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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowDescribing an Indianapolis lawyer as “his own worst enemy” when it comes to electronic communications, a split Indiana Supreme Court has issued a public reprimand after the lawyer sent a threatening email directly to an opposing party rather than working through another lawyer. A dissenting justice, however, said the rule in question in this issue of first impression does not apply to pro se lawyers like the attorney who was disciplined.
Indiana Supreme Court justices in a Friday per curiam order found Michael C. Steele committed attorney misconduct by communicating directly with the opposing party in Steele’s pro se litigation about the subject of the representation.
According to the high court’s order, a dispute arose sometime in 2018 between Steele and long-time friend “Smith” regarding a promise Smith allegedly had made to pay Steele’s costs toward an educational program.
After Steele emailed a demand letter to Smith and Smith’s counsel, “Kealey,” in July 2019, Kealey replied with a directive that Steele “[d]irect your communications to me and cease all communications with” Smith.
Steele and Kealey then had a series of communications over the next two weeks regarding Steele’s demand and his threatened lawsuit, the order says. Steele eventually filed a lawsuit against Smith in Marion Superior Court and subsequently sent a profanity-laced email to Smith threatening to visit him in person and demanding that he bypass Kealey and discuss the matter with Steele directly.
The order notes Steele referred to Kealey as “that douchebag lawyer,” among other things, and also threatened Smith to remember that Steele is “the guy who’s had your back for 32 years.”
Steele, who never received permission from Kealey to communicate directly with Smith, ultimately dismissed the lawsuit in February 2020 without ever having served Smith.
In response, a disciplinary complaint was filed against Steele in July 2020 alleging he had violated Indiana Professional Conduct Rule 4.2. The hearing officer in Steele’s case concluded he had committed professional misconduct, to which a nearly unanimous high court agreed.
Justices in their March 4 order concluded that “(m)ost of the elements of a Rule 4.2 violation are plainly met” in Steele’s case. The majority justices disagreed with Steele’s assertions that he was entitled to send Smith the email communication because Steele was not “representing a client” but rather was representing himself.
The court also declined to agree with his argument that language in the commentary to Rule 4.2 recognizes that parties generally may communicate with one another.
“The overarching purposes of the rule are ‘to prevent lawyers from taking advantage of laypersons and to preserve the integrity of the lawyer-client relationship[.]’ … More specifically, we have explained that an attorney’s attempt to bypass opposing counsel in order to pressure an opposing party to settle on less favorable terms ‘undermines the representative adversarial system.’ … This is precisely what Respondent did here; and it makes little difference (nor should it) that he did so while representing himself and not someone else,” the justices wrote in a per curiam order.
Justices ultimately agreed with the hearing officer and concluded Steele violated Rule 4.2 as charged, finding a reprimand to be sufficient discipline. In a footnote, however, the justices hastened to note Steele “continues to be his own worst enemy when it comes to his electronic communications.”
“He has been disciplined twice now for inappropriate emails; and during our consideration of this case he has sent numerous extrajudicial emails about his disciplinary matters to the membership and staff of this Court, prompting the (Indiana Supreme Court Disciplinary) Commission to file an ‘Objection to Respondent’s Email Communications and Verified Request for Order Prohibiting Further Submissions,’” the high court’s footnote reads.
“We decline at this time to issue an order of prohibition enforceable through contempt, this matter essentially having come to its substantive end with this opinion. But our declination should not be viewed by Respondent as license to engage in inappropriate communications,” it concluded.
Last August, Steele was suspended for 30 days with automatic reinstatement after he made an improper demand that disciplinary grievances filed against him be withdrawn as a condition for settlement in a civil matter. He made the demand via an email to opposing counsel.
Additionally, Steele wrote an email related to that case in May 2019 to commission staff stating, “nobody can successfully attack my moral character, and I politely dare you to even try.”
But in the instant case, Justice Geoffrey Slaughter dissented, opining that Rule 4.2, by its terms, applies only to lawyers who are “representing a client”.
“On policy grounds, I understand the Court’s desire to protect non-lawyers represented by counsel from pro se lawyers who may try to take advantage of the non-lawyer’s lack of legal education, experience, or sophistication,” Slaughter wrote. “But while this is a desirable policy goal, this issue is one of first impression in Indiana, and Rule 4.2 does not clearly apply to pro se lawyers.”
The costs of the proceeding are assessed against Steele in In the Matter of Michael C. Steele, 20S-DI-474.
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