attorneys may be regulated though it may not

be subjected to blanket suppression. The Court listed

several instances of clearly permissible limitations, in-

cluding false, deceptive or misleading advertisements,

restrictions on the time, place and manner of advertis-

ing, or advertising concerning transactions that are

themselves illegal. See Virginia Pharmacy Board v.

Virginia Consumer Council, 425 U.S. 748 (1976), Pitts-

burgh Press Co. v. Human Relations Commission, 413

U.S. 376 (1973). The United States Supreme Court has

ized that advertising for professional services poses

special risks for deception by stating:

Because the public lacks sophistication concerning

legal services, misstatements that might be over-

looked or deemed unimportant in other advertising

— be found quite inappropriate in legal advertis-

Id. at 383. In the Matter of R.M.J., 455 US.

191, 71 L.Ed.2d 64, 102 S.Ct. 929 (1982).

+ eon

App. 23

In In the Matter of R.M.J., Supra, the U.S. Supreme

Court summarized the commercial speech doctrine, in the

context of advertising for professional services, as follows:

Truthful advertising related to lawful activities is en-

titled to the protections of the First Amendment. But

when the particular content or method of the adver-

tising suggests that it is inherently misleading or

when experience has proved that in fact such adver-

tising is subject to abuse, the States may impose ap-

propriate restrictions.

Even when a communication is not misleading, the

State retains some authority to regulate. But the

State must assert a substantial interest and the in-

terference with speech must be in proportion to the

interest served. 455 U.S. at p. 203.

This doctrine emanated from the Court’s earlier hold-

ings in Bates, Supra, in Ohrarik v. Ohio State Bar

Association, 436 U.S. 447, 56 L.Ed.2d 444, 98 S.Ct. 1912

(1978), and Friedman v. Rogers, Supra. In the latter case

the U.S. Supreme Court specifically addressed a prohibi-

tion on the use of a trade name by a professional group,

“Texas State Optical.”

A trade name is, however, a significantly different

form of commercial speech from that considered in

Virginia Pharmacy and Bates. In those cases, the

State had proscribed advertising by pharmacists and

lawyers that contained statements about the products

or services offered and their prices. These statements

were self-contained and self-explanatory. Here, we

are concerned with a form of commercial speech

that has no intrinsic meaning. A trade name conveys

no information about the price and nature of the serv-

ices offered by an optometrist until it acquires mean-

ing over a period of time by associations formed in

the minds of the public between the name and some

standard of price or quality. Because these ill-defined

App. 24

associations of trade names with price and quality in-

formation can be manipulated by the users of trade

names, there is a significant ibility that trade

names will be used to mislead the public.

The possibilities for deception are numerous. The

trade name of an optometrical practice can remain

unchanged despite changes in the staff of optome-

trists upon whose skill and care the public depends

when it patronizes the practice. Thus, the public may

be attracted by a trade name that reflects the reputa-

tion of an optometrist no longer associated with the

practice. A trade name frees an optometrist from

dependence on his personal mputation to attract

clients, and even allows him to assume a new trade

name if negligence or misconduct casts a shadow over

the old one. (Footnote deleted) 440 U.S. at 12, 13.

We find that the same rationale proscribing the use of

a trade name in the professional practice of optometry,

is fully applicable to the practice of law. It is this in-

herently misleading characteristic which is the basis for

our Disciplinary Rule. Ethical Consideration 2-11 of the

Code of Prefesiont Responsibility emphasizes this point

by stating:

The use of a trade name or an assumed name could

mislead laypersons concerning the identity, responsi-

bility and status of those practicing thereunder.

The entire manner of operation of Respondent’s legal

clinics, as revealed by these findings, suggests that there

was in fact a great deal of misunderstanding as to the

identity, responsibility and status of those practicing and

working in the legal clinics.

In light of the foregoing considerations, we conclude that

the Respondent did violate Disciplinary Rule 2-102(B) by

practicing under a trade name and that said Rule is not

constitutionally infirm.

