Today I received by email from attorney Patrick K. Rocchio, per my request, a statement by him, on his letterhead and dated February 15, 2011, responding to the Indiana Supreme Court’s disciplinary ruling In the Matter of Patrick K. Rocchio. With Mr. Rocchio’s permission I’ve posted below the text of his statement in its entirety. It’s long and detailed, but well worth the read. If you don’t read the whole thing, at least read the “Personal Remarks” section at the end.
Mr. Rocchio’s statement:
No attorney lives in anticipation of the day when his honor, reputation, and
good name are linked to the title of a state Supreme Court decision involving a matter of discipline imposed for violation of rules of professional conduct.
That dreaded development occurred in my life late on the afternoon of
February 11, 2011. (Please pause and pray with me that the decision does not become the oft cited Rocchio Doctrine.)
For the sake of those who may have occasion to research this matter in the
future in search of binding legal precedent, it seems appropriate to furnish a
statement which reveals relevant and undisputed facts somehow omitted by the justices who signed the opinion bearing my name in its caption.
Of course, the factual omissions made by the learned justices likely occurred only as a result of some inadvertent dictation or transcription errors made in the secretarial pool, or perhaps a page or two dropped unintentionally from the stack of paper by a careless clerk on a trip to the printer.
First, anyone with an interest in the opinion pertaining to my professional
conduct and demeanor should take a minute and visit my two (2) professional websites at www.rocchiolawoffices.com and www.patrickrocchio.com, and after viewing and reading their content, form an independent judgment whether those internet pages describe an attorney who poses a menacing threat to the lives and welfare of the people of Indiana.
The disciplinary proceedings which involved me were, in fact, an aberration
of justice. This weird experience originated with a single letter written by me to a woman who had been the topic of a feature story in a local newspaper, pleading for charity from the public to help pay for her medical expenses.
My tactful suggestion to her was to speak with a lawyer, and if she had no
one in mind, I qualify as an experienced personal injury lawyer. That never seemed to be advertising material or a solicitation letter to me. But, lawyers and judges who have never engaged in the filthy practice of soliciting business would be unable to make the distinction. Incidentally, I do not make home or hospital visits or meet potential clients for dinner or drinks.
This silly process gained legs and picked up steam fourteen (14) months
after its initial launch when an unidentified Disciplinary Commission staff member possibly fatigued from hours of viewing internet porn switched focus and began reading my Michigan law office’s internet website, apparently in search of added examples of my misdeeds.
To my later regret, an offending sentence was found among ten (10) pages
of content, and the charges against me expanded instantaneously to include
misconduct related to doing something you are not allowed to do unless you have been admitted to the practice of law in Indiana. It apparently made no difference that I had been admitted to the practice of law in Indiana in September, 1972.
Actually, my Michigan based website since its creation in 2002 has been a
rather limp, bland, and vanilla flavored example of an attorney’s use of the internet for advertising purposes. It is rather flat, lacks any testimonials, and contains no links to my big verdict jury victories. Overall it lacks that dynamic appearance necessary to sway would be clients or catch the attention of the disciplinary police in search of attorney misconduct.
Particularly puzzling in my case, is for what reason was the staff of the
Indiana Supreme Court Disciplinary Commission examining the internet website of an obscure small time lawyer in rural Branch County, Michigan? No grievance had been filed by a widow or orphan claiming a violation of legal ethics related to the statements included on my internet website.
The website review was self-initiated by the Disciplinary Commission and
totally unrelated to the single grievance which had been filed concerning a simple harmless letter which had been sent by me in a sealed envelope to a person other than the grievant.
The opinion released February 11, 2011, portrays me as an undisciplined,
crazy lunatic ranting and raving about all sorts of matters which have displeased me. I cannot think of any other person other than the justices on the Indiana Supreme Court who would describe me with such unflattering words and phrases. It might have been a good idea to talk with judges and lawyers who know me.
A. Historical Development:
(1) The Letter:
This matter bloomed and grew wildly out of control as the progeny of a one
(1) page letter sent by me to a woman identified for sake of her anonymity as DW, dated March 6, 2008.
The content of the letter clearly intends only to encourage the addressee to
consider seeking experienced legal advice regarding her involvement in a motor vehicle pedestrian collision in which she sustained severe personal injuries as the pedestrian, as reported in the human interest feature story published in a local area newspaper of general circulation.
(2) The Grievance:
Approximately five (5) months after my letter to DW, a grievance was filed
on August 27, 2008, by a person other than DW, and whose relationship to DW, if any, was not disclosed, and to the present day has never been revealed, by the Disciplinary Commission. Also, the manner by which the grievant became aware of the private letter which had been sent in the mail to DW remains a mystery.
The grievance alleges that my letter to DW was the act of an “ambulance
chaser,” and the inquiry was made as to whether the letter to DW was a “legal” act by an attorney.
Of course, neither DW or the grievant would recognize me if our paths
crossed in a public setting such as a grocery store check-out line or adjoining seats in a local movie theatre. To my knowledge, we have never been introduced nor had any direct personal or professional contact between us.
