In the Matter of: Patrick H. Stern , 11 N.E.3d 917 ( 2014 )

RESPONDENT PRO SE ATTORNEYS FOR THE INDIANA SUPREME COURT
Patrick H. Stern DISCIPLINARY COMMISSION
Indianapolis, Indiana G. Michael Witte, Executive Secretary
John P. Higgins, Staff Attorney
Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
Jul 02 2014, 9:35 am
No. 49S00-1205-DI-255
IN THE MATTER OF:
PATRICK H. STERN,
Respondent.
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Attorney Discipline Action
Hearing Officer Gary L. Miller
_________________________________
July 2, 2014
Per Curiam.
We find that Respondent, Patrick H. Stern, engaged in attorney misconduct by failing to
provide competent representation, representing clients with conflicting interests, asserting
frivolous legal positions, and engaging in deceptive practices with a court and the Commission.
For this misconduct, we conclude that Respondent should be suspended from the practice of law
in this state for at least 18 months without automatic reinstatement.
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
Complaint for Disciplinary Action," and on the post-hearing briefing by the parties. Respondent's
1987 admission to this state's bar subjects him to this Court's disciplinary jurisdiction. See IND.
CONST. art. 7, § 4.
Procedural Background and Facts
The Commission filed its verified complaint against Respondent on May 9, 2012, which
was amended on April 29, 2013. After an evidentiary hearing, the hearing officer filed his Report
on February 5, 2014, which we now adopt and summarize.
Persons involved in the events alleged by the Commission. The Commission's allegations
of misconduct center primarily on Respondent's actions in several cases involving the
condemnation and demolition of a building. The three people primarily involved in these
allegations, in addition to Respondent, are the following.
 DR, an elderly woman, was the owner of a commercial building in Indianapolis in
poor condition ("the Building"). DR's greatest fear was that the City of Indianapolis
was going to impose financial liability on her because of the Building.
 JS, alleged to be DR's common law husband, had no ownership interest in the
Building.
 JH, a convicted murderer, began working in Respondent's law office after his release
from prison as a "contract paralegal," not an employee. Respondent compensated JH
with cash and in-kind compensation, e.g., free representation in two criminal cases
and a divorce, free lodging, and free use of Respondent's office equipment.
The First Lawsuit. Before DR retained Respondent, the Indianapolis Department of
Metropolitan Development (the "DMD") obtained an order to demolish the Building as an unsafe
structure. DR then retained Respondent for $300 to represent her in the matter. In addition,
Respondent would retain 50% of any recovery by DR against the City of Indianapolis ("the
City").
On February 15, 2008, Respondent filed a complaint for judicial review against the DMD
("First Lawsuit") on behalf of both DR and JS, even though JS had no interest in the Building.
The complaint for judicial review did not comply with the requirements of Indiana Code § 36-7-
9-8(b) that the complaint be verified and filed within 10 days of the date the action was taken.
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In an attempt to prevent the City from imposing financial liability on DR, Respondent
drafted a quitclaim deed by which DR transferred the Building to JH. Respondent began
representing JH as well as DR. Because DR quitclaimed her fee simple interest to JH after the
unsafe building order was issued, the transfer resulted in DR and JH being jointly and severally
responsible for demolition and administrative costs. See Ind. Code § 36-7-9-12(a). Thus, the
transfer of the Building to JH did not relieve DR of financial liability, and it created a conflict of
interest between of JH and DR.
Respondent filed a "Counter-Complaint for Damages" in the First Lawsuit without leave
of court, improperly adding as defendants two city employees ("City Employees") and additional
legal theories of recovery. Respondent repeatedly referred to the Building as DR's property, even
though he knew DR no longer owned the Building. The first time the court became aware of the
transfer of the Building was at a May 7, 2008, hearing when opposing counsel asked DR whether
she still owned the Building.
On May 16, 2008, the court affirmed the Order to Demolish, for lack of standing among
other reasons. The City demolished the Building in July 2008. DR was assessed $17,200 for the
demolition costs for the Building. No appeal was taken.
The Second Lawsuit. On August 6, 2008, Respondent filed a new lawsuit on behalf of
DR seeking damages for trespass and destroying her property ("Second Lawsuit"). Respondent
named the City Employees as defendants, but he failed to include allegations against them
required by Indiana Code section 34-13-3-5(c). Respondent then filed a tort claim notice on
behalf of DR on September 8, 2008. Because it alleged violations occurring more than 180 days
prior, it was untimely. See Ind. Code § 34-13-3-8. The defendants filed a motion for judgment on
the pleadings based on untimeliness, governmental immunity, and failure to state a claim. The
Second Lawsuit was dismissed in its entirety.
The Third Lawsuit. On January 8, 2009, JH and JS filed a pro se lawsuit against the
Director of Metropolitan Development in his official capacity ("Third Lawsuit"), alleging that
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the City violated their federal and state constitutional rights. After the defendant removed the
Third Lawsuit to federal court, Respondent appeared for both JH and JS.
DR was required by statute to notify the DMD within five days of her transfer of the
Building to JH, which she failed to do. JH's claim was premised on the allegation that the City
had demolished the Building without giving him notice. If JH obtained a judgment against the
DMD based on lack of notice, and that lack of notice was caused by DR's failure to inform the
DMD of the transfer, DR would be liable to the DMD for the amount of the judgment. See Ind.
