

FOR THE RESPONDENT                FOR THE INDIANA SUPREME COURT


                                             DISCIPLINARY COMMISSION



Forrest Bowman, Jr.               Donald R. Lundberg, Executive Secretary
11 S. Meridian Street             Seth T. Pruden, Staff Attorney
Indianapolis, IN 46204            115 West Washington St., Ste. 1060
                                  Indianapolis, Indiana  46204
___________________________________________________________________________

                                   IN THE

                          SUPREME COURT OF INDIANA

IN THE MATTER OF                 )
                                      ) Case No.  82S00-9811-DI-723
MARY JANE HUMPHREY                   )



                             DISCIPLINARY ACTION



                               March 10, 2000

Per Curiam

      After failing to perfect service of a complaint she filed on behalf of
a client (an error which ultimately proved fatal to the  cause  of  action),
attorney Mary Jane Humphrey attempted improperly to resurrect the matter  by
refiling it on two occasions, all the while failing to advise her client  of
the reason for the case’s  demise  or  to  provide  her  client  with  other
meaningful information about  the  representation.   For  that,  along  with
neglect of two other  legal  matters,  we  find  today  that  Humphrey,  the
respondent in this case, should be suspended from the practice of law.
      This matter comes before us on the  respondent  and  the  Disciplinary
Commission’s  Statement  of  Circumstances  and  Conditional  Agreement  for
Discipline, tendered in contemplated resolution of  this  case  pursuant  to
Ind.Admission and Discipline Rule 23(11.1)(c).   Our  jurisdiction  in  this
case is derived from the respondent’s admission to the Bar of this State  on
October 10, 1980.
      Under Count I of the verified complaint for disciplinary action giving
rise to this action, the parties agree that a client retained respondent  in
July  1992  to  pursue  a  sexual  harassment  claim  against  the  client’s
employer.  The respondent filed a claim against  the  employer  in  December
1993, which the employer countered  with  a  motion  to  dismiss,  asserting
insufficient service of process of the claim.  The  respondent  subsequently
filed three separate  motions  requesting  extensions  of  time  to  respond
before filing a response to the motion to dismiss on August 2, 1994.
      On January 30, 1995, after expiration of the statute  of  limitations,
the court granted the  defendant’s  motion  to  dismiss,  finding  that  the
respondent had failed to comply  with  Fed.R.Civ.P.  4(m),  which  generally
requires a showing of proof of service within 120 days of  filing  a  claim.
The respondent subsequently refiled the  same  or  a  substantially  similar
complaint in the same court.   After receiving a  written  demand  from  the
employer to dismiss the second complaint, the  respondent  falsely  informed
the employer that the client had authorized dismissal of the  complaint  and
filed the appropriate documents  with  the  court,  which  resulted  in  the
second case’s dismissal on April 26, 1995.
      Throughout the spring and summer of  1995,  the  client  attempted  to
contact respondent about the status of her case.   Her  communications  with
the client about the status of her case at  that  time  were  of  a  general
nature and such that the  details  of  the  case  were  either  not  clearly
explained or were not understood by the client.[1]  The respondent told  her
that the first case had been dismissed, but failed to inform the  client  of
the underlying reason of her failure to perfect service.
      In October 1995, the respondent again tried  to  revive  her  client’s
claim by filing a third suit, again essentially identical to the first  two,
in Vanderburgh Circuit Court.   One crucial difference was  that  the  third
complaint added a count of  fraud  against  the  employer,  in  an  apparent
effort to revive the  case  beyond  the  original  statute  of  limitations.
Based on diversity considerations, the case was  later  removed  to  federal
district court, where it was met with  a  motion  to  dismiss  on  the  same
grounds as asserted against the first two claims. Over the next two  months,
the respondent filed five motions for extension of time to  respond  to  the
motion to dismiss before finally responding on April 12,  1996.   The  court
dismissed the third complaint on May 22, 1996.
      By failing to defend in a timely fashion the  motion  to  dismiss  the
first complaint she filed on behalf of her client, the  respondent  violated
Ind.Professional Conduct Rule 1.3, which  requires  a  lawyer  to  act  with
reasonable diligence and promptness while  representing  a  client.[2]    By
failing to keep her client informed about the status  of  her  case  and  by
failing to advise the client of dismissals of  her  claims,  the  respondent
violated Prof.Cond.R. 1.4(a)[3] and  (b),  which  require  lawyers  to  keep
their clients reasonably informed  about  pending  legal  matters.[4]    The
respondent violated Prof.Cond.R. 1.7(b)[5] by continuing  to  represent  the
client after the first  complaint  was  dismissed  for  failure  to  perfect
service:  the respondent’s failure to do so resulted in a loss of an  avenue
of legal redress for her client, yet the respondent  failed  to  inform  her
client of the potential grounds for a legal malpractice claim and failed  to
advise  the  client  to  seek  the  advice  of  independent   counsel.   The
respondent’s  continued   representation   of   the   client   under   those
circumstances also violated Prof.Cond.R. 1.16(a)(1), which requires  lawyers
to  terminate  representation  if  the  representation  will  result  in   a
violation of the Rules of Professional Conduct or other law.[6]   By  filing
the same or substantially similar complaints after the first  complaint  was
