

|FOR THE RESPONDENT                |FOR THE INDIANA SUPREME COURT     |
|                                  |DISCIPINARY COMMISSION            |
|                                  |                                  |
|Kevin P. McGoff                   |Donald R. Lundberg, Executive     |
|Attorney at Law                   |Secretary                         |
|8900 Keystone Crossing, Suite 400 |D. J. Mote, Staff Attorney        |
|Indianapolis, IN  46240-2129      |115 West Washington Street, Suite |
|                                  |1060                              |
|                                  |Indianapolis, IN  46204           |



                                   IN THE

                          SUPREME COURT OF INDIANA

IN THE MATTER OF             )
                                  )     CASE NO. 16S00-9812-DI-778
KENNETH R. BASS                   )



                             DISCIPLINARY ACTION




                               April 24, 2000


Per Curiam


      The Indiana Supreme Court Disciplinary Commission alleged that  lawyer
Kenneth R. Bass charged  an  unreasonable  legal  fee  when  he  accepted  a
private legal fee from a client he represented as public  defender  and  for
which he was paid county funds for representing.  He is  also  charged  with
failing to disclose to the trial  court  in  which  the  client’s  case  was
pending the private payment arrangement with his client.
       This  case  is  now  before  us  for  approval  of  a  Statement   of
Circumstances and Conditional Agreement for Discipline entered into  by  the
parties in  resolution  of  this  matter  pursuant  to  Ind.  Admission  and
Discipline Rule 23, Section 11(c).  Our jurisdiction here is  based  on  the
respondent’s admission to the bar of this state on October  13,  1976.    We
find the undisputed facts to be as follow.
      During relevant times, the respondent  was  employed  by  the  Decatur
Circuit Court as a public defender.  He was compensated $1,083.33 per  month
for his services.  On March 3, 1997,  the court appointed the respondent  to
represent a defendant charged with  attempted  possession  of  a  controlled
substance by altered  prescription,  a  class  D  felony.    The  respondent
appeared with his client on August 15, 1997, and entered a plea  of  guilty.
The court set the matter for sentencing on October 6, 1997.
      Some time prior to sentencing,  the  client  informed  the  respondent
that she wished to withdraw her guilty plea.   The  respondent  agreed  with
the client to accept payment from her  directly  and  to  represent  her  as
private counsel in order to move the court for withdrawal of the  plea.  The
respondent further agreed with his client that if  the  motion  to  withdraw
the plea was denied, he would use the money paid by the  client  toward  his
legal fee to pursue a sentence  modification  on  her  behalf.   Immediately
prior to sentencing on October 6, 1997, the respondent met with  the  client
outside the courtroom and accepted a cash payment from her  as  compensation
for representing her as private counsel.[1]
      At the hearing on October 6, 1997,  the  respondent  orally  moved  to
withdraw the client’s plea of guilty.  He then stated:
      Now I want to also  advise  the  Court  to  keep  myself  clean  here,
      ethically, I was contacted by [the client] . . .[a]nd  she  wanted  to
      retain me privately in this matter.  And I told her I didn’t, I’m  not
      sure exactly what I said, but I was court appointed and pretty much we
      had concluded matters, this was just a continuation of the  sentencing
      hearing, nothing more.  She also at that time, you can  confirm  this,
      that she wanted to withdraw her plea.  And  I  said  I  did  not  know
      whether the Court would entertain that or not.  Now I’m not trying  to
      muffle things up here, but she did request that I do that . . .so, so,
      you know, I just want to make sure the Court understands where I stand
      in this matter . . .


The respondent never advised the court that he  had  accepted  payment  from
the client to represent her as private counsel.  On  October  6,  1997,  the
court granted the motion to withdraw the plea.
      On January 26, 1998, the state of Indiana filed  an  amended  charging
information, which matched the facts admitted by the client.   Subsequently,
the client, with the respondent as her counsel,  again  entered  a  plea  of
guilty.  At the sentencing hearing on  February  16,  1998,  after  entering
judgment of conviction, the  court  ordered  the  client  to  reimburse  the
county $250 for legal expenses in the case:
      COURT:   . . .She’ll be on supervised  probation  after  the  executed
      part of the sentence, for the balance of the sentence.  Ordered to pay
      hundred dollar initial probation fee plus  fifteen  dollars  a  month,
      court costs, reimburse the county two hundred and  fifty  dollars  for
      legal expenses in this case.

