In the Matter of: David J. Steele , 45 N.E.3d 777 ( 2015 )

ATTORNEY FOR THE RESPONDENT ATTORNEYS FOR THE INDIANA SUPREME COURT
Michael E. Brown DISCIPLINARY COMMISSION
Kightlinger & Gray, LLP G. Michael Witte, Executive Secretary
Indianapolis, Indiana John P. Higgins, Staff Attorney
Indianapolis, Indiana
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In the
Indiana Supreme Court
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No. 49S00-1509-DI-527
IN THE MATTER OF:
DAVID J. STEELE,
Respondent.
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Attorney Discipline Action
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Dec 01 2015, 10:50 am
December 1, 2015
Per Curiam.
The Indiana Supreme Court Disciplinary Commission charged Respondent, David J.
Steele, with eight counts of misconduct involving among other things theft of client funds,
retaliatory disclosures of clients’ confidential information, pervasive dishonesty, and a pattern of
conduct prejudicial to the administration of justice. Respondent’s 2003 admission to this state’s
bar subjects him to this Court’s disciplinary jurisdiction. See IND. CONST. art. 7, § 4.
Respondent already is under an order of emergency interim suspension and has tendered
to this Court an affidavit of consent to discipline admitting the material facts alleged in the
verified complaint. We adopt those facts, find misconduct as charged, and conclude without
hesitation that Respondent should be disbarred.
Facts
Count 1. Respondent misappropriated approximately $150,000 of client funds from his
attorney trust account. Respondent redirected most of these unearned fees into his personal or
operating account, although he sometimes “peel[ed] off a few hundred dollars” to give to his
employees as a “spot bonus.” Respondent communicated extensively with his office manager
(“JD”) regarding these thefts and the Disciplinary Commission inquiries prompted by these
thefts.
Count 2. At the outset of a client representation, Respondent typically would collect a
$2,500 or $3,500 deposit from the client. Respondent’s fee agreements purported to render these
advance fees nonrefundable, and Respondent vigorously enforced this nonrefundability provision
against clients. Additionally, Respondent instructed his office staff to inflate billable hours and
rates by a variety of means. Respondent often would use these false billing practices as
retaliation against clients who requested a refund “or otherwise got crosswise with” him.
Respondent regularly communicated with JD and others within his office regarding these
practices. An illustrative example1 is the following email Respondent sent to JD regarding one
particular client:
I simply cannot tell you how tired [I] am of these people. How tired [I] am of
hearing about the stupid f***ing transcripts she ordered on her own and [ ]
expects me to split with her. . . . You added a line to her January bill right? A
line that said, ‘emails and phone calls to and from client, prepare for hearing,’
right? How much time did we put down for that? I think [I] only told you like
4.5 hours right? Well f*** that. If she wants me to split the cost of those f***ing
transcripts [I] told her not to get, add another 1.5 hours to that line ok?
Count 3. Numerous clients requested refunds of unearned fees from Respondent, which
Respondent was unable to provide because he had stolen virtually all the funds contained within
his trust account. Respondent stalled or avoided responding to clients requesting refunds and
instructed his staff to inflate bills in an attempt to deplete the retainers advanced by clients.
When these measures failed, Respondent occasionally issued refunds to former clients using
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The verified complaint and Respondent’s affidavit of consent to discipline both quote at length a
significant number of emails and text messages sent by Respondent to JD and others.
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retainers paid by new clients. Respondent attempted to persuade JD and others to go along with
these practices and frequently reminded JD that Respondent had fired the prior office manager
when that person had questioned Respondent’s unethical conduct, writing to JD in one email:
I very sincerely love that you get it – there is no giving back money unless we really
trashy [sic] have to. And even then, [I] make them ask[.] I don’t write checks to my
clients[,] other way around. . . . Would you believe that [the prior office manager] used
to f***ing argue with me about it. Argue that we should give these people their money
back, ALL their money. The money [I] used to pay their salaries. It was wildly difficult.
One of the many reasons [I] fired my boy.
Count 5.2 Respondent fired JD after just two and one-half months of employment, and
JD contacted the Commission to report Respondent’s misconduct. Upon learning this,
Respondent sent JD numerous text messages and emails threatening and intimidating JD and
attempting to dissuade JD from cooperating with the Commission. In one such message,
Respondent told JD, “No one will ever hire you if [I] get disbarred for something you told them.
You think lawyers want someone in their office who tried to get their last boss disbarred?” In
another message, Respondent disparaged JD for his sexual orientation, writing “So is this the
part where [I] say I’ll meet you on the playground and we can settle it like men? Or like men
who [ ] are so the opposite of men that they even take their husband’s last name?”
Count 6. Respondent made false statements to the Commission during its investigation
that, by Respondent’s own description, were “virtually pathological in frequency and scope.”
Respondent habitually lied in his responses to the Commission’s inquiries regarding his trust
account, billing and refund practices, and numerous highly derogatory statements Respondent
had made about clients and various opposing counsel. Respondent also lied regarding the
circumstances of JD’s termination of employment, falsely telling the Commission that JD had
been caught having sex with a male client in Respondent’s office and that JD had gained access
to the firm’s website to post disparaging comments against the gay community. Additionally,
Respondent brandished a handgun when he terminated JD’s employment, and Respondent
2
For ease of reference, our recitation of the counts of misconduct tracks the Commission’s verified
complaint and Respondent’s affidavit of consent to discipline, in both of which “Count 4” is omitted.
