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In re Humphrey3/10/2000
After failing to perfect service of a complaint she filed on behalf of a client (an error which ultimately proved fatal to the cause of action), attorney Mary Jane Humphrey attempted improperly to resurrect the matter by refiling it on two occasions, all the while failing to advise her client of the reason for the case's demise or to provide her client with other meaningful information about the representation. For that, along with neglect of two other legal matters, we find today that Humphrey, the respondent in this case, should be suspended from the practice of law.
This matter comes before us on the respondent and the Disciplinary Commission's Statement of Circumstances and Conditional Agreement for Discipline, tendered in contemplated resolution of this case pursuant to Ind.Admission and Discipline Rule 23(11.1)(c). Our jurisdiction in this case is derived from the respondent's admission to the Bar of this State on October 10, 1980.
Under Count I of the verified complaint for disciplinary action giving rise to this action, the parties agree that a client retained respondent in July 1992 to pursue a sexual harassment claim against the client's employer. The respondent filed a claim against the employer in December 1993, which the employer countered with a motion to dismiss, asserting insufficient service of process of the claim. The respondent subsequently filed three separate motions requesting extensions of time to respond before filing a response to the motion to dismiss on August 2, 1994.
On January 30, 1995, after expiration of the statute of limitations, the court granted the defendant's motion to dismiss, finding that the respondent had failed to comply with Fed.R.Civ.P. 4(m), which generally requires a showing of proof of service within 120 days of filing a claim. The respondent subsequently refiled the same or a substantially similar complaint in the same court. After receiving a written demand from the employer to dismiss the second complaint, the respondent falsely informed the employer that the client had authorized dismissal of the complaint and filed the appropriate documents with the court, which resulted in the second case's dismissal on April 26, 1995.
Throughout the spring and summer of 1995, the client attempted to contact respondent about the status of her case. Her communications with the client about the status of her case at that time were of a general nature and such that the details of the case were either not clearly explained or were not understood by the client. The respondent told her that the first case had been dismissed, but failed to inform the client of the underlying reason of her failure to perfect service.
In October 1995, the respondent again tried to revive her client's claim by filing a third suit, again essentially identical to the first two, in Vanderburgh Circuit Court. One crucial difference was that the third complaint added a count of fraud against the employer, in an apparent effort to revive the case beyond the original statute of limitations. Based on diversity considerations, the case was later removed to federal district court, where it was met with a motion to dismiss on the same grounds as asserted against the first two claims. Over the next two months, the respondent filed five motions for extension of time to respond to the motion to dismiss before finally responding on April 12, 1996. The court dismissed the third complaint on May 22, 1996.
By failing to defend in a timely fashion the motion to dismiss the first complaint she filed on behalf of her client, the respondent violated Ind.Professional Conduct Rule 1.3, which requires a lawyer to act with reasonable diligence and prom
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