The Respondent is also charged with advertising his

clinics in pamphlets constituting professional notices not

authorized by Disciplinary Rule 2-102, thus violating Dis-

App. 25

ciplinary Rule 2-102(A). In reviewing the subject pamph-

lets it is extremely difficult to find a single fact which

may be called useful commercial information from which

a layperson can make an informed decision. The pamph-

lets do not contain any specific fee lists or credit ar-

rangements. They do not even contain the name of a

lawyer, not to mention his qualifications. They are in fact

urging the public to use the legal clinic by making such

statements as:

“Trouble is, most legal services can set you back an

arm and a leg if you consult a lawyer under normal

legal circumstances. But that may be changing.” Val-

araiso Legal Clinic, Exhibit C-2, p. 2; Indianapolis

gal Clinic, Exhibit D, p. 2.

However, we need not further scrutinize the entire con-

tent of such pamphlets. Even if some of the information

contained therein is constitutionally protected, the fact re-

mains that they are advertised under a trade name and

do not reveal the identity of the lawyers practicing there-

under. The Respondent cannot indirectly accomplish what

is prohibited directly. He cannot practice under a trade

name nor can he advertise such trade name. As found

earlier, the inherently misleading nature of the use of

trade names makes their advertisement subject to state

regulation. See gen. Friedman v. Rogers, Supra. Thus,

we conclude that the publication of advertising —

under the various trade names is violative of Disciplinary

Rule 2-102(A). The Respondent urges that the Rule is con-

stitutionally infirm. We need not go beyond the issue

presented to us here by Respondent’s case. Respondent’s

advertisement of a prohibited trade name is not constitu-

tionally protected and the regulation thereon found in Dis-

ciplinary Rule 2-102(A) is not constitutionally infirm. Re-

spondent’s further challenges to Disciplinary Rule 2-102(A)

and (B) as being overbroad and selectively applied to him

are wholly unsupported by any record or authority and,

accordingly, we find them meritless.

The Respondent argues that the use of trade names in

his practice is not violative of Disciplinary Rule 2-101(A).

App. 26

Said rule proscribes the use of false, fraudulent, mislead-

ing, deceptive, self-laudatory and unfair statements in any

public communication. We have already found, under

earlier counts, that the Respondent violated said Rule by

specific false statements. In this count, however, he is

charged with violating the Rule by advertising his prac-

tice under a trade name. There is no doubt that the use

of a trade name is inherently misleading, particularly as

to the responsibility over employees and the duty owed

by lawyers. The findings under Count III, IV and V por-

tray the operation as one in which professional responsi-

bility and accountability could not be fixed with any one.

The authority, identity and status of the clinics’ staff were

often unclear to the clients. This general lack of profes-

sional accountability is most apparent under Count IV,

where the client’s case was delayed and neglected, a

receipt was given in the name of the Indianapolis Legal

Clinic but yet the attorney was not the Respondent but

an employee operating under the Respondent’s instruc-

tions. This only convinces us further of the inherently

misleading nature of practicing under a trade name. The

use of such a trade name in a public communication is

similarly inherently misleading.

In conclusion, we hold that the Respondent did prac-

tice under a prohibited trade name, did advertise said

trade name in violation of Disciplinary Rules 2-102(A) and

(B); he did use a public communication containing an in-

herently misleading designation in violation of Disciplinary

Rule 2-101(A).

COUNT VII

In Count VII of the complaint, the Commission incorpo-

rates the facts of ali the preceding counts and once again

charges the Respondent with violating some, but not all,

of the same Disciplinary Rules charged under the earlier

counts. We agree with Respondent’s contention that in

effect he is being charged with the same violation twice,

once individually under each specific count and later,

cumulatively under one count. In that the charges and

App. 27

findings under Count VII are repetitive, we find that they

should be dismissed.

Having determined that the Respondent has engaged

in misconduct we must evaluate the appropriate sanction.

Taken individually, the violations may not appear to be

of a magnitude which would indicate a severe sanction.

However, when examined as a whole, the numerous viola-

tions suggest that Respondent’s entire system of clinics

was operated in an unprofessional manner. The Respond-

ent made false advertisements for free initial consulta-

tions which in fact were never given. He allowed non-

professional staff to give legal advice to clients. He

blatantly neglected clients’ cases and refused to return

their files and fees. When complication arose in a case,

the Respondent abandoned his clients.

