                                                 FILED
                                             Nov 02 2018, 9:55 am

                                                 CLERK
                                             Indiana Supreme Court
                                                Court of Appeals
                                                  and Tax Court


                 IN THE

Indiana Supreme Court
  Supreme Court Case No. 64S00-1704-DI-251

            In the Matter of
           Larry W. Rogers,
                  Respondent.


          Decided: November 2, 2018

          Attorney Discipline Action

        Hearing Officer Daniel J. Molter



             Per Curiam Opinion
              All Justices concur.
Per curiam.

   We find that Respondent, Larry Rogers, committed attorney
misconduct by neglecting an appeal and then failing to refund the
unearned fee. For this misconduct, we suspend Respondent for 90 days,
with the manner of his reinstatement conditional upon full restitution
being made.

  This matter is before the Court on the report of the hearing officer
appointed by this Court to hear evidence on the Indiana Supreme Court
Disciplinary Commission’s verified disciplinary complaint. Respondent’s
1977 admission to this state’s bar subjects him to this Court’s disciplinary
jurisdiction.


Procedural Background and Facts
   The Commission filed a “Disciplinary Complaint” against Respondent
on April 25, 2017, and we appointed a hearing officer. Following an
evidentiary hearing, the hearing officer issued his report on August 16,
2018, finding Respondent committed violations as charged.

   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).

  After “Defendant” was convicted in March 2015 of murder and battery,
but before sentencing, Respondent met with Defendant to discuss an
appeal. After that meeting, Defendant and/or several of Defendant’s
family members paid Respondent $8,000 as part of his fee. Defendant was
sentenced in May 2015 and a motion to correct error filed by his trial
counsel was denied on July 14, 2015. Six days later, Respondent notified
Defendant of the 30-day deadline for filing a notice of appeal and that
further payment for transcript costs was needed.

  Respondent did not file a notice of appeal and the deadline for doing so
passed. Respondent did not notify Defendant he had failed to file the


Indiana Supreme Court | Case No. 64S00-1704-DI-251 | November 2, 2018   Page 2 of 5
notice of appeal and did not communicate with Defendant for several
months. Eventually, Defendant fired Respondent, requested appointment
of counsel to pursue a belated appeal, and demanded a refund from
Respondent.

   To date, Respondent has failed to refund any money to Defendant or
his family, despite multiple requests made by Defendant’s family and
despite Respondent’s acknowledgement that a refund is owed.


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

      1.16(d): Failure to refund an unearned fee and to protect the client’s
      interests upon termination of representation.

   Neither party has filed a brief on sanction. We agree with the hearing
officer’s succinct and eloquent assessment of this case. Respondent has
served his community and profession with distinction for over four
decades and, until just recently, had an unblemished disciplinary record.
We also are mindful of the significant personal hardship Respondent was
experiencing around the time of his neglect of Defendant’s appeal. That
said, we are deeply concerned about Respondent’s ongoing and
inexplicable failure, now more than three years later, to issue a refund that
Respondent consistently has acknowledged is owed and that Respondent
has claimed he is “ready, willing and able” to pay. (Comm’n Ex. G at 1.)
We also are concerned about the relative lack of attention devoted by
Respondent to this disciplinary proceeding and to a contemporaneous
proceeding involving Respondent’s noncooperation with another


Indiana Supreme Court | Case No. 64S00-1704-DI-251 | November 2, 2018   Page 3 of 5
disciplinary investigation, a shortcoming that Respondent’s few pleadings
appear to attribute to a heavy caseload. We remind Respondent that
attorneys have a duty to cooperate with the disciplinary process. We also
take this opportunity to remind Respondent (and all attorneys) that
although a commitment to helping others is commendable, clients are best
served when an attorney has secured his or her own oxygen mask first.1

   After careful consideration, we conclude that Respondent should be
suspended for 90 days, effective December 14, 2018. We further conclude
that the manner of Respondent’s reinstatement following this 90-day
period should be conditional upon his making restitution to Defendant
and/or Defendant’s family. If Respondent refunds the unearned $8,000 fee
in full2 and files with this Court a verified accounting and report of same
on or before March 1, 2019, then he shall be automatically reinstated to the
practice of law in Indiana at the conclusion of his 90-day suspension,
subject to the conditions of Admission and Discipline Rule 23(18)(a). If
Respondent has not made this refund and filed this verified accounting by
March 1, 2019, then Respondent shall not be automatically reinstated and
instead shall be required to satisfy the requirements of Admission and
Discipline Rule 23(18)(b) prior to resuming practice. Further, any petition
for reinstatement filed pursuant to Rule 23(18)(b) shall be accompanied by
proof that a full refund has been made and shall be subject to summary
dismissal if such proof is lacking.


Conclusion
   The Court concludes Respondent violated Professional Conduct Rules
1.3, 1.4(a)(3), 1.4(b), and 1.16(d). For Respondent’s professional



1 See Linda Rekas Sloan, Esq., Secure Your Own Mask First, Rhode Island Bar Journal 3
(Jan./Feb. 2018); see also Jeena Cho, A Distressing Business, ABA Journal, June 2018, at 29.
2Despite Respondent’s claim to have earned a portion of this fee, Respondent was unable to
produce Defendant’s client file or adequately document any work he performed on the case.
Respondent explained, “I can only make an educated guess regarding the time spent on this
case.” (Comm’n Ex. E at 2.) Under the circumstances we find Respondent is not entitled to
retain any portion of the $8,000 paid to him on Defendant’s behalf.



Indiana Supreme Court | Case No. 64S00-1704-DI-251 | November 2, 2018                   Page 4 of 5
misconduct, the Court suspends Respondent for 90 days, effective
December 14, 2018. Respondent shall not undertake any new legal matters
between service of this order and the effective date of the suspension, and
Respondent shall fulfill all the duties of a suspended attorney under
Admission and Discipline Rule 23(26).

   If Respondent makes a full refund and files a verified accounting by
March 1, 2019, he shall be automatically reinstated to the practice of law at
the conclusion of the 90-day period of suspension. If Respondent does not
make a full refund and file a verified accounting by March 1, 2019, then
his suspension shall be served without automatic reinstatement, and
Respondent may not thereafter resume practice until he has shown a
refund has been made and has satisfied the requirements of Admission
and Discipline Rule 23(18)(b).

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




All Justices concur.



RESPONDENT PRO SE
Larry W. Rogers
Valparaiso, Indiana

ATTORNEYS FOR INDIANA SUPREME COURT
DISCIPLINARY COMMISS ION
G. Michael Witte, Executive Director
Julie E. Bennett, Staff Attorney
Indianapolis, Indiana




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