(3) Commission’s First Demand Letter:
The initial inquiry letter sent by the Commission to me, dated September 8,
2008, requested my answer to the following three (3) inquiries with regards to potential violations of Rule 7.3 of the Indiana Rules of Professional Conduct, only:
(1) An explanation for the Respondent’s failure
to file with the Disciplinary Commission a copy of his
letter to Donna Weiss, as purportedly required
by Indiana Rules of Professional Conduct 7.3(c);
(2) An explanation for the Respondent’s failure
to remit a fee of Fifty dollars ($50.00) in association
with filing a copy of his letter to Donna Weiss
as purportedly required by IRPC 7.3(c);
(3) An explanation for the Respondent’s failure to
include the notation “Advertising Material” on his
letter to Donna Weiss, as purportedly required by
(4) Respondent’s First Response Letter:
In a polite and prompt manner a response letter, dated September 14, 2008, was prepared and sent by me to the Commission’s Executive Secretary, containing only a respectful, remorseful, and suitably apologetic answer.
My letter stated my preparedness to accept full responsibility for having
committed by inadvertence and not design a technical violation of Rule 7.3(c) for the reason that my letter to DW, in fact, had omitted a notation identifying it is “Advertising Material,” the inclusion of which is mandated by Rule 7.3(c) only if the correspondence is considered to be a “solicitation” letter.
Further, it was readily admitted by me that a copy of my letter to DW had
not been filed with the Disciplinary Commission, and a filling fee of Fifty dollars ($50.00) had not been remitted, both in apparent violation of Rule 7.3(c).
At such time, it was my reasonable expectation to receive the imposition of
discipline no greater than a private or informal reprimand or admonition for my confessed omissions.
(5) Commission’s Notice of Docketing for Investigation:
No further notice concerning the grievance was received by me until my
unexpected receipt of the Executive Secretary’s letter dated March 5, 2009.
The letter states that the grievance was being reclassified as misconduct and
submitted to the Disciplinary Commission:
” …. to determine whether there is reasonable
cause to believe (emphasis added) that you have
been guilty of misconduct which warrants
discipline (emphasis added) or whether the
grievance should be dismissed.”
No charge in addition to the three (3) alleged misconduct violations of Rule
7.3 as described in the initial letter to me, dated September 8, 2008, was included in the letter dated March 5, 2009.
In summary, the only alleged violations which had been disclosed to me and
for which there was extended my essential and due process right or opportunity to reply, as required by Sections 10(a)(2) and 10(d) of Rule 23 of the Indiana Rules of Admission to the Bar and the Discipline of Attorneys, were the three (3) alleged misconduct violations of Rule 7.3(c), only, as described in the Commission’s initial letter, dated September 8, 2008.
(6) Respondent’s Second Response Letter:
Another apologetic and very respectful letter was sent promptly by me to the Executive Secretary, dated March 10, 2009. The letter most politely expressed my sincere remorse and my dutiful acceptance of full responsibility for commission of the three (3) technical notation imprint, filing, and fee remittance requirements of Rule 7.3(c), as specifically enumerated in the Executive Secretary’s initial letter, dated September 8, 2008.
During the six (6) month interlude following my letter dated September 14,
2008, and the Commission’s notice of docketing for investigation, dated March 5, 2009, it was my expectation that the reply provided in my letter dated September 14, 2008, would be, was, or had been regarded by the Commission as sufficient to result in dismissal of the grievance, due to the absence of any “reasonable cause” to believe that the grievance involved a “substantial question” of attorney misconduct necessitating its docketing for further investigation and formal prosecution.
Otherwise, what was the “reasonable cause” for classifying as “substantial”
and labeling as a “question” the three (3) technical violations of Rule 7.3(c) which had been admitted by me in my previous response letter to the Commission?
However, the Disciplinary Commission does not extend the professional
courtesy of providing any explanation for its decisions.
With submission of my letter dated March 10, 2009, my mind was prepared
again to accept a private or informal disciplinary reprimand or admonition for my admission of relatively trivial misconduct in the context of the misdeeds committed in the society in which we live and work.
(7) Commission’s Notice of Additional Charges:
On October 26, 2009, a third and nebulous letter from the Executive
Secretary was prepared and sent to me.
The letter notifies me that an expanded investigation had been made for an
unspecified “additional charge,” related presumably to the content of one (1) declarative and factually correct sentence which had been discovered by the Disciplinary Commission staff on my professional ten (10) page internet website developed and published solely to describe my law office in Coldwater, Michigan, operated by me pursuant to the authority of a license to practice law, which had been issued to me in February, 1976, by the Michigan Supreme Court.
(8) Respondent’s Third Response Letter:
During the seven (7) month interlude following my letter dated March 10,
2009, and the Commission’s notice of unspecified additional charges sent by means of its letter dated October 26, 2009, it had been presumed by me that the reply provided in my letter dated March 10, 2009, would be, was, or had been regarded by the Commission as sufficient to result in its dismissal of the grievance, due to the absence of any “reasonable cause” to believe that the grievance involved a “substantial question” of attorney misconduct necessitating its further investigation and formal prosecution.
My receipt of the letter dated October 26, 2009, became the tipping point
event in my future relationship with the Disciplinary Commission.
Rather agitated, angered, exasperated, and perplexed by the Executive
Secretary’s weird internet web surfing activities, apparently launched for the purpose of discovering other acts of prohibited “misconduct” by me, a letter response was sent by me to the Executive Secretary, dated October 29, 2009, which essentially stated that this process had gone far enough.
(9) Filing of the Verified Complaint:
Reacting angrily and emotionally to my letter reply, dated October 29, 2009, the Executive Secretary “promptly” presented to the Disciplinary Commission at its regular monthly meeting in Indianapolis on November 13, 2009, his formal report and recommendations with regards to his fifteen (15) month investigation of my professional alleged misconduct.