Respondent contends throughout his pleadings that the

legal clinic is a novel way of providing routine legal serv-

ices at a lower price. That may well be true. However,

the organization set up by the Respondent and the en-

tire mode of operation served to diffuse the professional

responsibility owed by an attorney to his clients. The pro-

fessional service provided was less than adequate. The

novelty in Respondent’s approach was his elevation of

profit over professional performance. The numerous acts

of misconduct convince us that the Respondent has failed

to appreciate the duty he, as an attorney, owes to every

one of his clients, no matter how routine or small their

cases may be.

In fulfilling our duty to set and maintain appropriate

standards for the professional conduct of attorneys, we

conclude that Respondent’s numerous acts of misconduct

found herein render him unfit to continue as a member

of the Bar of this State.

It is therefore ordered that, by reason of the miscon-

duct found under the Verified Complaint filed in this

cause, the Respondent be, and he hereby is, disbarred

from the practice of law in this State.

Costs of this proceeding are assessed against the Re-

spondent.

App. 28

APPENDIX B

Applicable Disciplinary Rules from the

Indiana Code of Professional Responsibility

DR 1-102 MISCONDUCT

(A) A lawyer shall not:

(1)

(2)

(3)

(4)

(5)

(6)

Violate a Disciplinary Rule.

Circumvent a Disciplinary Rule through actions

of another.

Engage in illegal conduct involving moral tur-

pitude.

Engage in conduct involving dishonesty, fraud,

deceit, or misrepresentation.

Engage in conduct that is prejudicial to the ad-

ministration of justice.

Engage in any other conduct that adversely re-

flects on his fitness to practice law.

DR 2-101 PUBLICITY

(A) A lawyer shall not, on behalf of himself, his partner,

associate or any other lawyer affiliated with him or

his firm, use, or participate in the use of, any form

of public communication containing a false, fraudulent,

misleading, deceptive, self-laudatory or unfair state-

ment or claim.

DR 2-102 PROFESSIONAL NOTICES, LETTERHEADS

AND OFFICES

(A) A lawyer or law firm shall not use or participate in

the use of professional cards, professional announce-

ment cards, office signs, except that the following

may be used if they are in dignified form;

(1) A professional card of a lawyer identifying him

by name and as a lawyer, and giving his ad-

dresses, telephone numbers, the name of his law

(2)

(3)

(4)

App. 29

firm, and any information permitted under DR

2-105. A professional card of a law firm may also

give the names of members and associates. Such

cards may be used for identification.

A brief professional announcement card ‘stating

new or changed associations or addresses, change

of firm name, or similar matters pertaining to

the professional offices of a lawyer or law firm,

which may be mailed to lawyers, clients, former

clients, personal friends, and relatives. It shall

not state biographical data except to the extent

reasonably necessary to identify the lawyer or

to explain the change in his association, but it

may state the immediate past position of the

lawyer. It may give the names and dates of

predecessor firms in a continuing line of succes-

sion. It shall not state the nature of the prac-

tice except as permitted under DR 2-105.

A sign on or near the door of the office and in

the building directory identifying the law office.

The sign shall not state the nature of the prac-

tice, except as permitted under DR 2-105.

A letterhead of a lawyer identifying him by

name and as a lawyer, and giving his addresses,

telephone numbers, the name of his law firm,

associates and any information permitted under

DR 2-105. A letterhead of a law firm may also

give the names of members and associates, and

names and dates relating to deceased and re-

tired members. A lawyer may be designated “Of

Counsel” on a letterhead if he has a continuing

relationship with a lawyer or law firm, other

than as a partner or associate. A lawyer or law

firm may be designated as “General Counsel’

or by similar professional reference on stationery

of a client if he or the firm devotes a substan-

tial amount of professional time in the represen-

tation of that client. The letterhead of a law firm

may give the names and dates of predecessor

firms in a continuing line of succession.