Code § 36-7-9-27(b). Thus, Respondent pursued a case on behalf of one client (JH) which, if
successful, would make his other client (DR) liable for the judgment.
The district court granted summary judgment to the defendants, citing multiple grounds,
including failure to exhaust state remedies. The Seventh Circuit Court of Appeals affirmed,
finding that Respondent's "claims were not ripe and otherwise meritless."
Respondent's relationship with JH. In the course of its investigation, the Commission
asked several times about Respondent's relationship with JH. For over two years, Respondent
failed to disclose any professional relationship with JH, falsely implying that Respondent had no
working relationship with JH. In response to the Commission's eventual allegation that
Respondent had concealed the true extent of his relationship with JH, Respondent finally
disclosed that JH worked in his office as a paralegal.
Discussion
Violations. The Court finds that Respondent violated the following Indiana Professional
Conduct Rules by the following misconduct:
Misconduct during the First, Second, and Third Lawsuits:
 1.1: Failing to provide competent representation to DR, JS, and/or JH.
 1.7(a): Representing DR, JS, and JH when the representations involved a
concurrent conflict of interest.
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 3.3(a)(1): Knowingly making and failing to correct a false statement of material
fact made to the court in a First Lawsuit by continuing to refer to the Property as
DR's after she transferred the Property to JH.
 3.1: Asserting positions for which there was no non-frivolous basis in law or fact.
Misconduct involving JH's position as a paralegal:
 5.3 and Guideline 9.1: Using a nonlawyer legal assistant who was not an
employee.
 1.6: Improperly revealing information relating to Respondent's representation of
clients to JH, by allowing JH unsupervised access to such information.
Misconduct during the Commission's investigation:
 8.1(b): Failing to disclose to the Commission Respondent's professional
relationship with JH to correct the misapprehension created by Respondent that
there was no such relationship.
Discipline. Our analysis of appropriate discipline entails consideration of the nature of
the misconduct, the duties violated by the respondent, any resulting or potential harm, the
respondent's state of mind, our duty to preserve the integrity of the profession, the risk to the
public should we allow the respondent to continue in practice, and matters in mitigation and
aggravation. See Matter of Newman, 958 N.E.2d 792, 800 (Ind. 2011).
In this case, we find the following substantial facts in aggravation: (1) Respondent has
previously been disciplined for incompetence and bringing frivolous lawsuits, see Matter of
Stern, 776 N.E.2d 1208 (Ind. 2002); (2) Respondent's conduct was part of a pattern of
misconduct that included failing to attain minimum competence in representing clients, filing
multiple frivolous lawsuits, and misleading the court in the First Lawsuit and the Commission in
its investigation; (3) instead of accepting responsibility for his actions, Respondent blames the
judges in the lawsuits, the Commission, and others; and (4) Respondent has shown no insight
into his misconduct.
We also observe that Respondent has shown a lack of basic competence in representing
himself in this disciplinary proceeding. For instance, he has filed documents that are riddled with
typographical and grammatical errors and that are very difficult to understand. In response to the
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Commission's verified complaint, Respondent asserted a number of frivolous affirmative
defenses. In responding to the Commission's discovery requests, Respondent repeatedly deleted,
renumbered, and added paragraphs to the requests. Despite several opportunities to correct
deficiencies in discovery responses, he still failed to respond to some discovery requests, and he
gave incomplete, inaccurate or incomprehensible responses to others. In his answer to the
amended complaint, Respondent failed to respond to some allegations, responded falsely to
some, and responded "denied admitted" to others. Respondent himself could not explain what
"denied admitted" meant. Even after several attempts and, according to his own testimony,
answering the allegations to the best of his ability, Respondent was unable to draft a legally
sufficient responsive pleading.
In light of his serious deficiencies in representing clients and himself and his refusal to
acknowledge any misconduct on his part, the Court has grave concerns about Respondent's
current fitness to represent clients in the practice of law. We therefore conclude that Respondent
should be suspended from practice and undergo a reinstatement proceeding before resuming
practice.
Conclusion
The Court concludes that Respondent violated the Indiana Rules of Professional Conduct
by failing to provide competent representation, representing clients with conflicting interests,
asserting frivolous legal positions, and engaging in deceptive practices with a court and the
Commission.
For Respondent's professional misconduct, the Court suspends Respondent from the
practice of law in this state for a period of not less than 18 months, without automatic
reinstatement, beginning August 13, 2014. 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). 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
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proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for
reinstatement of Admission and Discipline Rule 23(4) and (18). Reinstatement is discretionary
and requires clear and convincing evidence of the attorney's remorse, rehabilitation, and fitness
to practice law. See Admis. Disc. R. 23(4)(b).
In addition, the Court denies Respondent's motions to investigate the conduct of one of
the Commission's staff attorneys.
The costs of this proceeding are assessed against Respondent. The hearing officer
appointed in this case is discharged.
The Clerk of this Court is directed to give notice of this opinion to the hearing officer, to
the parties or their respective attorneys, and to all other entities entitled to notice under
Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this opinion to the
Court's website, and Thomson Reuters is directed to publish a copy of this opinion in the bound
volumes of this Court's decisions.
Dickson, C.J., and Rucker, Massa, and Rush JJ., concur.
David, J., concurs in part but dissents regarding the discipline imposed, believing it to be
insufficient.
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