The Commission, with immunity from civil liability, conducts its official
deliberations in closed door session, behind a veil of secrecy, and does not make available access to its agenda, a transcript of proceedings, or a copy of the formal minutes of the monthly meeting at which the Executive Secretary’s report and recommendations of his investigation of my purported misconduct was submitted to the Commission for its consideration.
Acting simply in furtherance of a consent agenda at its regular monthly
meeting on November 13, 2009, the Commission made its determination that there exists “reasonable cause” to believe that it had sufficient facts to prove my guilt by the “clear and convincing evidence” standard, as required for proof of misconduct so reprehensible as to warrant disciplinary action, thereby proceeding to authorize the Executive Secretary to file on its behalf a Verified Complaint.
The filing of a two (2) count Verified Complaint was completed on
November 23, 2009.
A copy was delivered to my personal residence on Wednesday, November
25, 2009, the day preceding my family’s annual gathering for its traditional
(10) Respondent’s Answer to the Verified Complaint:
An Answer was mailed by me on December 3, 2009, and received by the
Clerk on December 9, 2009, according to the postal receipt.
In my Answer, the two (2) count allegations of my misconduct were denied
as being untrue for the reason that the allegations, indeed, are untrue.
(The formal hearing was conducted at the Commission’s downtown office in
Indianapolis, Indiana, on Monday, May 3, 2010.)
B. Dissection of the Verified Complaint:
(1) General Comments:
The Verified Complaint is formatted as two (2) separate and unrelated
counts, or “theories” of misconduct.
Count I pertains to the letter from me to DW. Count I alleges two (2)
separate forms of misconduct, both related to the letter.
First, Count I alleges misconduct limited to Rule 7.3(c), only, as more fully
described or referenced in the two (2) notification letters sent by the Commission to me, dated September 8, 2008, and March 5, 2009, regarding the letter to DW. Those allegations are contained in Paragraphs four (4), five (5), six (6), seven (7), eight (8), nine (9), and twelve (12) of Count I.
The other and separate or distinct misconduct alleged in Count I, as recited
in Paragraphs ten (10), eleven (11), and thirteen (13), is based upon Rule 7.2, only, pertaining to “public” communications by an attorney. There was no notice of that alleged misconduct prior to my receipt of the Verified Complaint.
Count II is based solely upon a sentence included on my internet website for
my law office in Coldwater, Michigan. Count II alleges that the presence of the sentence published on my internet website violates Rule 5.5 which by its title is concerned with the unauthorized practice of law, presumably in my case related to my Indiana law license, inactive status since on or about August 24, 2009.
(2) Count I Rule 7.3(c) Violations:
The violations described in Paragraphs four (4), five (5), six (6), seven (7),
eight (8), nine (9), and twelve (12) of Count I are the only assertions of misconduct described or referenced in the Executive Secretary’s formal notice letters dated September 8, 2008, and March 5, 2009.
The violations described in Paragraphs four (4), five (5), six (6), seven (7),
eight (8), nine (9), and twelve (12) of Count I are based solely upon Rule 7.3(c), only.
Proof of the Rule 7.3(c) charges is dependent upon the Commission’s ability
to present clear and convincing evidence that the single page correspondence sent by me to DW was a “solicitation” letter.
The word “solicitation” and the phrase “solicitation letter” are not defined in
the Indiana Rules of Professional Conduct.
Furthermore, in attempting to enforce its overreaching regulation of its
version of so-called “solicitation letters,” the Commission nudges precariously close to committing a prohibited violation of the United States Supreme Court decision in the landmark protected “commercial free speech” case entitled Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988).
In simple terms, the United States Supreme Court has made clear that the
general population’s right to be informed about their legal remedies and to receive information which identifies the sources available for furnishing legal services is greater than the interest of the organized bar to control, by its use of oppressive penal restrictions, informative and direct marketing or advertising by its attorney members.
Indeed, in the state of Michigan, where my law office has been located since
1976, the Rules of Professional Conduct, with regards to the regulation of
“solicitation” activities by attorneys, state as follows:
” …. nor does the term “solicit” include ‘sending
truthful and nondeceptive letters to potential clients
known to face particular legal problems’ as elucidated
in Shapero v. Kentucky Bar Association……
“…. the United States Supreme Court has modified
the traditional ban on written solicitation …
“Advertising and permissible communication make
it possible for a prospective client to be informed about
the need for legal services, and about the qualifications
of available lawyers and law firms …..”
(Michigan Rules of Professional Conduct, 7.2)
Accordingly, it was impossible for the Commission to prove by “clear and
convincing” evidence that my letter to DW is a regulated “solicitation letter” since its obvious primary purpose, as sanctioned by the United States Supreme Court, is to inform its addressee that she should consider seeking reliable information regarding her legal rights from an experienced source, rather than being influenced improperly by the self-serving biased advice and filtered information cleverly provided to her by the claims representative of the liability insurer for the person liable or legally responsible for the severe injuries sustained by her in the motor
vehicle pedestrian collision reported in the local newspaper.
(3) Count I Rule 7.2 Violations:
The inclusion in Count I of misconduct allegations based upon Rule 7.2 is a
prohibited act for the reason that the Executive Secretary failed to provide me with notice of the alleged misconduct as required by Section 10(d), which directs that notice shall be given with regards to any additional charge not contained in the grievance before a report of his investigation and recommendations is submitted by the Executive Secretary to the Commission.