(B)

App. 30

A lawyer in private practice shall not practice under

a trade name, a name that is misleading as to the

identity of the lawyer or lawyers practicing under

such name, or a firm name containing names other

than those of one or more of the lawyers in the firm,

except that the name of a professional corporation

or professional association may contain “P.C.”’ or

“P.A.” or similar symbols indicating the nature of

the organization, and if otherwise lawful a firm may

use as, or continue to include in, its name the name

or names of one or more deceased or retired members

of the firm or of a predecessor firm in a continuing

line of succession. A lawyer who assumes a judicial,

legislative, or public executive or administrative post

or office shall not permit his name to remain in the

name of a law firm or to be used in professional

notices of the firm during any significant period in

which he is not actively and regularly practicing law

as a member of the firm, and during such period

vuther members of the firm shall not use his name

in the firm name or in professional notices of the

firm.

DR 2-110 WITHDRAWAL FROM EMPLOYMENT

(A)

In general.

(1) If permission for withdrawal from employment

is ny 2g by the rules of a tribunal, a law-

yer shall not withdraw from employment in a

proceeding before that tribunal without its

permission.

(2) In any event, a lawyer shall not withdraw from

employment until he has taken reasonable steps

to avoid foreseeable prejudice to the rights of

his client, including giving due notice to his

client, allowing time for employment of other

counsel, delivering to the client all papers and

property to which the client is entitled, and com-

plying with applicable laws and rules.

(B)

(C)

App. 31

(3) A lawyer who withdraws from employment shall

refund promptly any part of a fee paid in ad-

vance that has not been earned.

Mandatory withdrawal.

A lawyer representing a client before a tribunal,

with its permission if required by its rules, shall with-

draw from employment, and a lawyer representing

a client in other matters shall withdraw from employ-

ment, if:

(1) He knows or it is obvious that his client is bring-

ing the legal action, conducting the defense, or

asserting a position in the litigation, or is other-

wise having steps taken for him, merely for the

purpose of harassing or maliciously injuring any

person.

(2) He knows or it is obvious that his continued em-

ployment will result in violation of a Disciplinary

Rule.

(3) His mental or physical condition renders it un-

reasonably difficult for him to carry out the em-

‘abo > effectively.

(4) He is discharged by his client.

Permissive withdrawal.

If DR 2-110(B) is not applicable, a lawyer may not

request permission to withdraw in matters pending

before a tribunal, and may not withdraw in other

matters, unless such request or such withdrawal is

because:

(1) His client:

(a) Insists upon presenting a claim or defense

that is not warranted under existing law

and cannot be supported by good faith argu-

ment for an extension, modification, or re-

versal of existing law.

(b) Personally seeks to pursue an illegal course

of conduct.

(2)

(3)

(4)

(5)

(6)

App. 32

(c) Insists that the lawyer pursue a course of

conduct that is illegal or that is prohibited

under the Disciplinary Rules.

(d) By other conduct renders it unreasonably

difficult for the lawyer to carry out his em-

ployment effectively.

(e) Insists, in a matter not pending before a

tribunal, that the lawyer engage in conduct

that is sa to the judgment and advice

of the lawyer but not prohibited under the

Binclalineds ee.

(f) Deliberately disregards an agreement or

obligation to the lawyer as to expenses or

fees.

His continued employment is likely to result in

a violation of a Disciplinary Rule.

His inability to work with co-counsel indicates

that the best interests of the client likely will

be served by withdrawal.

His mental or physical condition renders it dif-

ficult for him to carry out the employment

effectively.

His client knowingly and freely assents to ter-

mination of his employment.

He believes in good faith, in a proceeding pend-

ing before a tribunal, that the tribunal will find

the existence of other good cause for withdrawal.

DR 3-101 AIDING UNAUTHORIZED PRACTICE OF LAW.

(A) A lawyer shall not aid a non-lawyer in the unauthor-

ized practice of law.

DR 6-101 FAILING TO ACT COMPE'TENTLY.

(A) A lawyer shall not:

(1) Handle a legal matter which he knows or should

know that he is not competent to handle, without

associating with him a lawyer who is competent

to handle it.

App. 33

(2) Handle a legal matter without preparation ade-

quate in the circumstances.

(3) Neglect a legal matter entrusted to him.

DR 7-101 REPRESENTING A CLIENT ZEALOUSLY.

(A) A lawyer shall not intentionally:

(1) Fail to seek the lawful objectives of his client

through reasonably available means permitted by

law and the Disciplinary Rules, except as pro-

vided by DR 7-101(B). A lawyer does not violate

this Disciplinary Rule, however, by acceding to

reasonable requests of opposing counsel which do

not prejudice the rights of his client, by being

punctual in fulfilling all professional com-

mitments, by avoiding offensive tactics, or by

treating with courtesy and consideration all per-

sons involved in the legal process.

