In Re Blackwelder

615 N.E. 2d 106 (1993)

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Nature of the Case

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Facts

Randall and Dianna Gosnell retained D to pursue an appeal of a default judgment entered against the Gosnells. They had already filed a pro se Motion to Correct Error, and the trial court had denied it. D filed a timely praecipe for the record, obtained and reviewed the record, but he miscalculated the deadline for filing the record, and, thus, missed the filing date. D then arranged a meeting with the clients and presented them a 'Retainer Agreement and Release of Claims and Covenant Not To Sue.' D agreed to reimburse the Gosnells for their out-of-pocket expenses and to file a joint bankruptcy petition in return for a release. The clients agreed to '. . . release, acquit and forever discharge Attorney from any and all claims, grievances, suits and causes of action, arising from Attorney's (failure to perfect the appeal . . . ' They also agreed not file any complaint or grievance against Attorney with the Indiana Supreme Court Disciplinary Commission or any bar association.' The document also stated that 'Attorney also recommended that the Clients take sufficient time to thoroughly consider the offer and to seek the advice of another attorney(s) before making a final decision; and Whereas, Clients have considered the offer and have consulted with another attorney . . . .' They executed the agreement and D refunded $2,096.00 for expenses incurred by the appeal. D filed the bankruptcy petition and paid the filing fees. The Gosnells obtained a discharge of the default judgment which D had failed to appeal and of approximately $300,000 in unrelated debt. They then filed a grievance with the Disciplinary Commission. They also filed a civil action for damages against him. The hearing officer concluded that D's conduct did not comport with the standards set out in the Rules of Professional Conduct. D appealed.