In the Matter of Brent Welke ( 2019 )

FILED
Sep 10 2019, 12:01 pm
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Indiana Supreme Court
Supreme Court Case No. 49S00-1707-DI-472
In the Matter of
Brent Welke,
Respondent.
Decided: September 10, 2019
Attorney Discipline Action
Hearing Officer Heather A. Welch
Per Curiam Opinion
Chief Justice Rush, and Justices Massa, Slaughter, and Goff concur.
Justice David dissents.
Per curiam.
We find that Respondent, Brent Welke, committed attorney misconduct
by incompetently representing a client, improperly using a nonlawyer
assistant, and knowingly making false statements of material fact to the
Commission. For this misconduct, we conclude that Respondent should
be suspended for at least three years without automatic reinstatement.
This matter is before the Court on the report of the hearing officer
appointed by this Court to hear evidence on the Indiana Supreme Court
Disciplinary Commission’s disciplinary complaint, and on the post-
hearing briefing by the parties. Respondent’s 1991 admission to this state’s
bar subjects him to this Court’s disciplinary jurisdiction. See IND. CONST.
art. 7, § 4.
Procedural Background and Facts
In 2010 “Client” was charged with murder after fatally stabbing a man.
Client, whose English language skills were extremely poor, maintained he
acted in self-defense. An experienced public defender initially represented
Client, assisted by an interpreter. As the trial date approached, the public
defender and deputy prosecutor were negotiating a plea deal that
contemplated a plea to voluntary manslaughter and either a fixed or
maximum sentence of 30 years. The public defender believed that Client
would be unable to prevail on a self-defense argument but that he had a
compelling case in mitigation.
During this time, Respondent’s nonlawyer assistant, Joseph Everroad,
ingratiated himself with Client’s family, told them the public defender
would “sell out” Client, and – together with Respondent – persuaded
them that Respondent and Everroad could either successfully pursue a
self-defense argument at trial or otherwise obtain a better plea deal for
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Client.1 Client’s family hired Respondent and paid him a $6,000 retainer,
$1,000 of which was earmarked for an interpreter. The trial date was
continued following Client’s change in representation.
Respondent had not previously handled a murder case and had little or
no experience with major felonies. Neither Respondent nor Everroad had
the language fluency to effectively communicate with Client about his
case. Respondent did not hire an interpreter. Respondent did not meet
with Client at the jail and did little or no work on the case, instead
delegating these tasks to Everroad. During one meeting with Client,
Everroad brought an untrained and unpaid woman who needed
community service credit for her own criminal conviction to serve as an
interpreter, and through that woman Everroad attempted to assure Client
he had a strong self-defense case. Everroad did not bring an interpreter to
other meetings with Client. Everroad explained the purpose of these
meetings was simply to “just keep [Client] happy so [Respondent] could
get the rest of his money out of the client” and added “we didn’t even talk
about the case. We were talking about other things. Cars – things like
that.” (Tr. at 94, 97).
Shortly before the trial date, Respondent viewed post-mortem
photographs of the victim for the first time and came to believe a self-
defense or voluntary manslaughter strategy at trial would be untenable.
At a final pretrial conference, the State offered a plea to voluntary
manslaughter with a fixed sentence of 40 years. Respondent attempted to
accept the offer without consulting with Client, but after Client
complained, the court indicated the matter would proceed to trial.
Trial commenced three days later, on April 11, 2011. Respondent was
not adequately prepared and did not have a defense interpreter on hand
to communicate with Client. During a recess, using Client’s friend as an
1Everroad is a convicted murderer who was hired by Respondent following his release from
prison. After Respondent’s representation of Client had concluded, Everroad robbed a bank at
gunpoint. Everroad was convicted and sentenced to twenty years’ imprisonment. Everroad v.
State, 998 N.E.2d 739 (Ind. Ct. App. 2013).