(2) Fail to carry out a contract of employment

entered into with a client for professional ser-

vices, but he may withdraw as permitted under

DR 2-110, DR 5-102, and DR 5-105.

(3) Prejudice or damage his client during the course

of the professional relationship, except as re-

quired under DR 7-102(B).

(B) In his representation of a client, a lawyer may:

(1) Where permissible, exercise his professional

judgment to waive or fail to assert a right or

position of his client.

(2) Refuse to aid or participate in conduct that he

believes to be unlawful, even though there is

some support for an argument that the conduct

is legal.

App. 34

APPENDIX C

Order Dated October 25, 1982

IN THE

SUPREME COURT OF INDIANA

In THE MATTER Or )

) Cause No. 880 S 357

ZARKO SEKEREZ )

ORDER

Comes now the Indiana Supreme Court |

Commission and petitions this Court to By eed

dent to supplement the record submitted under i hiedaden

= Discipline Rule 23, Section 15, and for an extension

of time.

And this Court, being duly advised, now finds that por-

tion of the petition seeking to require the supplementation

of the record should not be granted in that the findings

of the Hearing Officer are a sufficient basis for the im-

position of discipline and that it is incumbent on the peti-

tioning party to present a sufficient record to countermand

the significance of the Hearing Officer’s findings. If the

record submitted is insufficient, the petitioning party must

stand on it; if the petitioning party attempts to practice

obfuscation, he must accept the consequences.

This Court further finds that the request for an exten-

sion of time should be granted.

App. 35

It Is THEREFORE, ORDERED, ADJUDGED AND DECREED

by this Court that the Disciplinary Commission’s request

for this Court to require Respondent to supplement the

record is hereby denied. It is further ordered that the

Disciplinary Commission is granted thirty (30) days from

this er to file its Brief.

= at Indianapolis, Indiana this 25th day of October,

1982.

/s/ Richard M. Givan

Chief Justice of Indiana

App. 36

APPENDIX D

Order Dated April 23, 1984

IN THE

SUPREME COURT OF INDIANA

IN THE MATTER OF )

) Cause No. 880 S 357

ZARKO SEKEREZ ~~ )

ORDER DENYING POST-JUDGMENT MOTIONS

Comes now respondent and files the following post-judg-

ment motions: “Motion to Stay the Enforcement of the

Order Entered Herein on January 18, 1984”; “Petition for

Rehearing”; “Amended Motion to Stay the Enforcement

of the Order Entered Hereon on January 18, 1984”; “Mo-

tion for Leave to Ap ppear Pro Haec Vice and to Appear

as Additional Counsel”; “Motion for Leave to Supplement

Record”; and “Amendment to Motion for Leave to Sup-

plement Record”.

And this Court, being duly advised, upon consideration

of all pleadings presented under this cause, now finds that

the ick for in the noted pleadings should not

- Is, THEREFORE, ORDERED, ADJUDGED AND DECREED

by this Court that all motions filed by Respondent subse-

uent to this Court’s Order of Disbarment entered on

anuary 18, 1984, are now hereby denied.

DonE at Indianapolis, this 23 day of April, 1984.

/s/ Richard M. Givan

Chief Justice of Indiana

All Justices Concur.

App. 37

APPENDIX E

Standard Of Proof For

Attorney Disciplinary Hearings

As the following table shows, a majority of the states

that have considered the question have held that the

standard of proof required is either clear and convincing

evidence, or at least a standard greater than a mere pre-

ponderance.

Evidence Beyond a Reasonable Doubt

Georgia:

Cushway v. State Bar, 120 Ga. App. 371, 170

S.E.2d 732 (1969), cert. denied, 398 U.S. 910

(1970)

Clear and Convincing Evidence

Alabama:

Trammell v. Disc. Bd. of the Ala. State Bar, 431

S.2d 1168 (Ala. 1983)

Arizona:

In re Lurie, 113 Ariz. 95, 546 P.2d 1126 (1976)

Illinois:

In re Bossov, 60 Il.2d 439, 328 N.E.2d 309, cert.

denied, 423 U.S. 928 (1975)

Indiana:

In re Moore, 453 N.E.2d 971 (Ind. 1983)

Louisiana:

Louisiana State Bar Association v. Edwins, 329

So.2d 437 (La. 1976)

Maryland:

Bar Association of Baltimore City v. Posner, 275

Md. 250, 339 A.2d 657, cert. denied, 423 U.S.