In the absence of notice and response, the Commission was denied the
benefit of my reply to the additional charges which must be considered as
information essential to assuring the fairness of the secretive deliberations the Commission conducts prior to authorizing the filing of a Verified Complaint.
As stated in the Executive Secretary’s initial letter to the Respondent, dated
September 8, 2008, the only misconduct arising from the grievance is limited to the minor de minimis Rule 7.3(c) charges. The charges described in Count I, Paragraphs ten (10), eleven (11), and thirteen (13), based solely upon Rule 7.2, are “additional charges” of misconduct that reach beyond the misconduct described in the Executive Secretary’s letter dated September 8, 2008.
Filing a Verified Complaint that includes charges for which prior
notification and request for comment, as required by Section 10(d), have not been conveyed to the Respondent is prohibited, and indeed, is ironically an ultra vires act of misconduct committed by the Executive Secretary and attorney members of the Commission.
It was impossible for the Commission to include in its required deliberations
consideration for my reply to (additional) charges without providing me notice of the (additional) charges and the opportunity to respond to the added allegations.
The inclusion of such additional allegations in a Verified Complaint is the
product of an ultra vires exercise of state police powers performed beyond the Commission’s limited regulatory authority as defined by Rule 23.
Furthermore, the Rule 7.2 charges are superfluous.
Rule 7.2 violations depend entirely upon the distribution of a “public”
communication. Rule 7.2 does not apply in any manner to any form or type of “private” correspondence.
A classic example of a form of “private” correspondence is the letter sent by
me to DW. Few communications, perhaps only pillow talk between spouses or the remorseful admissions whispered by a penitent confessor to a priest, are more private than a letter addressed to one (1) person and delivered exclusively to that person by use of the United States postal system.
By contrast, a “public” communication by an attorney would be made by
communicating to the general public by use of the medium of a radio or television advertisement, restaurant table placemat, highway billboard, widely distributed single sheet flyer or brochure left in plain view on a rack in a supermarket vestibule, box ad on the back page of a church bulletin, display in a weekly shoppers guide or local general circulation newspaper, speech at a noon service club luncheon, or a press release.
Again, few spoken or written remarks are more private than a letter
addressed to one (1) solitary addressee and transmitted in a sealed envelope to its intended recipient by use of the United States postal system.
When asked to explain the Commission’s characterization of the letter to
DW as a “public” rather than a “private” communication, the Executive Secretary was unable to furnish a meaningful response.
In summary, the ultra vires additional misconduct charges appearing in
Count I, Paragraphs ten (10), eleven (11), and thirteen (13), based solely upon Rule 7.2, should have been disregarded as a basis for imposing any form of misconduct sanctions.
(4) Count II Rule 5.5 Violation:
The ultra vires exercise of including Rule 7.2 violations in Count I is
exceeded only by the incomprehensible charge formulated in Count II.
The Commission interpreted a single sentence contained in a ten (10) page
internet website, developed and maintained by a Michigan licensed attorney who has been located in Coldwater, Michigan, since February, 1976, as constituting the “unauthorized practice of law” in the State of Indiana.
The Commission was promoting the belief that a law license granted by the
Indiana Supreme Court is a license which authorizes its holder to “practice Indiana law.” That is an overly narrow and restrictive interpretation of the privilege granted to a person who has been admitted to the practice of law.
The legal authority granted to me by the law license, issued to me by the
Michigan Supreme Court, extends to the practice of law involving the laws of any state jurisdiction, global nation, or other governmental entity, without being restricted to “practicing Michigan law.” A license to practice law in Michigan also entitles its holder to appear and represent a client in legal proceedings in the judicial courts of the State of Michigan.
Likewise, an Indiana law license does not authorize an attorney only to
“practice Indiana law,” as alleged by the Commission. The license authorizes its holder to practice law in the State of Indiana and to appear on behalf of a client in legal proceedings in the judicial courts of the State of Indiana.
The affidavit which is signed by an Indiana attorney to classify his law
license as “inactive” requires him to affirm only that he (1) is not practicing law by use of a law office located in the State of Indiana, and (2) he is not using his Indiana law license as the basis for a client to engage the services of the attorney.
The only “benefit” an Indiana attorney gains from arranging for his license
to be classified as “inactive” is that he pays only fifty percent (50%) of the annual fee, or the reduced amount of Fifty Seven dollars fifty cents ($57.50), and is relieved of the requirement to complete a mandated minimum number of hours of continuing legal education relative to Indiana law.
The only prohibition placed upon me in practicing law at my law office
location in Coldwater, Michigan, is that my professional performance must abide by the Michigan Rules of Professional Conduct regarding competency. Simply, a lawyer is obligated to decline the invitation to represent a client if the matter requires knowledge that is beyond the experiences of that lawyer or requires access to information not available to the lawyer by means of reasonable diligence through the use of legal research (MRPC 1.1).
Indeed, from my law office in Coldwater, Michigan, over a period of thirty
four (34) years, it has been my privilege to represent clients in matters that have required me to be informed and sufficiently knowledgeable about the laws of Indiana, Kentucky, Tennessee, Georgia, South Carolina, Florida, Ohio, Illinois, California, Nevada, Wisconsin, and New York.
The diverse activities performed in my representation of those clients
involved, very simply, the “practice of law,” as authorized by the Michigan law license that since February, 1976, has permitted persons to seek and request my services and engage me as their attorney for the practice of law in Michigan, as deemed necessary and proper by me in order to represent or pursue the legal interests of those clients.
