Friday, January 7, 2011

Did Former Attorney Disciplinary Chief Protect Big Law Firm Attorneys?

For years, I have heard attorneys complain about the operation of the Indiana Supreme Court Disciplinary Commission under then chief Donald Lundberg, who is now a partner with the states' largest law firm, Barnes & Thornburg.

The complaints were that the enforcement of the disciplinary rules was not even-handed, that Lundberg, who served as Executive Secretary of the Commission from 1991 through the end of 2009, targeted attorneys from small law firms while protecting big law firm attorneys who were accused of misconduct. My limited experience suggested that might be true. A number of years ago, I had filed a disciplinary complaint against a Barnes & Thornburg attorney. There was an Indiana State Bar Association opinion right on point which said what the attorney did was unethical. Lundberg though immediately dismissed the complaint, not even requiring the attorney to answer or submitting it to the full commission to decide whether the ISBA ethics opinion was correct.

Attorneys who complained about Lundberg would only do so privately. They were terrified of possible retaliation by the powerful discipline chief. With Lundberg now gone to the private sector, it is time for those people fearful of speaking out to now do so for the good of the Indiana legal profession. Let this report be one of the first steps in doing so.

I decided to look into the often heard claim that Lundberg protected big law firms at the expense of attorneys from small firms and sole practitioners. First a word on the methodology. I did not have access to all disciplinary complaints that are filed as those are confidential. Rather what I was working off of were public cases of discipline from 2007 through the end of 2009, approximately 400 disciplinary decisions that are part of the public record.

Those disciplinary decisions rarely mention the attorney's law firm. So what I did was to look up the attorneys' names in the roll of attorneys to try to ascertain what law firm they worked at. The analysis is imperfect. Some attorneys don't list their law firm in the roll of attorneys, although almost all attorneys from large firms do. It is also quite possible that some disciplined attorneys left their law firm afterwards and therefore their law firm at the time of the discipline changed. There were also some people who were disbarred, resigned or passed away...for those folks the contact information on the roll of attorneys was removed. Also, I could have simply missed disciplined attorneys who were from one of the bigger law firms. The work doing this investigation was tedious and took several hours.

The Indianapolis Business Journal in March of 2010 listed the 24 largest Indianapolis area law firms. I used IBJ's size calculations in my review of attorney discipline during the last three years of Lundberg's time at the commission, i.e. 2007 through 2009.

1. Barnes and Thornburg (226 attorneys) 0 disciplined.
2. Baker and Daniels (224 attorneys) 0 disciplined.
3. Ice Miller (215 attorneys) 0 disciplined.
4. Bingham McHale (214 attorneys) 0 disciplined.
5. Krieg Devalut (111 attorneys) 2 disciplined.
6. Bose McKinney (110 attorneys) 0 disciplined.
7. Taft Stettinus Hollister (86 attorneys) 1 disciplined.
8. Hall Render Killian Heath (88 attorneys) 0 disciplined.
9. Frost Brown Todd (79 attorneys) 0 disciplined.
10. Skopelitis Garvin (37 attorneys) 0 disciplined.
10. Stewart and Irwin (37 attorneys) 0 disciplined.
12. Plews Shadley (34 attorneys) 0 disciplined.
12. Riley Bennett & Egloff (34 attorneys) 0 disciplined.
14. Ogletree Deakins (32 attorneys) 0 disciplined.
14. Woodard Emhardt (32 attorneys) 0 disciplined.
16. Kightlinger & Gray (30 attorneys) 0 disciplined.
17. Dann Pecar (29 attorneys) 0 disciplined.
17. Lewis & Kappes (29 attorneys) 0 disciplined.
17. Lewis Wagner (29 attorneys) 0 disciplined.
20. Harrison & Moberly (27 attorneys) 0 disciplined.
20. Wooden & McLaughlin (27 attorneys) 0 disciplined.
22. Drewry Simmons Vornehm (24 attorneys) 0 disciplined.
23. Cohen & Malad (23 attorneys) 0 disciplined.
24. Kroger Gardis & Regas (21 attorneys) 0 disciplined.

Again...don't forget the caveat that certain attorneys in these big law firms could have been missed or they could have left the big law firm after the discipline. Nonetheless, even viewed in the best light, the evidence demonstrates there should be an investigation into Lundberg's handling of attorney discipline cases during his tenure. We need to make sure that the ethical rules we attorneys practice under are applied even-handedly regardless of the size of the attorney's law firm.



I wish you, Gary, two democrats, and a couple Libertarian attorneys were in charge of the disciplinary committee.

I'll step out of my dream world of fairness and justice now.

Brizzonator said...

Why did you leave the Prosecutor Office off the list?

Brizzonator said...

So what you are saying is out of the 405 cases reviewed Those top 24 firms only had 3 Strikes against them?

Paul K. Ogden said...


I went off the list of top law firms from IBJ. The allegation has always been that he protects big law firms.

Those three instances were all I could find in three years. Granted the methodology wasn't perfect for the reasons I cited, but the results were nonetheless quite disturbing. There are about 2,000 attorneys in those top 24 law firms. I would think DUIs alone (automatic 30 day suspension) would have caused the number to be substantially higher than that. And that's not even getting into accusations of violations of the rules.

Cato said...

Great work, Paul. Indy's a dirty town.

Diana Vice said...

I didn't know how dirty it was until I read Dick Cady's book, "Deadline: Indianapolis." Not much has changed.

Advance Indiana said...

Paul, This is my observation from having once worked at one of the large law firms you mention. It is a different world at the large law firms for a practicing attorney. They host receptions at which Supreme Court justices, Court of Appeals judges and local trial court judges are present. The big firms dominate all of the bar-related committees that matter. They have a big hand in writing the rules and effectively control the disciplinary system. It's easy to make examples out of small-time attorneys while being deferential to attorneys at the large law firms. When one of them transgresses, there is built-in support network to help protect them. Nobody cares what happens to the little guys. You see it happen all the time in the criminal justice system where a person's socio-economic background seems to play a big role in how the system treats them. I don't know that it's fair to single out Lundberg as much as it is the system in general.

dcrutch said...

Thanks for your post on this topic. Maybe Gary's right that the problem is more system than individual. But, judging from the quote in your banner from Mr. Selassie, my guess is he'd be pleased.