1016 (1975)

App. 38

Minnesota:

In re Gillard, 271 N.W.2d 785 (Minn. 1978)

Mississippi:

Netterville v. Mississippi State Bar, 397 So.2d

878 (Miss. 1981)

New Jersey:

In re Gross, 67 N.J. 419, 341 A.2d 336 (1975)

New Hampshire:

Edes’ Case, 118 N.H. 815, 395 A.2d 498 (1978)

New Mexico:

In re Martin, 67 N.M. 276, 354 P.2d 995 (1960)

North Carolina:

In re Palmer, 296 N.C. 688, 252 S.E.2d 784

(1979)

North Dakota:

Matter of Lovell, 292 N.W.2d 76 (N.D. 1980)

n:

Conduct of Gygi, 273 Or. 443, 541 P.2d 1392

(1975)

Oklahoma:

State Ex rel. Oklahoma Bar Ass’n v. Braswell,

663 P.2d 1228 (Okl. 1983)

Rhode Island:

Carter v. Walsh, 406 A.2d 263, reconsideration

denied, 413 A.2d 83 (R.I. 1980)

South Carolina:

In re Friday, 263 S.C. 156, 208 S.E.2d 535 (1974)

The following states have formulated the standard in

roughly equivalent to “clear and convincing”’ al-

language

though the language may imply a slightly lower standard.

California:

Davidson v. State Bar, 17 Cal.3d 570, 551 P.2d

1211, 131 Cal.Rptr. 379 (1976) (Convincing proof

to a reasonable certainty)

App. 39

Colorado:

People Ex rel. Dunbar v. Weinstein, 135 Colo.

541, 312 P.2d 1018 (1957) (substantial, clear, con-

vincing, and satisfactory)

Florida:

The Florida Bar v. Rayman, 238 So.2d 594 (Fla.

1970) (mere preponderance is not sufficient)

Idaho:

In re May, 96 Idaho 858, 538 P.2d 787 (1975)

(clear showing of bad intent)

Iowa:

Iowa State Bar Association v. Kraschel, 260

Iowa 187, 148 N.W.2d 621 (1967) (convincing pre-

ponderance—less than criminal, but more than

civil)

Kansas:

State v. Turner, 217 Kan. 574, 538 P.2d 966

(1975) (substantial, clear and convincing)

Montana:

In re Young, 77 Mont. 332, 260 Pac. 957 (1926)

(satisfaction to a reasonable certainty)

Nebraska:

State Ex rel. Neb. State Bar Ass’n v. Cook, 194

Nev. 364, 232 N.W.2d 120 (1975) (clear prepon-

derance)

Nevada:

Matter of Kaufman, 93 Nev. 452, 567 P.2d 957

(1977) (higher degree of proof than is ordinary

in civil proceedings)

Pennsylvania:

In re Shigon, 462 Pa. 1, 329 A.2d 235 (1974)

(clear and satisfactory)

South Dakota:

In re Jaquith, 79 S.D. 677, 117 N.W.2d 97 (1962)

(clear, undoubted preponderance)

App. 40

Utah:

In re McCullough, 97 Utah 533, 95 P.2d 13

(1939) (convincing proof and a fair preponderance)

Vermont:

In re Wright, 131 Vt. 473, 310 A.2d 1 (1973)

(clear and free from doubt)

Virginia:

Seventh Dist. Com. of Virginia State Bar v.