My professional profile includes possession of an Indiana law license since
it was granted to me in a ceremony in the Supreme Court of the State of Indiana on a brisk late autumn afternoon in September, 1972.
My Indiana law license enabled me to report for active duty with the United
States Navy Judge Advocate General’s Corp, in early October, 1972, and serve with distinction in the Western Pacific fleet as the youngest staff judge advocate during my period of overseas naval service.
Since February, 1976, my practice of law has occurred exclusively in
Coldwater, Michigan, by use only of my Michigan law license, with few and brief exceptions. My appearance and participation in the judicial courts of Indiana have occurred only at such times as my Indiana law license was classified in an active status.
In 2005, there was a brief and unsuccessful attempt by me to “test the
waters” in LaPorte County, and operate a law practice from an office location in Michigan City, Indiana, near my residence. That experiment was halted when it became obvious to me that income was being lost by not focusing my entire energy and full attention upon my successful and established law practice in Michigan.
In 2008, during the period when the letter was sent to DW, my assistance in
an “of counsel” relationship was provided to an attorney in Michigan City, Indiana, to assist him on a temporary basis with the management of his client case files when he encountered a “staffing crisis” due to the sudden departure of associate attorneys in his law office. The relationship continued until early June, 2008.
Since June, 2008, following rededication of my full attention to my law
practice in Michigan, there has been no appearance by me in any court in any judicial proceeding in the State of Indiana. There has been no office occupied or staffed by me in the State of Indiana for the practice of law in Indiana.
Count II charges me with a violation of Rule 5.5 of the Indiana Rules of
Professional Conduct. That rule states:
“A lawyer who is not admitted to practice law in
this jurisdiction shall not hold out to the public or
otherwise represent that the lawyer is admitted to
practice law in this jurisdiction.”
Obviously, a lawyer who is admitted to practice law in Indiana, whose name
appears on the Roll of Attorneys, is not a “lawyer who is not admitted to practice law” in Indiana. My name was added to that Roll of Attorneys and has remained on it since September, 1972.
In addition, IC 33-43-2 defines the unauthorized practice of law as being the
actions of a person who (1) professes to be a practicing attorney, or (2) conducts the trial of a case in a court in Indiana, or (3) engages in the business of a practicing lawyer, without first having been admitted as an attorney by the Supreme Court of Indiana.
The Respondent was admitted to the practice of law in Indiana by the
Supreme Court of the State of Indiana thirty eight (38) plus years ago, on
September 26, 1972, according to the certificate displayed in my law office.
For the foregoing reasons, it was irresponsible for the Commission to file
charges of misconduct as alleged in Count II of the formal Verified Complaint. It is an absurd, ridiculous, and sui generis theory of misconduct to state that an attorney with a law license does not have a law license. Count II is void ab initio, invalid from the moment of its creation.
Furthermore, it should be noted that the Commission chooses to disregard its obligation to utilize the Michigan Rules of Professional Conduct for determining misconduct related to Count II.
Specifically, Rule 8.5 of the Indiana Rules of Professional Conduct mandate
the use of the Michigan rules since the alleged misconduct does not arise from activity occurring in an Indiana tribunal. The “misconduct,” namely the content of one (1) sentence contained on a ten (10) page internet website registered to my law office address in Coldwater, Michigan, occurred or occurs daily in the State of Michigan and has its predominant effect in the State of Michigan.
With regards to Count II, the Commission committed the same sin of
omission as it did in violating the obligatory notice requirements relating to
inclusion of the ultra vires Rule 7.2 charges contained in Count I.
The notice of the “additional charges” given by the Executive Secretary by
means of the letter dated October 26, 2009, is deficient for its failure to cite any specific Indiana Rule of Professional Conduct, statute, or other relevant provision regulating attorney behavior as the alleged violation committed by me.
The notice sent to me with the Executive Secretary’s letter dated October 26, 2009 not only lacks a date but also and more significantly it fails to do more than reference a single sentence excerpted from my professional internet website registered to a Michigan domain name.
There is no reference to any particular rule governing the regulation of
attorney conduct; apparently, it was required of me to play a Jeopardy type game of words with the Executive Secretary and guess which provision in a governing code of professional conduct had been violated, pursuant to the deficient “notice” from the Executive Secretary.
A person is prohibited from replying effectively and persuasively in defense
of his actions unless he has been informed properly as to the basis of the
“additional charges” which must be linked by the Executive Secretary to a specific rule of professional conduct.
The first actual notice that the excerpt included in the notice of additional
charges lifted from a single and harmless sentence published on my professional internet website was viewed by the Commission as constituting the “unauthorized practice of law” was my initial reading of Count II of the Verified Complaint, following its service and delivery to my home on November 25, 2009.
Filing a Verified Complaint that includes misconduct charges for which
prior notification and request for comment, as required by Section 10(d), have not been conveyed to me, is a prohibited act, and indeed, ironically, an ultra vires act of misconduct committed by the Executive Secretary and attorney members of the Commission.
C. Indiana Supreme Court Order:
It is remarkable that the Indiana Supreme Court’s decision recognizes
repeatedly that the misconduct allegedly committed by me should have resulted in a relatively minor form of discipline, such as a private admonition or public reprimand.
What the Court fails to answer or explain is the Disciplinary Commission’s
quixotic decision to use the formal Verified Complaint pathway for disposition of the relatively minor misconduct charges alleged against me. The charges should have been addressed and resolved as a section 12 administrative disposition.