dismissed,  the  respondent  violated  Prof.Cond.R.  3.1,  which   prohibits
lawyers from initiating or defending  frivolous  proceedings  or  issues  in
proceedings.[7]   Finally, the respondent violated Prof.Cond.R.  8.4(c)  for
falsely representing to the employer’s counsel that she  was  authorized  to
dismiss the second lawsuit when that was untrue.[8]
      Under Count II, the  parties  agree  that  after  being  appointed  an
estate’s personal representative and entering an appearance as the  attorney
of record in February 1995, the respondent failed to file  the  statutorily-
required inventory for the estate within two months of her  appointment,  as
provided  by  law.[9]    The  respondent  thereafter  failed  to   pay   the
inheritance tax due on the estate, which made the estate  ineligible  for  a
5% reduction in taxes due, and as of November 1998 had not filed a  Verified
Account or Petition for Final Settlement  which  kept  the  estate  open  on
court’s docket.
      We find that by failing timely to file the required inventory, pay the
taxes due, and file a final  accounting  and  request  for  settlement,  the
respondent violated Prof.Cond.R. 1.3.
      As to Count III, the parties agree that in late 1992,  the  respondent
was hired on a contingent fee basis to represent  27  students  on  a  claim
against a business  college.   Each  client  paid  the  respondent  $10  for
expenses.  The respondent filed a  complaint  in  March  1994.   The  school
failed to file an appearance or to respond in  any  way  to  the  complaint.
Although the respondent could have sought a  default  judgment,  the  matter
instead languished until July 1996, when the court  ordered  the  respondent
to show cause why the action should not be dismissed pursuant  to  Ind.Trial
Rule 41(E) for want of prosecution.   The respondent subsequently  moved  to
continue the T.R. 41(E) hearing a total of nine  times  from  July  1996  to
July 1997.  Finally, in September 1997, the respondent filed  a  motion  for
default judgment, and then moved the  court  to  continue  hearing  on  that
motion the matter a total of nine times, from September 1997 to  June  1998.
 In July 1998, after a hearing on the motion,  the  trial  court  entered  a
default judgment against the school, some four  years  after  the  complaint
was filed.   During one three year period that the case was pending, one  of
the students attempted repeatedly by telephone to contact the respondent  to
determine the status of the case.  The respondent failed to return  all  but
one of those calls and never informed the client that she had continued  the
case eighteen times.
      By her actions in Count III, we  find  that  the  respondent  violated
Prof.Cond.R. 1.3 by failing to prosecute her client’s case  for  nearly  two
years, and for failing to obtain a default judgment  for  approximately  two
years thereafter.  Her failure to provide information about  the  status  of
the pending case in response to repeated phone calls from a client  violated
Prof.Cond.R. 1.4(a).
      Having found misconduct, this Court  must  now  determine  the  proper
discipline.   In so doing, we examine  the  surrounding  circumstances,  the
respondent’s state of mind, the duty violated, actual  or  potential  injury
to the client, the duty of this Court  to  preserve  the  integrity  of  the
profession, the risk to  the  public,  and  any  mitigating  or  aggravating
factors.  Matter of Christoff and  Holmes,  690  N.E.2d  1135  (Ind.  1997);
Matter of Gemmer, 566 N.E.2d 528 (Ind. 1991); Matter  of  Kern,  555  N.E.2d
479 (Ind. 1990).
      In mitigation, the parties have  noted  that  the  respondent  has  no
previous disciplinary history and has expressed regret at  her  handling  of
these matters.  They  also  point  out  that,  during  relevant  times,  the
respondent was serving as an attorney for the Vanderburgh County  Office  of
Family and Children and agree that her regular caseload of over 100  matters
at any given time in that position was a contributing factor in her  neglect
of the cases subject to this proceeding.
      The respondent’s inattention to matters  entrusted  to  her  prolonged
litigation and in two instances deprived her clients of particular  benefits
or legal redress.  We do note that under Count III, the respondent did  hold
periodic meetings to communicate progress with her clients.   Those  clients
whose  addresses  were  known  to  the  respondent  were  notified  of  such
meetings,  but  all  of  the  clients  did   not   attend.    However,   her
communication with clients was sorely lacking in other instances  when  one-
on-one contact was necessary.   Most troubling of all was  her  handling  of
the discrimination action under Count I because aspects  of  it  indicate  a
distinct lack of candor with regard to her client, the opposing party,  and,
with the serial filing of essentially the same complaint, the courts.
      The  parties  offer  resolution  of  this  matter  by  suspending  the
respondent from the practice of law for a period of 90 days.   In  light  of
the pattern of misconduct presented, we agree that a  period  of  suspension
is warranted, and thus approve the parties’ agreement.
      It is, therefore, ordered that  the  respondent  be  suspended  for  a
period of ninety (90) days, beginning April 14, 2000, at the  conclusion  of
which the respondent shall be automatically reinstated to the  bar  of  this
State.
      The clerk of this Court is directed to provide notice of this order in
accordance with Admis.Disc.R. 23(3)(d) and  to  provide  the  clerk  of  the
United States Court of Appeals for the Seventh Circuit, the  clerk  of  each
of the United States District Courts in this state, and the  clerks  of  the
United States Bankruptcy Courts in this state with the  last  known  address
of respondent as reflected in the records of the clerk.
      Costs of this proceeding are assessed against the respondent.




