FOR THE RESPONDENT			FOR THE INDIANA SUPREME COURT	 						DISCIPLINARY COMMISSION

Ronald E. Elberger				Donald R. Lundberg, Executive Secretary

Bose McKinney and Evans		Dennis K. McKinney, Staff Attorney

135 N. Pennsylvania St. 			115 W. Washington Street, Ste. 1060

Indianapolis, IN 46204			Indianapolis, IN 46204

_________________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

IN THE MATTER OF		)

						)	Case No. 65S00-9603-DI-249

WILLIAM H. BENDER		)

_________________________________________________________________________

		DISCIPLINARY ACTION

_________________________________________________________________________

December 30, 1998

Per Curiam

	The respondent in this attorney disciplinary action has been charged with failing to obtain the consent of a client before initiating a lawsuit on the client’s behalf and thereafter

engaging in an impermissible conflict of interest in relation to his representation of that

client. Pursuant to Ind.Admission and Discipline Rule 23, Section 11(c), the Disciplinary

Commission and the respondent have agreed that certain violations of the Rules of Professional Conduct for Attorneys at Law occurred and that a public reprimand is an appropriate sanction for that misconduct.  The parties’ agreement is now before this Court

for approval.  We note that the respondent’s admission to the bar of this state in 1980 confers

with us disciplinary jurisdiction in this case. 

	Pursuant to the tendered agreement, the parties stipulate that in 1993, the respondent represented the interests of a trust (the “trust”) that owned a rental property in New

Harmony, Indiana.  The trust was administered by a Chicago bank (the “trustee”).   One of

the beneficiaries (the “beneficiary”) of the trust contracted to purchase the rental property,

but thereafter during a June 1993 inspection discovered that it was damaged.  She notified

the trust of her discovery.  The trust retained the respondent to sue the tenants of the property

for the damage.  Without obtaining the authorization or consent of the beneficiary, the

respondent on June 30, 1993, named her as co-plaintiff in the suit against the tenants, and

filed an appearance on her behalf as well as on behalf of the trust.   He informed her of his

actions by letter dated July 8, 1993.  By letter dated August 27, 1993, the beneficiary notified

both the trustee and the trust that she objected to his representation of her.  She later advised

them of her intention to hold them responsible for the cost of restoring the rental property

to the condition it was in when she contracted to purchase it.  She then retained another

attorney to represent her interests, who notified the trustee, the trust and the respondent of

the representation and who advised that the beneficiary would hold the trustee responsible

for any failure to properly administer the trust, manage the rental property, and effectuate its

transfer.  The beneficiary’s attorney also reiterated her objection to the respondent’s having

filed suit on her behalf and representing her interests without her authorization. 

	In early 1994, the respondent notified the beneficiary’s attorney that the trust would

not pursue its claim against the tenants and that it would withdraw from the lawsuit or

dismiss it with prejudice.  He also advised the beneficiary by letter that he could no longer directly communicate with her since she was represented by counsel.  On January 19, 1994,

the beneficiary sued the trust and the trustee for breach of contract by cross-claim filed in

the lawsuit.  Pursuant to that claim, on January 31, 1994, the beneficiary’s attorney deposed

a witness.  During the questioning, the respondent was present as attorney for the trust. 

Thereafter, the beneficiary’s attorney notified the respondent that he felt the respondent had

a conflict of interest based on his appearance in the case for both the trust and the

beneficiary, who now were adversaries in the case.  He requested that the respondent 

withdraw his appearances.  Instead of withdrawing, the respondent, as attorney for the trust,

filed an answer to the beneficiary’s cross-claim.  The respondent subsequently filed an

objection to an amendment to the cross-claim before finally moving to withdraw as counsel

for the beneficiary on September 7, 1994.  The next month, the trust moved the court

withdraw as a party plaintiff in the case. 

	Indiana Professional Conduct Rule 1.2(a) provides, in relevant part, that a lawyer shall

abide by a client’s decisions concerning the objectives of representation and shall consult

with the client as to the means by which they are to be pursued.  By neither consulting with

the beneficiary before filing suit on her behalf or obtaining her permission to file the suit on

her behalf, the respondent violated Ind.Professional Conduct Rule 1.2(a).1   His actions in filing the suit without her knowledge, consent, or permission violated Prof.Cond.R. 1.4(b)  because he failed to explain the matter to her to the extent reasonably necessary to permit her

to make informed decisions regarding the representation, as required by the Rule. 

	Professional Conduct Rule 1.7 (a) provides: 

	A lawyer shall not represent a client if the representation of that client will be

directly adverse to another client, unless:

		(1) the lawyer reasonably believes the representation will not

adversely affect the relationship with the other client; and

		(2) each client consents after consultation. 

	Upon the beneficiary’s filing of the cross-claim, the respondent’s representation of

her as co-plaintiff (along with the trust) in the lawsuit became directly adverse to his

representation of the trust.  As such, he could not have reasonably believed that his

representation of her would not adversely affect his representation of the trust.  Furthermore,

the beneficiary did not consent to the concurrent representation and, in fact, expressly

requested that the respondent withdraw his appearance.  As such, we find that he violated

Prof.Cond.R. 1.7(a).   His failure to promptly withdraw as counsel of record upon the

beneficiary’s requests also violated Prof.Cond.R. 1.16(a)(3), which provides that a lawyer

shall not represent a client or, where representation has commenced, shall withdraw from the

representation if the lawyer is discharged. 

	In mitigation and in support of the agreed discipline of public admonishment, the

respondent and the Commission agree that the respondent believed that the trustee had

obtained the consent of the beneficiary for the respondent to file suit on her behalf against the tenants, especially since it was not clear whether the damage to the rental property

occurred before or after the beneficiary purchased the property.  The trustee later failed to

inform the respondent of the beneficiary’s August 27, 1993, objection to being represented

by him.  The day after the beneficiary’s new counsel filed an appearance on January 19,

1994, the respondent prepared a motion to withdraw as her counsel, which he intended to

have filed the next day but which due to clerical mistake never was.  Upon later learning that

the motion had never been filed, the respondent promptly caused a new motion to withdraw

to be filed with the court. 

		Mitigating circumstances aside, the fact remains that the respondent failed to take the

time to obtain the consent or approval of the beneficiary before filing suit on her behalf.  He 

later compounded that mistake by not seeing to it that his appearance was promptly

withdrawn after the beneficiary expressed strong and repeated objection to his representation

of her and after directly adverse positions developed between the beneficiary and the trust. 

We note that even though the respondent may not have known right away that his initial

motion to withdraw had not been filed, he should reasonably have surmised that something

was amiss when the beneficiary’s counsel requested, shortly after the January 31, 1994,

deposition,  that  the respondent withdraw his appearances in the case. Due to the respondent’s

neglect and inattention, both as to the initial filing of the lawsuit and his failure to withdraw

promptly when it became apparent that that was the proper course of action, we find that the

respondent should be reprimanded. 

	It is, therefore, ordered that the respondent, William H. Bender, is reprimanded and

admonished for the misconduct set forth above. 

	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 clerk of the United States Bankruptcy Court 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 respondent.