In Re Thonert
2000 WL 1185507, 2000 Ind. LEXIS 703, 733 N.E.2d 932 (2000)
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Rule of Law:
An attorney has an ethical duty to disclose legal authority in the controlling jurisdiction that is known to be directly adverse to their client's position if opposing counsel has not disclosed it. Additionally, an attorney must explain such adverse authority to their client to the extent necessary to permit the client to make informed decisions about the representation.
Facts:
- A client was charged with operating a motor vehicle while intoxicated.
- Before retaining counsel, the client watched a videotape explaining his rights and subsequently pleaded guilty.
- The client then hired the respondent, attorney Richard J. Thonert, to help withdraw the guilty plea.
- Thonert informed the client of a prior favorable appellate decision, Snowe v. State, in which Thonert had successfully represented the defendant.
- Over a year before representing this client, Thonert had served as counsel for the defendant in Fletcher v. State, a case in which the Indiana Supreme Court issued a ruling directly adverse to the legal arguments Thonert planned to make for his new client.
- Thonert did not advise his new client of the existence or potential impact of the adverse Fletcher v. State decision.
Procedural Posture:
- The respondent, Thonert, filed a motion to withdraw his client's guilty plea in the trial court.
- The trial court denied the motion without a hearing.
- Thonert, as appellant's counsel, appealed the trial court's ruling to the Indiana Court of Appeals.
- In the appellate brief, Thonert failed to cite the adverse precedent from Fletcher v. State.
- The Disciplinary Commission initiated an attorney disciplinary action against Thonert for his conduct.
- The Disciplinary Commission and Thonert submitted a Conditional Agreement for Discipline to the Indiana Supreme Court for its approval.
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Issue:
Does an attorney violate the Rules of Professional Conduct by failing to disclose directly adverse, controlling legal authority to an appellate court, and by failing to inform his client of that same adverse authority when discussing the client's legal options?
Opinions:
Majority - Per Curiam
Yes. An attorney violates the Rules of Professional Conduct by failing to disclose controlling, adverse authority to a tribunal and by failing to adequately inform a client of such authority. The court found Thonert violated Indiana Professional Conduct Rule 3.3(a)(3) because he had intimate familiarity with the Fletcher decision, having been the counsel of record, and knowingly failed to disclose it to the appellate court when it was directly adverse to his client's position. This duty of candor is essential because legal argument is a process to determine the correct application of the law. The court also found a violation of Professional Conduct Rule 1.4(b), which requires a lawyer to explain matters sufficiently for a client to make informed decisions. By only disclosing the favorable Snowe case while omitting the controlling, adverse Fletcher case, Thonert deprived his client of the ability to intelligently assess the legal landscape and decide whether to proceed with the costly appeal.
Analysis:
This case serves as a crucial reminder of two fundamental, non-negotiable duties for an attorney: candor to the tribunal and communication with the client. It establishes that the duty of zealous advocacy does not permit a lawyer to mislead the court by strategic omission of controlling adverse precedent. The decision clarifies that a lawyer must proactively inform the court of such authority, reinforcing the lawyer's role as an officer of the court. Furthermore, it underscores that transparent communication with a client, including sharing unfavorable law, is essential for the client to provide informed consent regarding the objectives of the representation.