      REPONDENT:   Your Honor, do you need to order, you’ll have to help  me
      here, a hundred dollars for that public defender’s supplemental . . .

      COURT:  No.
      RESPONDENT:  That’s on charges.  .  .
      COURT:  That’s on ’98 cases, but she will have to reimburse the county
      two hundred and fifty.

      RESPONDENT:  Two fifty.  Thank you Judge.

      Despite the discussion between the respondent and the judge about  the
requirement that the client reimburse the county  for  legal  expenses,  the
respondent again failed to inform the court that  he  had  accepted  payment
from the client to represent her as private counsel.
      After the client completed the executed portion of her  sentence,  her
probation officer asked if she would be able to pay the  court-ordered  $250
reimbursement for public defender services.   The client questioned why  she
was required  to  reimburse  the  county  when  she  had  already  paid  the
respondent for his services.  The  probation  officer  immediately  informed
the  court  of  her  statements.   The  judge  met  with  the   client   and
interrogated her under oath to confirm that she had paid the  respondent  to
represent her as private counsel. On May 6, 1998, the judge  confronted  the
respondent with the allegations made by the client, and for the first  time,
the respondent acknowledged having received money from the client to act  as
her private counsel.
      During the Disciplinary Commission’s investigation  of  those  events,
the respondent falsely stated that at  the  February  16,  1998,  sentencing
hearing he did not hear the judge order the client to repay the  county  for
the respondent’s pauper counsel fees.
      Indiana Professional Conduct Rule 1.5 requires that lawyers’  fees  be
reasonable.[2]  The respondent accepted a  fee  for  private  representation
from his client for matters that he was compensated for by the county.   The
client eventually was ordered to recompense the county for the  respondent’s
public defender services.  By charging the client a legal  fee  for  private
representation while at the same time being paid by Decatur County to  serve
as the  client’s  public  defender,  the  respondent  exacted  from  her  an
unreasonable fee in violation of Ind.Professional Conduct Rule 1.5(a).
       Professional  Conduct  Rule  3.3(a)(1)[3]   provides   that   it   is
professional misconduct for a lawyer to make a false statement  of  material
fact to a tribunal.  By twice failing to inform the trial court that he  had
accepted a cash payment from the  client  for  private  representation,  the
respondent violated the rule.  Only when confronted by the  judge  with  the
client’s revelation to her probation officer of payment  to  the  respondent
did he concede to  the  court  his  private  payment  arrangement  with  the
client.  The respondent’s deception of  the  court  about  the  matter  also
violated Prof.Cond.R. 8.4(c),[4] which proscribes conduct  involving  fraud,
deceit, dishonesty, and misrepresentation.   His  failure  to  disclose  his
arrangement his with client even while the court imposed,  as  part  of  the
judgment  of  conviction  against  the  client,  the  requirement  that  she
reimburse  the  county  for  county  legal  expenses  violated  Prof.Cond.R.
8.4(d),[5]  which   prohibits   conduct   that   is   prejudicial   to   the
administration of justice.
       Professional  Conduct  Rule  8.1(a)  provides  that  a   lawyer,   in
connection with a disciplinary matter, shall  not  knowingly  make  a  false
statement  of  material  fact.[6]    In  the  course  of  the   Commission’s
investigation of this matter, the respondent falsely stated that he did  not
hear the judge order the client to repay the  county  for  the  respondent’s
pauper counsel fees.  However,  at  the  client’s  sentencing  hearing,  the
respondent discussed with the judge, on the record,  the  exact  amount  the
client was ordered to repay to the county,  and  even  repeated  the  amount
ordered by the judge.  We therefore find that  he  knowingly  made  a  false
statement of material fact by stating that  he  did  not  hear  the  judge’s
order that the client repay the county.
      Having found misconduct, we must now assess the adequacy of the agreed
sanction, that being suspension from the practice of  law  for  sixty  days.
Among the factors  this  Court  examines  when  considering  an  appropriate
disciplinary sanction are mitigating and aggravating circumstances.   Matter
of Martenet, 674 N.E.2d 549 (Ind. 1996).
      In mitigation, the respondent and the Commission cite  the  fact  that
the respondent is the divorced father of two sons, one of  whom  is  in  his
custody and the second  a  college  sophomore  who  is  dependent  upon  the
respondent to help pay the expenses of his college education.   The  parties
also note that the respondent has served as a  public  defender  for  twelve
years and maintained his position as  a  public  defender  throughout  these
proceedings.  Finally, the parties  state  that  the  respondent  filed  his
response to the Commission’s Request for Investigation  without  benefit  of
counsel and before reviewing  the  transcript  of  the  February  16,  1998,
sentencing hearing.  This last assertion  is  of  little  mitigating  value,
however, given that the record shows the respondent was well aware that  the
$250 county reimbursement had been ordered.
      In aggravation, we note that the respondent has  been  disciplined  by
this Court before, receiving in  1997  a  private  reprimand  for  unrelated
misconduct.
      The essence of the respondent’s  present  misconduct  is  his  knowing
exploitation of his own  client  for  personal  gain,  then  his  purposeful
deception of both  the  trial  court  and  the  Commission  to  conceal  his
actions.  His acts implicate his capacity for  honesty  and  trustworthiness
while serving as an officer of the courts.   Because of  that,  we  conclude
that a period of suspension is appropriate.
      It is, therefore, ordered that the respondent,  Kenneth  R.  Bass,  is
hereby suspended from the practice of law for a period of sixty  (60)  days,
beginning June 2, 2000. At the conclusion of  that  period,  the  respondent
shall be automatically reinstated to the practice of law.
      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 Commission and the respondent dispute the amount of the private
fee paid by the client to the respondent.  The respondent asserts that the
amount was $500; the Commission, based on the sworn testimony of the
client, contends that the fee was $1,000.
[2] Professional Conduct Rule. 1.5(a) provides:

      (a) A lawyer's fee shall be reasonable.  The factors to be  considered
in determining the reasonableness of a fee include the following:

      (1) the time and labor required, the novelty  and  difficulty  of  the
questions involved, and the skill requisite to  perform  the  legal  service
properly;
      (2) the likelihood, if apparent to the client, that the acceptance  of
the particular employment will preclude other employment by the lawyer;
      (3) the fee customarily charged in  the  locality  for  similar  legal
services;
      (4) the amount involved and the results obtained;
       (5)  the  time  limitations  imposed  by  the  client   or   by   the
circumstances;
      (6) the nature and length of the professional  relationship  with  the
client;
      (7) the experience, reputation, and ability of the lawyer  or  lawyers
performing the services;  and
      (8) whether the fee is fixed or contingent.



[3]  Professional Conduct Rule 3.3(a)(1) provides:

A lawyer shall not knowingly make a false statement of material fact or  law
to a tribunal; …

[4] Professional Conduct Rule 8.4(c) provides:

It is professional misconduct for a lawyer to:
       (c)  engage  in  conduct  involving  dishonesty,  fraud,  deceit   or
misrepresentation;

[5] Professional Conduct Rule 8.4(d) provides:

It is professional misconduct for a lawyer to  engage  in  conduct  that  is
prejudicial to the administration of justice.


[6] An applicant for admission to the bar, or a lawyer in connection with a
bar admission application or in connection with a disciplinary matter,
shall not:

      (a) knowingly make a false statement of material fact;  or

      (b) fail to disclose a fact necessary to correct a misapprehension
known by the person to have arisen in the matter, or knowingly fail to
respond to a lawful demand for information from an admissions or
disciplinary authority, except that this Rule does not require disclosure
of information otherwise protected by Rule 1.6.



