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In re McClellan9/7/2001
DISCIPLINARY ACTION
The respondent, Donald K. McClellan, asserted in a petition filed before the Indiana Court of Appeals that an earlier decision by that Court "reads like a bad lawyer joke . . ." Today we approve a Statement of Circumstances and Conditional Agreement for Discipline between the respondent and the Indiana Supreme Court Disciplinary Commission calling for a reprimand of the respondent for that statement.
Having been admitted to the bar of this state in 1981, the respondent is subject to our disciplinary jurisdiction.
The undisputed facts are that the respondent filed an interlocutory appeal on behalf of a client against whom a default judgment had been entered in a personal injury case. The Court of Appeals, in an unpublished decision issued February 16, 1999, affirmed the default judgment. In doing so, the Court rejected the respondent's argument that the plaintiffs' lawyer had broken his promise to not seek a default judgment against the respondent's client. The Court ruled that the plaintiffs had promised only to refrain from seeking a default judgment without first giving the defendants thirty days to appear. The Court of Appeals further concluded that the plaintiffs had fulfilled that promise.
On March 18, 1999, the respondent filed a petition for rehearing in the Court of Appeals. In that petition, the respondent wrote:
I. SADLY, THE RAMIFICATIONS OF THE COURT'S DECISION READS (sic) LIKE A BAD LAWYER JOKE . . . `WHEN IS IT OKAY FOR A LAWYER TO LIE? WHEN HIS LIPS ARE MOVING TO AN INSURANCE ADJUSTER . . . .'
This Court's opinion continues the perception that was discussed extensively in the Indiana Lawyer, March 3-16, 1999, where the legal profession is attempting a public relations campaign concerning the public's perception of lawyers. The Indiana Lawyer discussed the American Bar Association's study that said the public's perception is lawyers are more concerned with their own interests than the public's or their client's and expressed a concern to stop the cocktail party jokes or mute the motion picture stereotypes that paint the legal professions as greedy and ruthless.
The Court's opinion does nothing more than fuel these perceptions. It is a widely held belief by the general public that lawyers lie and the court's (sic) protect them. This court cannot ignore (the plaintiffs') attorney lied to (an insurance adjuster), when he promised not to seek a default, communicated both orally and in writing, and then later filed a default.
The breaking of a promise is a lie and the essence of the Court's holding is that it is acceptable for a lawyer to lie to an insurance adjuster.
The Trial Court abused its (sic) discretion in not enforcing (the) promise (of the plaintiffs' lawyer) and further, by stating the failure to enforce a lawyer's promise not to seek a default constitutes an abuse of discretion and holding that attorney misrepresentations or lying would not be tolerated. [Emphasis in original]
On June 9, 1999, the Court of Appeals published an opinion granting the petition for rehearing. B&L;Appliance and Services, Inc. v. McFerran, 712 N.E.2d 1033 (Ind.Ct.App. 1999). Although it modified its original decision, the Court of Appeals again affirmed the trial court. The Court of Appeals also struck the third section of the respondent's petition for rehearing set forth above, stating that the accusations were "a disservice to the client and demeaning to the judiciary and the legal profession."
We have stated that the judicial institution is greatly impaired if attorneys choose to assault the integrity of the process and the individuals who a
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