A TTORNEY FOR THE R ESPONDENT

Pro se A TTORNEYS FOR THE I NDIANA S UPREME C OURT D ISCIPL I NARY C OMMISSION G. Michael Witte , Executive Secretary Angie L. Ordway , Staff Attorney Indianapolis, Indiana

____________________________________________________________ __________________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 98S00

- 0911

- DI

- 533

I N THE M ATTER OF :

P ATRICK K. R OCCHIO , Respondent.

_________________________________ Attorney Discipline Action Hearing Officer Bar

bara L. Brugnaux

_________________________________

February 11 , 20 1 1

Per Curiam.

This matter is before the Court on the report of Hon. Barbara L. Brugnaux, the hearing officer appointed by this Court to hear evidence
, on the Indiana Supreme Court Disci plinary Commission's "Verified Complaint for Disciplinary Action," and on the post

- hearing briefing by the parties. The Respondent's 1972 admission to this state's bar subjects him to this Court's disciplinary jurisdiction. See I ND

. C ONST

. art. 7, § 4.

We find that Respondent, Patrick K. Rocchio , engaged in attorney misconduct that,

stan d ing alone, would warrant a sanction in the lowest range . However, Respondent‟s conduct during the disciplinary process demonstrates his inability to recognize his cle ar violations of this state‟s disciplinary rules, his contempt for those rules and this disciplinary process, and his lack2

of appreciation for the role of this Court‟s hearing officer and Disciplinary Commission me mbers and staff

. In order to protect the people in this state from further misconduct, t hese substa ntial a g gravating circumstance s requir e s uspending Respondent from the pract ice of law without

aut o matic re instatement.

Background

The Hearing Officer's "Findings of Fact and Conclusions of Law" ( "Findings") and undisputed contents of exhibits are summarized below.

Count I . In 2008, D

. W

. , a resident of Michigan City , Indiana, was the victim of a serious
motor vehicle accident in Indiana . Respondent sent a letter to her based on a n article abou t the
accident in a newspaper . The letter stated :

For thirty six (36) years it has been my business to represent people who have been injured as a result of another person's negligent operation of a motor vehicle. My past professional experience includ es successfully representing hu ndreds of clients in both Michigan and Indiana recover ing millions of dollars for deserving clients

.
F or a free no

- obligation conference that will provide you with an explan ation of your rights to recover payment of insura nce benefits for your medical care expenses, your income loss, and your pain and suffering, please call my law office at [phone number] and schedule a conference at your earliest convenience.

Neither the letter nor its envelope contain ed the words "Advert ising Material
, " and the letter was not filed with the Commission.

Count II

. Respondent is licensed to practice law in Michigan and practices primarily in
that state. Respondent registered his Indiana law license as inactive effective August 24, 2009. After this date, however, his website stated: "With my Indiana law license, I am capable of handling matters related to Indiana law, including real estate transactions, estate planning and probate administration, insurance compensation [sic] bodily inju ry and property damage claims, business and management law, and Social Security disability claims." On a second website,3

Respondent stated: "I am licensed to practice law in both Indiana and Michigan." Neither site indicated that Respondent's Indiana li cense was inactive. 1

Violations . The Commission charged and the hearing officer concluded that Respondent violated the following Indiana Professional Conduct Rules: 2

Count I : Rule 7.2(c)(3) by using a statement in a public communication that "is int ended or is likely to cr eate an unjustified expectation " ; Rule 7.2(d)(2) by using a public communication that "contains statistical data or other inform ation based on past performance or prediction of future success”; and Rule 7.3(c) by not including in th e letter to D.W. “ the words „ Advertising Material ‟ consp icuously placed both on the face of any outside envelope and at the beginning " of the letter and not filing a copy of the letter with the Commission

.
Count II : Rule 5.5(b)(2) , as a lawyer not adm itted to practice in law in I ndiana, hold ing himself out to the public or otherwise represent ing that he is admi tted to practice law in Indiana.

The hearing officer found a fact in mitigation to be Respondent's lack of disciplinary history. The hearing officer found the following f acts in aggravation: (1) Respondent lacks insight into his misconduct; (2) he is unwilling to accept responsibility for his misconduct; (3) he lacks remorse; (4) he displayed dishonesty in denying he sent the letter at issue in Count I for the purpose of seeking professional employment; (5) he is disrespectful of the Rules of Professional Conduct, particularly those dealing with attorney advertising; (6) he was unable to conduct himself in a rational and civil manner in this p roceeding ; and (7) he sent an inappropriate email
to the hearing officer (with a copy to disciplinary counsel) trying to persuade her to his point of
view.

1 Respondent's attorney record indicates that he changed his Indiana law license to inactive status in 1987, reactivated it in 2005, changed it to inactive in 2006, reactivated it in 2008, and again changed it to ina ctive in 2009. We note that the letter to D.W. was sent on letterhead from an Indiana law office that listed Respondent as "Of Counsel" and "Licensed in Indiana and Michigan," during a period when Respondent's license was active.