What launched my mind into a flow of unflattering words and phrases was
the decision made by the Disciplinary Commission to submit this matter to the format of a Verified Complaint in preference to its clear suitability for disposition pursuant to the informality and expedited route of section 12 of Rule 23.
Furthermore, the harsh disciplinary sanction imposed upon me by the
Indiana Supreme Court is an outrageous example of overzealous enforcement of its rules pertaining to attorney misconduct and discipline.
Indeed, the punishment imposed conflicts with the sanctioning guidelines
established by the American Bar Association, supposedly adhered to by the
Indiana Supreme Court.
The suspension of a law license as punishment for words spoken or written
in a person’s capacity while acting as an advocate for his interests as a respondent in a disciplinary proceeding is unprecedented. It further represents an example of punishment imposed without the prerequisite notice of the alleged misconduct, essential for providing an opportunity for the attorney to respond to the charge(s).
Suspending an attorney’s license for words spoken or written during a
relatively private quasi-judicial or administrative proceeding could have a chilling effect upon an attorney’s right to due process and freedom of speech.
It is disingenuous for the Indiana Supreme Court to characterize the words it finds offensive as evidence of a lack of remorse, insight, awareness, and respect for the entire disciplinary process. However the Court attempts to disguise its purpose, the obvious result is that the suspension was given for misconduct not charged in the Verified Complaint.
It is disturbing how casually the Court made its recognition of the violation
of its misconduct rules as alleged in the Verified Complaint. What is clear is only that it is unclear that violations of any rules were proven by clear and convincing evidence, as required to impose disciplinary sanctions for attorney misconduct.
On the conflict of laws issue posed by Count II, the Court flattened that
obstacle by finding that the “predominant effect” of the website for my Michigan based law office is the State of Indiana.
Interestingly, the Michigan rule explicitly favors the attorney’s reasonable
expectations with regards to the location of the predominant effect of his actions:
“ …. A lawyer shall not be subject to discipline if
the lawyer’s conduct conforms to the rules of
a jurisdiction in which the lawyer reasonably
believes the predominant effect of the lawyer’s
conduct will occur.” (MRPC 8.5(b)(2)).
For reasons unexplained, the Indiana version of 8.5 omits the above passage regarding the lawyer’s reasonable expectations. The Michigan rule should have been considered influential by the Court in reviewing the conduct of an attorney whose law office is based in Michigan, and not Indiana.
It seems unconscionable to suspend an attorney’s law license for conduct not charged in the Verified Complaint without, as a minimum, summoning the attorney to appear before the Court to justify his perceived added misconduct committed during the course of the disciplinary proceedings.
D. Personal Remarks:
By admissions in its opinion issued on February 11, 2011, the Indiana
Supreme Court recognizes that the charges stated in the Verified Complaint do not justify imposition in the form of the suspension of an attorney’s law license.
However, the discipline is consistent with the excessive response that has
characterized the entire course of the disciplinary proceedings involving me.
I am deeply offended and highly agitated by the experience I have had with
the Indians Supreme Court Disciplinary Commission. Let me list and explain my reasons.
This entire ordeal or process has been without any purpose or gain to be
achieved for the benefit of any person or entity. It is a waste of time and resources.
I am a very busy attorney. On average, I will have fifteen (15) to twenty five
(25) prospective clients call my law office weekly, seeking my services as an
attorney. I typically accept the invitation from two (2) or three (3) persons, and open approximately one hundred (100) new client case files annually.
I do not have extra time in my day to focus my energy and attention upon
charges that are ridiculous and, to borrow from a child’s vocabulary, silly. I have not had a real vacation in five (5) years and I cannot imagine any day in the future when I would retire from my work as an attorney.
Frankly, I am most fortunate to love my work. I enjoy helping people, and I
particularly enjoy the surge and sensation of “leveling the playing field” by
stepping into a dispute and representing the individual in a battle with an insurance company, an indifferent corporate entity, or a stubborn bureaucrat. I enjoy helping win those who are not supposed to win, who have the odds stacked against them.
I have not stolen from a client, misused my law office’s client trust account,
been convicted of a felony, been caught operating a meth lab in my cellar, or been arrested for selling illicit drugs on a school yard. I am not a pedophile, a felon, a cheat, a liar, a drunk, or a con artist.
What I did do was type and send a letter to a person who I believed might
benefit from speaking to me or another attorney about her legal rights, specifically, her lawful right to obtain insurance compensation to cover her medical care expenses and possibly her loss of income, if any.
That’s it. And, because of that single and simple letter, I have been forced to
devote uncountable hours to defending my reputation, my integrity, my livelihood, and my honor.
There has been no victim of my alleged misconduct. No one has been
harmed, no one has been hurt, no one has been violated, and no one has suffered any financial loss.
The Disciplinary Commission’s staff attorney should be investigating and
pursuing charges against a person who has victimized an innocent client, who has dishonored the legal profession, or who has displayed disrespect for our peaceful system that utilizes the rule of law to reconcile disagreements.
Since February, 1976, I have been a sole practitioner, starting with day one
(1) in Coldwater. I knew little about the law when I arrived in Coldwater, equipped only with great optimism and high expectations for the opening of my neophyte law practice.
In the past, I bragged about the fact that I am the only person to arrive in
Branch County, in recorded history, and open a law office, alone, and without any past connection to the region’s population. I have learned to keep silent about that fact.