Gunter, 212 Va. 278, 183 S.E.2d 713 (1971) (clear

proof but not beyond a reasonable doubt)

Washington:

In re Little, 40 Wash.2d 421, 244 P.2d 255 (1952)

(clear preponderance)

West Virginia:

Com. On Legal Ethics of W. Va. v. Daniel, 235

S.E.2d 369 (W.Va. 1977) (full preponderance and

clear evidence)

Wisconsin:

State v. Heilprin, 59 Wis.2d 312, 207 N.W.2d 878

(1973) (clear and satisfactory—the middle burden

of proof)

Wyoming:

Wyoming Supreme Court Disciplinary Rule 6-h.

a clear, convincing, and satisfactory)

(19

Fair Preponderance of the Evidence

Alaska:

Matter of Robson, 575 P.2d 771 (Alaska 1978)

Arkansas:

Petition of Shannon, 274 Ark. 106, 621 S.W.2d

853 (1981)

Hawaii:

In re Trask, 46 Haw. 404, 380 P.2d 751 (1963)

App. 41

Kentucky:

Kentucky Bar Ass’n v. Franklin, 534 S.W.2d

459 (Ky. 1976)

Maine:

Maine Bar Rules. Rule 7(eX6Xc) [1978]

Massachusetts:

In re Mayberry, 295 Mass. 155, 3 N.E.2d 248

(1936)

Michigan:

Matter of McWhorter, 405 Mich. 563, 284 N.W.2d

472 (1979)

Missouri:

In re Connaghan, 613 S.W.2d 626 (Mo. banc

1981)

New York:

In re Capoccia, 59 N.Y.2d 549, 453 N.E.2d 497,

466 N.Y.S.2d 268 (1983)

Ohio:

Mahoning County Bar Association v. Ruffalio,

176 Ohio St. 263, 199 N.E.2d 396, cert. denied,

379 U.S. 931, 85 S.Ct. 328 (1964)

Tennessee:

Tennessee Supreme Court Rule 9, Disciplinary

Enforcement Section 1.3 (1981)

Texas:

McInnis v. State, 618 S.W.2d 389 (Tex.Civ.App.

1981)

Connecticut and Delaware do not appear to have con-

clusively formulated their standards.

App. 42

APPENDIX F

Individual Counts And Findings

Of The Indiana Supreme Court

Factually, the conduct at issue in the several counts is

rather involved. The problem was compounded by the fact

that a complete transcript of the hearing was not avail-

able, either to the hearing officer during the nine-month

period between the hearing and the issuance of his report,

or to the Indiana Supreme Court during its deliberations

(despite the Court’s statement in its Disbarment Order

that “The proceedings were reported and a complete tran-

script was available’’). See Can Reporter’s Affidavit, at-

tached to this Appendix F. However, since petitioner con-

tends that: (1) in regard to the general factual basis of

his disbarment the standard of proof was constitutionally

insufficient, and (2) the Indiana Supreme Court refused—

on the basis of an unpredictably and unfairly applied

reading of its procedural rule—to exercise either its ac-

knowledged duty to “‘determine issues of fact’ in general

(Matter of Murray, 362 N.E.2d 128, 130 (1977)), or to con-

sider the petitioner’s particular challenges, it is not nec-

essary to become entangled in a detailed review of the

evidence. Nor is it necessary to speculate how the facts

might have been decided or the outcome affected by the

use of a constitutionally adequate standard of proof and

a review of the specifically challenged facts. Santosky v.

Kramer, 455 U.S. 745, 770 (1981).

A brief summary of the counts and the findings of the

Indiana Supreme Court as to each count follows:

Count I arose from petitioner’s failure to appear at a

hearing on a motion for removal from Indiana filed on

behalf of a client. It was only the morning before the

removal hearing that a trial scheduled to take precedence

over the removal hearing was continued. The client ap-

peared in court for the hearing and obtained the relief

App. 43

requested. Petitioner’s judgment that it was not necessary

to ask the client to travel from Tennessee for a hearing

that probably would not take place and his absence from

court were held to constitute a failure to seek his client’s

lawful objective, in violation of D.R. 7-101(A\1)* and to

adversely reflect upon his fitness to practice law, in viola-

tion of D.R. 1-102(AX6).

Count II centered around petitioner’s withdrawal from

representation of a client who had defaulted on an install-

ment agreement petitioner had negotiated with Sears Roe-

buck & Co. In response to Sears’ notices of delinquency,

petitioner mailed letters requesting replies to the client

at the client’s place of employment—where the client had

earlier received an alias summons in the same matter as

well as a notice of a hearing mailed to him by petitioner.