2 The rules in this opinion are cited and quoted as e ffective at the time of the events at issue unless othe rwise noted. Indiana's rules concerning communications about a lawyer's services ( Rules 7.1, 7.2, 7.3, 7.4, and 7.5 ) were amended effective January 1, 2011.4

C iting these aggravating circumstances, the hearing officer recommend ed that Respondent be suspen ded for a least one year without automatic reinstatement.

Discussion

Jurisdiction and choice of law . Respondent argues that either this Court lacks jurisdiction over his alleged misconduct or that Michigan law should apply. B ecause Respondent's Indi ana law license was on active status at the time of the events at issue in Count I , this Court‟s jurisdiction over these charges is clear

. Prof

. Cond

. R

. 8.5 (a)

. His affirmative renewal of his
Indiana license , although inactive at the time of the events at issue in Count II
, subjects him to this Court's disciplinary jurisdiction under Rule 8.5(a)

.

Indiana law also applies to Count II under Rule 8.5(b)(2). While the alleged website
violations do not have a specific geographical location
, Respondent's representations regarding
his Indiana law license have their predominant effect in Indiana . Indiana has a greater interest than any other jurisdiction in an attorney's alleged misrepresentations about his or her authority to practice law in the state.

Count I

. We reject Respondent‟s argument that these charges violate the U. S.
Constitution as without merit. Unlike the rule at issue in Shapero v Kentucky Bar Ass‟n , 486
U

. S

. 466 (1988), Indiana ‟s rule contain s no such blanket prohibition on solicitati ons

. As to his
contention that the letter to D.W. wa s a private correspondence
, not a "public communication" within the meaning of Rule 7.2 , precedent dictates that this rule applies to letters mailed directly
to individuals soliciting their employment. Matter of Murgatroyd , 741 N.E.2d 719 (Ind. 2001) ; Matter of Huelskamp , 740 N.E.2d 846 (Ind. 2000).

We agree with the hearing officer that the letter 's assertion that Respondent had

succe eded in recovering millions of dollars for hundreds of deserving cl ients violated Rule
7.2 (c)(3) as a statement that "is intended or is likely to create an unjustified expectation" and Rule 7.2(d)(2) as "statistical data or other information based on past performance or prediction of
future success." Matter of Wamsley , 7 25 N.E.2d 75 (Ind. 2000).5

C ontrary to Respondent‟s contention that the letter was intended only to advise D.W. that she consider seeking the advice of capable legal counsel, the letter constituted a "written . . . communication from a lawyer soliciting professional employment from a prospective client potentially in need of legal services in a particular matter " and is governed by Rule 7.3(c). And
while Respondent characterizes his failure to comply with the rule's labeling and filing requirement s as “a harmless transgression
, " violati ng these requirement s is not a technicality.
Matter of Benkie , 892 N.E.2d 1237 , 1240 (Ind. 2008)

. Laypersons contending with legal issues in a time of transition, if not outright crisis, need to be notified clearly which of the myriad of communications they receive can be safely disregarded as unsolicited lawyer advertising
material. Matter of Skozen
, 660 N.E.2d 1377 , 1378

- 79 (Ind. 1996)

.

Count II

. To retain an active Indiana law license, an attorney must pay an an nual registration fee , Admis. Disc. R. 2(b), and comply with Indiana's continuing legal education ("CLE") requirements , Admis. Disc. R. 29. However, an attorney may maintain a license in “inactive” status by paying one

- half of the annual registration fee for an active license and fil ing an "affidavit of inactivity" stating that he or she is not “engaged in the practice of law in this

state

. " Admis. Disc. R. 2(c). An attorney in inactive status is exempt from Indiana's CLE requirements. Admis. Disc. R. 2 9(8)(d). We provide the option of inactive status , for example, to accommodate the eventual return to the practice of law by those attorneys who assume long

term but not permanent, full

- time administrative or management positions in government, business, or academia. The purpose of an inactive Indiana law license is not to allow an attorney who practices law to avoid paying registration fees and complying with Indiana's CLE requirements as long as appearance in an Indiana court can be avoided.

By the statements on his website s quoted above, Respondent held himself out to the public or otherwise represent ed that he was admitted to practice law in Indiana in violation of Rule 5.5(b)(2). (Respondent repeatedly argues tha t the statements on his website di d not constitute practicing law in Indiana but he is not charged with that offense.)6

Discipline

. This Court has imposed a public reprimand on a number of attorneys who have violated the rules on written communications, e.g. , Matter of Benkie , 892 N.E.2d 1237 (Ind. 2008) ; Matter of Huelskamp , 740 N.E.2d 846 (Ind. 2000) , and in some cases an even lesser
sanction. Standing alone, that would be our assessment of the sanction warranted here. The
addition of the website violation would not warrant an increase d sanction

. But Respondent‟s actions throughout the disciplinary process constitute substantial aggravating circumstance s requiring a concomitant increase in sanction.

Respondent‟s Brief in Support of Petition for Review include s the following :

It mus t be stated, at the risk of offending others that anyone who has not suffered a full frontal cranial lobotomy knows that the words published on a Michigan lawyer's law office internet describing his professional narrative, i ncluding his licensing credentia ls, is not the practice of law in the State of Indiana.