-----------------------
      [1]  The respondent claims that she provided her client with a copy
of the dismissal order.  The client contends that she never received that
document.  In any event, the respondent did not communicate a full
understanding of the consequences of any dismissal to her client.

      [2] Indiana Professional Conduct Rule 1.3 requires that a lawyer shall
act with reasonable diligence and promptness in representing a client.

      [3] Professional Conduct Rule 1.4(a) provides that a lawyer shall keep
a client reasonably informed about the status of a matter and promptly
comply with reasonable requests for information.

      [4] Professional Conduct Rule 1.4(b) requires a lawyer to “explain a
matter to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation.”


      [5] Professional Conduct Rule 1.7(b) states that a lawyer “shall not
represent a client if the representation of that client may be materially
limited by the lawyer’s responsibilities to another client or to a third
person, or by the lawyer’s own interests.”


      [6] Professional Conduct Rule 1.16(a) provides, in relevant part,
that (subject to the exceptions in Prof.Cond.R. 1.16(c)) a lawyer shall not
represent a client or, where representation has commenced, shall withdraw
from the representation of a client if:

      (1) the representation will result in violation of the Rules of
Professional Conduct or other law;
      (2) the lawyer's physical or mental condition materially impairs the
lawyer's ability to represent the client;  or
      (3) the lawyer is discharged.


      [7] Professional Conduct Rule 3.1 states that lawyers “shall not bring
or defend a proceeding, or assert or controvert an issue therein, unless
there is a basis for doing so that is not frivolous…”


      [8] Professional Conduct Rule 8.4 (c) makes it professional misconduct
to “engage in conduct involving dishonesty, fraud, deceit or
misrepresentation.”
      [9] I.C. 29-1-12-1.

