                                                               FILED
                                                          Jun 17 2019, 11:10 am

                                                               CLERK
                                                           Indiana Supreme Court
                                                              Court of Appeals
                                                                and Tax Court

                         IN THE

 Indiana Supreme Court
           Supreme Court Case No. 18S-DI-574

                  In the Matter of
                 Hilary Bowe Ricks,
                          Respondent.


                    Decided: June 17, 2019

                  Attorney Discipline Action

             Hearing Officer Jonathan M. Brown



                     Per Curiam Opinion
    Chief Justice Rush and Justices Massa and Goff concur.
Justices David and Slaughter concur in part and dissent in part.
Per curiam.

   We find that Respondent, Hilary Bowe Ricks, committed attorney
misconduct by neglecting clients’ cases and by failing to cooperate with
the disciplinary process. For this misconduct, we conclude that
Respondent should be suspended for at least two years without automatic
reinstatement.

  This matter is now before us on the report of the hearing officer
appointed by this Court to hear evidence on the Indiana Supreme Court
Disciplinary Commission’s amended disciplinary complaint.
Respondent’s 1986 admission to this state’s bar subjects her to this Court’s
disciplinary jurisdiction. See IND. CONST. art. 7, § 4.


Procedural Background and Facts
   The Commission filed a “Disciplinary Complaint” against Respondent
on November 20, 2018, which it later amended. Respondent was served
with the amended complaint but has not appeared, responded, or
otherwise participated in these proceedings. Accordingly, the
Commission filed a “Motion for Judgment on the Complaint,” and the
hearing officer took the facts alleged in the amended disciplinary
complaint as true.

   No petition for review of the hearing officer’s report has been filed.
When neither party challenges the findings of the hearing officer, “we
accept and adopt those findings but reserve final judgment as to
misconduct and sanction.” Matter of Levy, 726 N.E.2d 1257, 1258 (Ind.
2000).

   Count 1. In 2013, “Client 1” contacted Respondent regarding his
desire to pursue an expungement of various past criminal proceedings. In
April 2014, Respondent told Client 1 she would charge $991 for the
requisite case filings and $250 to attend any hearing. Respondent required
Client 1 to pay $691 of that amount up front in three biweekly
installments, which Client 1 did. In the ensuing three-plus years,
Respondent never filed an expungement petition on Client 1’s behalf and



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rarely responded to Client 1’s inquiries. In mid-2017, Respondent told
Client 1 that his expungement petition was “next on my list.”

   Client 1 filed a grievance with the Commission in November 2017.
Respondent did not timely respond to the Commission’s demand for
information and a subsequent subpoena duces tecum, prompting the
initiation of two separate show cause proceedings. Respondent belatedly
complied with the demand and the subpoena. Respondent told the
Commission that she did not file Client 1’s expungement petition because
he had not paid sufficient fees; yet, Client 1 paid the upfront installments
Respondent had requested, and Respondent never told Client 1 that she
was delaying action because of fees owing.

  Respondent did not refund unearned fees to Client 1 or surrender any
completed work to Client 1.

   Count 2. In 2012, “Client 2” hired Respondent to pursue post-
conviction relief (“PCR”) on his behalf. Respondent charged and collected
$8,500 ($3,500 to review the case and $5,000 to file a petition and litigate it
until a ruling was reached). For the next three years, Respondent grew
increasingly less responsive to inquiries from Client 2 and his wife.
Respondent filed an amended PCR petition in October 2015, and an
evidentiary hearing was set for December 18, 2015.

   Two days before that hearing, Respondent successfully moved for a
continuance. Respondent did not communicate with Client 2 about the
continuance, causing inconvenience to friends and family members of
Client 2 who had appeared for the vacated hearing after taking time off
from work.

  The hearing was reset for April 1, 2016. Respondent failed to subpoena
necessary witnesses or arrange for Client 2 to be transported to the
hearing. Respondent filed a motion for continuance the day before the
hearing, which the court denied. Both Respondent and Client 2 failed to
appear for the April 1 hearing, and the court entered judgment for the
State on the merits.

   Respondent did not refund the $5,000 in unearned fees until after a
grievance was filed against her in this matter.


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   Count 3. In January 2013, “Client 3” hired Respondent to pursue PCR
on his behalf. Respondent charged and collected $8,500 ($4,000 to review
the case and $4,500 to file a petition and litigate it). At Respondent’s
urging, Client 3 filed a pro se PCR petition in March 2013. Thereafter, a
public defender appeared on behalf of Client 3 and performed a
significant amount of work on the case.

   In November 2015, Respondent appeared for Client 3 and the public
defender withdrew. A hearing was set for December 28, 2015. On the day
of the hearing, Respondent informed the court by phone she was ill, and
the court continued the hearing without resetting it.

   In May 2017, the court set Client 3’s case for a Trial Rule 41(E) hearing
due to Respondent’s failure to prosecute the case. On June 26, the day
before the scheduled hearing, Respondent successfully moved to vacate
the hearing and set the matter for an evidentiary hearing, which the court
scheduled for October 11, 2017.