. . . . This rather bizarre and foolish disciplinary process regarding my alleged attorney misconduct long ago moved away from the focus upon the misdeeds d escribed in the Verified Complaint.
This proceeding is about behavior and protocol; what to say and how to behave in the presence of the supreme monarchy, or in this situation, the repr esentatives of the Indiana Supreme Court who alone decide what is and what is not attorney misconduct subje ct to discipline.

. . . . My experience with the Indiana attorney disciplinary system is a hideous aberration of justice: a Disciplinary Commission and staff attorney with a self

image of pompous arrogance; a hearing officer who permits herself to be used as a rubber stamp . . . .

Similar examples can be found on nearly every page of Respondent‟s briefs to this Court
and to the hearing officer , as well as in his correspondence to counsel for the Commission and in his testimony before the hearing offic er

. The hearing officer noted Respondent‟s invectives against the Commission's former executive secretary ("a first

- class ass")
, th e Commission ("soft and lazy"), the disciplinary process (“a modern day version of the Star Chamber, a Salem witch7

hunt, or a Spanish Inquisition”), and this Court‟s disciplinary rules (“frivolous and antiquated ,” “rules of behavior conceived over a cigar and brandy . . . during the late Victorian Era by a group
of self

- impressed lawyers ”), as well as his repeated use of causti c terminology ( e.g., “despicable,” “deceptive and ridiculous,” “naked stupidity,” “cutesy and evasive”). The Respondent also engages in personal attacks on the hearing officer , calling her “sadistic” and displaying “a disappointing level of ignora nce, arr ogance, and stupidity.” We concur with the hearing officer‟s finding that “Respondent‟s inflammatory statements were not spontaneous remarks made in the heat of the moment, but were his planned, intentional, oft

- repeated

comments

. ”

In addition, Responden t is totally non

- repentant. He makes clear that he believes this
Court's rules governing lawyer employment solicitation and this entire proceeding are silly. In an email to Commission counsel, he state d that if he had a chance, he would again send the le tter
to D.W. Near the end of this testimony before the hearing officer , he went into great detail describing how he would essentially do it all over again, at least for a Michigan resident. He
stated : "I will not misrepresent the content of my letter by trivializing it with the notation 'Advertising Material,'" and "I will be thankful that Michigan does not attempt to impose frivolous and antiquated regulatory restrictions upon its licensed attorneys . . . ."

Respondent is , of course, entitled to co ntest the charges against him . Our obligation is to impose discipline that is sufficient to protect the people in this state from lawyer misconduct and

to ensure that misconduct does not recur . Given Respondent‟s inability to recognize his clear
violatio ns of this state‟s disciplinary rules
, his contempt for those rules and this disciplinary process, and his lack of appreciation for the role of this Court‟s hearing officer and Disciplinary
Commission members and staff , we c onclude that a period of suspens ion is warranted

.

While the hearing officer recommend s that Respondent be suspended for a t least one year
without automatic reinstatement
, we find a period of 180 days to be sufficient. But we fully concur in her recommendation that Respondent prove hi s commitment and ability to follow this8

state‟s rules of professional conduct before being reinstated to practice in this state. 3 To be
reinstate d after this minimum period
, Respondent will be required to meet the requirements of Admis. Disc. R. 23(4)(b), including p rov ing by clear and convincing evidence t hat:

 His attitude towards the misconduct for which he is being disciplined is one of g enuine remorse;

 His conduct since the discipline was imposed has been exemplary and above r eproach;

 He has a prope r understanding of and attitude towards the standards that are imposed upon members of the bar and will conduct himself in conformity with such standards; and

 He can safely be recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and in general to aid in the administration of justice as a member of the bar and an officer of the c ourts

.
Id.

Conclusion

The Court concludes that Res pondent violate d Indiana Professional Conduct Rule 7.2(c)(3) and (d)(2) by including in a public communication a statement intended or likely to create an unjustified expectation and statistical data or other information based on past performance or predi ction of future success
, that he violated Rule 7.3(c) by using a written
solicitation for professional employment without labeling it as "Advertising Material" and filing
it with the Commission
, and that he violated Rule 5.5(b)(2) by falsely representing o n his websites that he was licensed to practice law in Indiana when his license was inactive

. We conclude that the serious aggravating circumstances discussed above warrant suspension without
automatic reinstatement.

3 Because Respondent‟s Indiana law license is currently inactive, he is currently precluded from practi cing in this state. The suspension of his license prevents him from reactivating his license until he unde rgoes the reinstatement process.9

For Respondent's professional misc onduct, the Court suspends Respondent from the practice of law in this state for a period of not less than 180 days , without automatic reinstatement, effective on the date of this opinion. Respondent shall fulfill all the duties of a suspended attorney un der 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 proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4).

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, to the Michigan Attorney Discipline Board
, 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.

Shepard, C.J., and Dickson, Sullivan, and David, JJ., concu r.

Rucker, J., dissents to the length of suspension believing it disproportionate to the misconduct alleged, and inconsistent with sanctions imposed for similar misconduct. Instead he would i mpose a thirty (30) day suspension without automatic reinstat ement.