Receiving no reply, petitioner mailed a copy of his with-

drawal to the client—again at his place of business. Unbe-

knownst to petitioner, the client had gone on sick leave

and been hospitalized in another city. Sears’ attorney, to

whom a notice of withdrawal had also been sent, obtained

a judgment on the creditor’s initial suit. Petitioner was

held to have failed, in the course of withdrawing, to take

reasonable steps to avoid foreseeable prejudice to the

rights of the client, in violation of D.R. 2-110(AX2) and

to have engaged in conduct prejudicial to the administra-

tion of justice, in violation of D.R. 1-102(A)5).

Count III concerned a dissolution of marriage and re-

sulted in three findings of misconduct against petitioner:

(1) false and misleading advertisement of a free initial con-

sultation with an attorney, in violation of D.R. 2-101(A);

(2) the allowance of a law student to give a client unsuper-

vised legal advice, in violation of D.R. 3-101(A); and (3)

the advice to the client that she agree to pay opposing

counsel’s fees but then return to California, where she

lived, without first paying the agreed fee, in violation of

D.R. 1-102(AX4).

* The relevant Disciplinary Rules of the Indiana Code of Profes-

sional Responsibility for Attorneys at Law appear in Appendix D.

App. 44

Count IV was dismissed by the Indiana Supreme Court

for legal insufficiency.

Count V sprang from services regarding an accident

claim and provided the basis for the court’s finding that

(1) petitioner’s advertisement (“No charge for initial con-

sultation’’) was false and misieading and that the clients

were never able to consuit with an attorney about their

case, in violation of D.R. 2-101(A); (2) petitioner’s delega-

tion to his secretary of the client-interviewing function and

his refusal to consult with his clients about their cases

constituted conduct adversely reflecting on petitioner’s

fitness to practice law, in violation of D.R. 1-102(A\5) and

(6); (3) petitioner failed to carry out his contract of em-

ployment to the prejudice of his client, in violation of D.R.

7-101(AX2) and (8); and (4) petitioner withdrew from the

case and refused to return the client’s file, in violation

of D.R. 2-110(A\X2).

Count VI found petitioner’s use in telephone directory

yellow pages and newspaper advertisements of such names

for his clinics as “Merrillville Legal Clinic” or “Merrillville

Legal Clinic of Zarko Sekerez”’ to constitute the employ-

ment of trade names, in violation of D.R. 2-102(B) and

to be false, fraudulent, misleading and deceptive, self-

laudatory or unfair, in violation of D.R. 2-101(A). Addi-

tionally, pamphlets made available to visitors to several

of petitioner’s offices were found to constitute a profes-

sional notice not authorized by D.R. 2-102 and thus in

violation of D.R. 2-102(A).

Count VII was dismissed by the Indiana Supreme Court

as being merely duplicative of other Counts.

App. 45

Exhibit A

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

IN RE: )

) No. D-47

ZARKO SEKEREZ, Attorney )

AFFIDAVIT

Comes now Emily Trgovich, and states as follows:

1. I was the official court reporter during the August,

1981 proceedings before the Hearing Officer in the disci-

plinary action against Attorney Zarko Sekerez.

2. I am presently in the process of preparing a full

transcript of the evidence presented at said proceedings.

3. I have presently prepared approximately two hun-

dred ninety-four (294) pages of said transcript and have

been prevented from completing the remaining pages be-

cause of a debilitating illness.

4. I am presently undergoing rehabilitation therapy and

am in the process of completing the balance of the tran-

script with the aid of an assistant.

5. I expect to have the full transcript completed within

thirty (30) days.

Dated this 25th day of May, 1984.

/s/ Emily Trgovich

Affiant

App. 46

STATE OF INDIANA )

COUNTY OF LAKE )

The affiant Emily Trgovich, being duly sworn on oath,

deposes and says that she has read the foregoing repre-

sentations and that all statements therein contained are

true.

/s/ Emily Trgovich

Affiant

Subscribed and sworn to before me this 25th day of

May, 1984.

/s/ Peggy Oram

Resident of Lake County, Indiana

My commission expires:

January 17, 1988.

sone eneleee