It seems now to be more a reflection of my youthful foolishness and
undeserving vanity rather than a compliment to my skills or an indication of my use of good judgment.
I had no choice but to learn the law the old fashioned traditional way, by
devoting hours to research and reading the law. I had no senior partner, no family member in the bar, no close friend nearby and available to explain the intricacies of the law to me.
In those early years, my teaching mentor was my personal law library,
consisting of great classic works such as Michigan Pleading and Practice,
Michigan Civil Jurisprudence, Nichols Legal Forms, Michigan Statutes Annotated, Michigan Case Digest, Gillespie on Criminal Law, and Michigan Basic Law Handbooks. I enjoyed learning the law from the source books and I committed myself to doing my work the right way.
I am not a classic self-promoter, blowing a horn in public medias about my
professional prowess. My clients do not come to my law office as a result of
advertising, self-promotion, or solicitation letters.
People call my law office seeking my services based upon traditional “word
of mouth,” referrals, spoken by family members, friends, co-workers, doctors, lawyers, barbers, teachers, and any other person who has or knows someone who has benefited from my assistance and voluntarily recommends me as a competent and caring attorney.
My ad in the yellow pages states only my surname, displays an artist’s
rendition of my distinctive law office building constructed under my direction in 1988, and my telephone numbers. No picture of my face, no testimonials about my achievements, no boasting about the potential benefits of my services.
I have developed a reputation for politeness, courtesy, and integrity in the
territorial region that surrounds my law office in the center of Branch County, Michigan. I am respected for my knowledge of law, my adherence to the highest standards of professional ethics, my personal values, my devotion to family, and my empathy for the suffering endured by others.
After serving nearly four (4) years in the United States Navy as a proud and
dutiful member of the Judge Advocate Corps, I migrated with my spouse, Theresa, and our then nine (9) month old son to our new home in Coldwater, Michigan, arriving in early February, 1976.
We had no ties, history, or family connection to Coldwater or Branch
County, Michigan. We selected Coldwater to be our new home community
after we spent months studying the features of cities and towns in both lower Michigan and northern Indiana.
We spent our first week in Coldwater living in a motel. Then we located a
rental home, and eight (8) months later, bought our first house. We remained in Coldwater for twenty six (26) years, until 2002, when we sold our house on Alandale Drive and purchased a new home near New Buffalo, Michigan, along the picturesque south shore of Lake Michigan.
My spouse and I have five (5) children, and they are the most important part of my life. Four (4) of my children attended and graduated from the University of Notre Dame. The fifth, and youngest, dances to the beat of a different drummer, and attends college in West Lafayette.
Except for my youngest child who attends college, my children live and
work in Chicago or its nearby suburbs. We are blessed to have three (3) beautiful grandchildren.
I have been a youth baseball, soccer, and football coach. I have served on
numerous community committees in Branch County, and I have donated hundreds of hours of professional service and my time to assist worthy local causes and projects.
I alone paid the purchase price and donated to Coldwater High School
thousands of “Cardinal Basketball Fanatics” spirit shirts, without any recognition imprinted on the shirts to identify them with either me or my law office.
I purchased and delivered hundreds of “We Play for the Cardinals” spirit
shirts to Coldwater High School to be worn by members of the Pep Band, without any notation imprinted on any shirt to identify it with me or my law office.
Indeed, I suggested the catchy slogan for a successful public financing
campaign which allowed school administrators to receive millions of dollars used to expand and modernize the buildings on the campus of Coldwater High School.
I alone donated the money and completed the arrangements to have the
photo of every conference and/or state tournament championship team at
Coldwater High School framed, inscribed, and mounted on the wall of the lobby outside the new gymnasium.
Every athletic championship trophy was cleaned, newly inscribed, and
placed in sets of new glass enclosed trophy cases, all purchased at my sole
The classic and oversized 1949 state basketball championship photo was
placed in a new shatter proof glass frame, and mounted above an inside door of the new gymnasium, reminiscent of the iconic and memorable final scene in the movie Hoosiers, all completed at my expense, alone.
I conceived the design and I alone paid the price for the decoration of the
new gymnasium lobby with the decorative plaques honoring members of
Coldwater High School’s athletic hall of fame.
I have sponsored and paid the expenses to provide dozens of free executive
training seminars for businesses in Branch County. As the master of ceremonies, I have hosted numerous community banquets. I have been honored to have been selected to be the featured speaker at Memorial Day ceremonies in Branch County.
I conceived, designed, and paid all the expenses to provide Branch County
citizens with the opportunity to participate in a “Community Law School Night” in conjunction with Law Day festivities. The State Bar of Michigan requested my organizational notes for its use and distribution to encourage the sponsorship of similar programs by local bar associations.
I developed, paid the costs, and hosted a local cable television show titled
“Branch County Lawyers,” which featured my interviews with various members of the local bar association, allowing attorneys to reveal and share their unique personal interests and narrative stories with the public.
I am a published writer. I have contributed numerous “opinion essays” to
Michigan Lawyers Weekly. I have written a popular weekly column, published locally, expressing introspective thoughts or commentaries about life, people, community, and events.
In 1998, I served as a one (1) person committee, supervising and directing
the reopening of a closed Catholic elementary school, a feat that had never been accomplished before in the diocese.
Hundreds of hours, without compensation, were devoted by me to the task,
from installing playground equipment, planting sod, recruiting and hiring faculty, delivering progress reports to the parishioners, recruiting and enrolling students, and conducting sensitive negotiations with the community school administrators to promote cooperative sharing of resources for the benefit of the students.