   On October 10, the court granted a continuance pending negotiation of
an agreed resolution and sentence modification and reset the hearing for
January 3, 2018. Despite the State’s agreement to a modification,
Respondent failed to follow through and file a motion to modify Client 3’s
sentence. Respondent also did not move to continue the January 3 hearing
or arrange to have Client 3 transported for that hearing, and she ignored
multiple phone queries from court staff about these matters in the days
leading up to the hearing. Respondent then failed to appear at the January
3 hearing. The court removed her as counsel and appointed a public
defender.

   Respondent did not refund the $4,500 in unearned fees until after an
investigation was undertaken by the Commission.

   Count 4. “Client 4” retained Respondent in early 2016 to assist him
with a sentence modification. Respondent charged and collected $850 up
front. For a very brief period of time Respondent was responsive and
worked on the matter, but she quickly grew unresponsive to inquiries and
ultimately did not appreciably advance the case. Respondent did not




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timely refund unearned fees despite assurances provided by her assistant
that she would do so.


Discussion and Discipline
  We concur in the hearing officer’s findings of fact and conclude that
Respondent violated these Indiana Professional Conduct Rules
prohibiting the following misconduct:

      1.3: Failure to act with reasonable diligence and promptness.

      1.4(a)(3): Failure to keep a client reasonably informed about the
      status of a matter.

      1.4(a)(4): Failure to comply promptly with a client’s reasonable
      requests for information.

      1.4(b): Failure to explain a matter to the extent reasonably necessary
      to permit a client to make informed decisions.

      1.16(d): After the termination of representation, failure to refund an
      unearned fee and failure promptly to return to a client case file
      materials to which the client is entitled.

      8.1(b): Failure to respond in a timely manner to the Commission’s
      demands for information.

      8.4(d): Engaging in conduct prejudicial to the administration of
      justice.

   Respondent’s multiple transgressions in this case are but the latest
chapter in a lengthy history of shirking her professional duties toward
clients, courts, and the Commission. Respondent has been suspended
twice before for substantially identical misconduct. In 2005, we suspended
Respondent for six months (all stayed to probation) for, among other
things, neglect of multiple post-conviction matters. Matter of Ricks, 835
N.E.2d 208 (Ind. 2005). In 2018, we suspended Respondent for 180 days
(with 90 days actively served and the balance stayed to probation) for




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neglect of multiple post-conviction matters and noncooperation with the
Commission. Matter of Ricks, 102 N.E.3d 883 (Ind. 2018) (“Ricks II”).1

   In recent years, Respondent also has been the subject of five separate
show cause proceedings arising from her noncooperation with
investigations by the Commission into grievances filed against
Respondent. Further, while outside the record of these disciplinary
proceedings, we judicially note that Respondent has been found in
contempt of this Court for disobedience to our orders demanding the
return of appellate records to the Clerk and, as a sanction, she has been
barred from withdrawing further records in cases over which this Court
has exercised jurisdiction.2

   The instant case – the third disciplinary prosecution against
Respondent for the same type of systemic negligence that has
characterized her career – makes clear that her professional shortcomings
have not been remedied and in fact are growing worse. Respondent’s
refusal to appear or participate in these proceedings, while already on
disciplinary probation, reinforces this conclusion. The hearing officer
succinctly summed up these aggravating factors and others in concluding
that “Respondent cannot be safely recommended to the public as a lawyer
who they can trust to handle their affairs.” (HO’s Report at 26).

   To protect the public, and in particular the vulnerable clientele within
Respondent’s niche practice, we conclude that a lengthy period of
suspension without automatic reinstatement is both necessary and
appropriate. In order to gain reinstatement following the conclusion of her
minimum term of suspension, Respondent will bear a heavy burden of
clearly and convincingly establishing her fitness to resume practice. While




1Respondent’s automatic reinstatement was delayed beyond the initial 90-day term in Ricks II
due to her belated and incomplete compliance with the terms of her suspension and the
duties of a suspended attorney. As of this writing, a petition to revoke Respondent’s
probation in Ricks II is pending.
2   See Shane v. State, No. 68S00-9710-CR-526 (orders issued Aug. 10, 2011 and Feb. 13, 2012).



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there exists very little in this record suggesting Respondent will be
capable of doing so, we choose not to close that door entirely.


Conclusion
   The Court concludes that Respondent violated Professional Conduct
Rules 1.3, 1.4(a)(3), 1.4(a)(4), 1.4(b), 1.16(d), 8.1(b), and 8.4(d). For
Respondent’s professional misconduct, the Court suspends Respondent
from the practice of law for a period of not less than two years, without
automatic reinstatement, effective immediately. At the conclusion of the
minimum period of suspension, Respondent may petition this Court for
reinstatement to the practice of law in this state, provided Respondent
pays the costs of this proceeding, fulfills the duties of a suspended
attorney, and satisfies the requirements for reinstatement of Admission
and Discipline Rule 23(18).

  The costs of this proceeding are assessed against Respondent. The
hearing officer appointed in this case is discharged.


Rush, C.J., and Massa and Goff, JJ., concur.
David and Slaughter, JJ., concur with the findings of misconduct but
dissent as to sanction, believing that Respondent should be
disbarred.



NO APPEARANCE FOR THE RESPONDENT



ATTORNEYS FOR INDIANA SUPREME COURT
DISCIPLINARY COMMISS ION
G. Michael Witte, Executive Director
Angie L. Ordway, Staff Attorney




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