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instructed an associate attorney (“AA”) who witnessed this incident to lie about this fact to the
Commission.
Count 7. Respondent frequently lied to his clients, office staff, and third parties.
Respondent also instructed his staff to “lie to all comers” regarding Respondent’s whereabouts
and other matters. Illustrative examples, among the many cited in the verified complaint and
admitted by Respondent, include Respondent falsely telling opposing counsel that Respondent
was “in a hospital room watching a loved one die of cancer” and falsely telling a client that
Respondent was unavailable for a meeting because his dog had just died. Respondent regularly
enlisted the aid of JD and AA to perpetuate these lies and bragged to them when the lies were
successful.
Count 8. In addition to his firm’s website (which includes laudatory client testimonials),
Respondent maintains a profile on Avvo.com, a legal marketing website. Respondent, by his
own description, “actively manipulate[d his] Avvo reviews by monetarily incentivizing positive
reviews, and punishing clients who write negative reviews by publicly exposing confidential
information about them.” Respondent’s posted responses to negative reviews also included
numerous false statements. Compounding this misconduct, on at least one occasion Respondent
was mistaken about the identity of a negative reviewer, prompting him to expose the confidential
information of a former client other than the one who had posted the review.
Count 9. Respondent, by his own description, “record[ed] conversations of clients and
potential clients for [his] own personal amusement.” Respondent shared these recordings with
his staff and his relatives. In another incident, Respondent instructed JD and AA to record a
client conversation in his absence, again for purposes of amusement. Respondent openly
mocked these recorded individuals in his conversations with others and in a meeting with the
Commission.
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Discussion
Respondent violated these Indiana Professional Conduct Rules prohibiting the following
misconduct:
1.5(a): Making an agreement for, charging, or collecting an unreasonable fee.
1.5(b): Failing to communicate the basis or rate of the fee for which a client will
be responsible before or within a reasonable time after commencing the
representation.
1.6(a): Revealing information relating to representation of a client without the
client’s informed consent.
1.9(c)(2): Revealing information relating to the representation of a former client
except as rules permit or require.
1.15(a): Failing to safeguard property of clients; treating client funds as his own;
failing to maintain and preserve complete records of client trust account funds.
1.15(c): Disbursing funds from a trust account for the attorney’s personal use.
1.15(f): Failing to hold client funds in an IOLTA account.
1.16(d): Failing to refund an unearned fee promptly upon termination of
representation.
1.18(b): Using or revealing information learned in consultation with prospective
client, except as permitted by rule.
4.1(a): Knowingly making a false statement of material fact to a third person in
the course of representing a client.
7.1: Making a false or misleading communication about the lawyer or the
lawyer’s services, including the improper use of statistical data or other
information based on past performance and the improper use of statements or
opinions as to the quality of services.
8.1(a): Knowingly making a false statement of material fact to the Disciplinary
Commission in connection with a disciplinary matter.
8.1(b): Failing to disclose a fact necessary to correct a misapprehension known
by the person to have arisen in a disciplinary matter.
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8.4(b): Committing criminal acts (theft, conversion, deception) that reflect
adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.
8.4(c): Engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation.
8.4(d): Engaging in conduct prejudicial to the administration of justice.
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 any matters in aggravation or
mitigation. See Matter of Newman, 958 N.E.2d 792, 800 (Ind. 2011).
These considerations point in a single direction here. The seriousness, scope, and sheer
brazenness of Respondent’s misconduct is outrageous. He stole approximately $150,000 from
his clients, threatened and intimidated his staff, disparaged and mocked virtually everyone
around him, lied to all comers, and obstructed the Commission’s investigation. Perhaps most
disturbingly, Respondent repeatedly and fundamentally breached the duty of confidentiality that
lies at the heart of the attorney-client relationship. Respondent recorded privileged
communications and shared those recordings with others for his own amusement, he solicited his
office staff to do the same, and he posted client confidences and falsehoods on a legal marketing
website in order to “punish” certain clients and inflate Respondent’s own website ranking.
“We have long emphasized that a license to practice law is a privilege, and that privilege
is conditioned upon the faithful performance of the responsibilities imposed upon the attorney by
the society that grants the privilege.” Matter of Keaton, 29 N.E.3d 103, 110 (Ind. 2015).
Respondent’s actions amount to a pattern of systemic and wide-ranging misconduct, and rather
than express any regret or remorse for his actions or the harm they have caused, Respondent has
proudly trumpeted his repugnant behavior as the raison d’etre of his practice. There can be no
doubt in these circumstances that disbarment is warranted and that Respondent’s privilege to
practice law should be permanently revoked.
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Conclusion
The Court concludes that Respondent violated the Indiana Rules of Professional Conduct
by stealing approximately $150,000 from his clients, disclosing client confidences for purposes
of both retaliation and amusement, threatening and intimidating his office staff, lying pervasively
to all comers, obstructing the Commission’s investigation, and engaging in a pattern of conduct
prejudicial to the administration of justice.
Respondent already is under an order of emergency suspension in this cause. For
Respondent’s professional misconduct, the Court disbars Respondent from the practice of law in
this state effective immediately. Respondent shall fulfill all the duties of a disbarred attorney
under Admission and Discipline Rule 23(26). The costs of this proceeding are assessed against
Respondent.
All Justices concur.
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