Also, I contributed over Ten Thousand dollars ($10,000.00) quietly and
anonymously, for the purchase of desks, books, and other classroom equipment or supplies.
I have been married for thirty eight (38) years, and my spouse is the best part of my life. She is the ideal mother, friend, and fan, encouraging me to be myself, and to enjoy the beauty of each day.
My father remains alive. He is now ninety six (96) years old and he resides
alone, in the family home he built in 1939. He lost the cherished companionship of his wife and my mother when she passed away in early February, 2009, at the age of eighty nine (89) years.
An immigrant from his native Italy, my father traveled alone, by boat, across the Atlantic Ocean, arriving at Ellis Island in 1932, in the depth of the Great Depression. He spoke no English, had no trade, or marketable skills, but he had a love for life, a zest of living, and a faith which inspired him to work hard and expect the rewards of success to follow the performance of good deeds for others.
I graduated from the University of Notre Dame in 1969, and with a full
scholarship, attended and completed the course of studies at Notre Dame Law School in 1972. I was admitted to the Indiana Bar on September 26, 1972, and began serving in the United States Navy three (3) weeks after my admission to the bar.
I have remembered always, frequently referring to it, at least on a monthly
basis, the unforgettable commencement speech delivered by a popular professor at my law school graduation ceremony.
He rose from his chair on the stage, stepped forward to the podium,
straightened his cap, and spoke as follows: “Don’t tell a lie.” That’s it. No other words of inspiration. Yet, throughout my career of nearly thirty eight (38) years as a lawyer, faced with many temptations to do wrong or conceal the truth, I have never forgotten those words. I always try never to tell a lie.
In the Navy, I was assigned in October, 1972, to Newport, Rhode Island, and in early 1973 to the Ryukyu Island and Okinawa in the western Pacific for an eighteen (18) month deployment. In midsummer 1974, I was reassigned to the Twelfth Naval District headquarters in San Francisco, California, where I served as a trial defense counsel.
While serving in Okinawa, I was the Navy’s youngest staff judge advocate,
and I had the enviable privilege of going aboard such historic vessels as the U.S.S. Enterprise, Coral Sea, Midway, Blue Ridge, Ranger, and the Juneau.
I served in Okinawa during the crucial year in which it reverted to the
jurisdiction and laws of the country of Japan, necessitating my authorship of numerous opinions, perhaps still followed today, interpreting complicated and diplomatically delicate provisions in the Status of Forces Agreement. I personally hosted the Navy’s Judge Advocate General during his days in Okinawa while making his annual worldwide tour of legal service facilities.
At the completion of my naval service, I was honored by the receipt of
personalized letters of recognition and appreciation from both Commander Fleet Activities Okinawa (CFAO) and Commander-in-Chief Pacific Fleet (CINCPAC).
I valued the fact that I had the opportunity to serve with the fleet in the
western Pacific, experiencing the “real” Navy in contrast to the limited view
provided by a desk and chair in an office located stateside. I cherish my memories of my service in the Navy. Indeed, when the Naval Academy plays Notre Dame in football, I cheer for the Navy and proudly join in the singing of Anchors Aweigh!
My father is a World War II veteran. He landed at Normandy Beach, fought
with Patton’s Third Army as it marched into Germany, engaged the enemy in the famed Battle of the Bulge, and returned home to his wife and my mother in 1946. Soon thereafter I was conceived, and today here I am!
My father and mother taught me to honor my family name. I would never do anything to discredit them, my ancestors, or my relatives. Because of the lessons they taught, I value and protect my name, my heritage, and my family honor.
I am incensed and angered by the Indiana Supreme Court’s disparagement,
of my character, its smears of my reputation, and its effort to diminish my public image.
In a thumbnail, that is who I am. I am proud of my accomplishments,
humbled by the compliments given to me, and grateful for the love of my family. But, I remain justifiably angry and disappointed with the Indiana Supreme Court and its Disciplinary Commission.
For the past thirty four (34) plus years, my successful but modest sole
proprietor law practice, performed as a simple small town county seat lawyer in Coldwater, Michigan, has been the consequence of my faithful commitment to the belief that my law license obligates me to help others.
We have in our communities an abundance of lawyers who have been
educated in the business of making money, accumulating fictitious billable hours, playing clever games with rules of discovery and civil procedure, never recognizing or expressing in their workday that the only legitimate purpose of our profession is to help others.
When a potential new client enters my law office, immediately following
our introduction, he or she is asked “How can I help you?” That’s the important question. That is why he or she has come to me, seeking my help.
That is a near sacred duty of an attorney. And, it is the source for that which
is most gratifying to me about my profession. Helping others brings more pleasure and satisfaction to me than any other activity in my life.
I value and cherish my law licenses. I will protect and defend them against
anyone who attempts to tarnish, deface, or stain them. There is no separation, no division, no compartmentalization between private and professional in my life.
According to the Indiana Supreme Court, I represent a menace and risk to
the citizens of Indiana. But, being me is being a lawyer. I am proud to be the
person I am, and I will not change to please the justices of the Indiana Supreme Court, bow in adoration, curtsy with an apology for my words and views, or dance like a string puppet to please those pompous arrogant bastards.
Patrick K. Rocchio
Former Indiana Attorney
Post Office Box 514
Coldwater, Michigan 49036