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interpreter, Respondent communicated the State’s latest offer (a plea to
murder with a fixed term of 45 years) to Client and advised Client to take
the deal because his defense was weak. Client accepted the offer and pled
guilty to murder with a fixed sentence of 45 years.2
During the Commission’s investigation, Respondent falsely told the
Commission that Client was fluent in English and that he had visited
Client in jail several times.
The Commission charged Respondent with violating Indiana
Professional Conduct Rules 1.1, 1.3, 1.4(a)(2), 1.4(b), 5.3(b), and 8.1(a). At
the final hearing in this matter, Respondent contested only the Rule 8.1(a)
charge (involving dishonesty toward the Commission) and admitted the
remaining charges. The hearing officer filed her report to this Court on
April 29, 2019, finding Respondent committed violations as charged and
recommending a lengthy suspension without automatic reinstatement.
Discussion and Discipline
Although Respondent has petitioned this Court for review, he does not
challenge any of the hearing officer’s conclusions with respect to the
charged rule violations, including the sole charge contested during the
final hearing. Having conducted our own de novo examination of the
materials before us, we likewise conclude that Respondent violated the
following Indiana Rules of Professional Conduct:
1.1: Failure to provide competent representation.
1.3: Failure to act with reasonable diligence and promptness.
1.4(a)(2): Failure to reasonably consult with a client about the means
by which the client’s objectives are to be accomplished.
2Client’s guilty plea later was vacated in post-conviction proceedings upon findings that
Client received ineffective assistance of counsel and that his plea was not entered knowingly,
intelligently and voluntarily. Client’s case was retried in late 2016, a jury found Client guilty
of murder, and the court sentenced Client to 55 years in prison.
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1.4(b): Failure to explain a matter to the extent reasonably necessary
to permit a client to make informed decisions.
5.3(b): Failure to make reasonable efforts to ensure that the conduct
of a nonlawyer employee over whom the lawyer has direct
supervisory authority is compatible with the professional obligations
of the lawyer.
8.1(a): Knowingly making a false statement of material fact to the
Disciplinary Commission in connection with a disciplinary matter.
Respondent challenges three findings of fact made by the hearing
officer. None of these findings are material to the ultimate conclusions
reached by the hearing officer, and only the first two have potential
bearing on sanction.
Respondent first challenges the hearing officer’s finding that had Client
remained represented by the public defender, “at the very wors[t]” Client
would have been convicted of voluntary manslaughter and received an
executed sentence of 30 years. Respondent correctly observes that this
outcome had not yet reached the point of formal acceptance by the parties
and the trial court, and he points to earlier and subsequent offers made by
the State for a 40-year sentence, but Respondent’s argument misses the
forest for the trees. Not only does the evidence clearly reflect a 30-year
sentence had been placed on the bargaining table by the State and was
reasonably within reach for Client immediately prior to the change in
representation, but Respondent’s attempt to manufacture uncertainty on
this point glosses over the fact that either of these case outcomes – 30 or 40
years for voluntary manslaughter – would have been better for Client than
the outcome obtained through Respondent’s woefully inadequate
representation.
Respondent next challenges the hearing officer’s finding that he had
not prepared at all for voir dire or for the examination of witnesses,
pointing to his own self-serving affirmative answers to leading questions
from his counsel. (See Tr. at 115-116). But Respondent contradicted himself
on more probing questioning from the Commission both prior to and
during the final hearing (id. at 122-123; Ex. 19 at 54-55), Respondent
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admits having failed to provide Client with competent and diligent
representation, and on the sole contested charge the hearing officer
expressly found Respondent’s testimony during the final hearing to have
been untruthful. (See HO’s Report at 14, 28).
Finally, Respondent argues the hearing officer should have afforded
more weight to testimony of Client’s former work supervisor suggesting
that Client may have had a marginally better English-language
proficiency than other evidence indicated. But Respondent “concedes that
communicating with a supervisor of a kitchen staff and communicating
about legal matters are two very different things, and that he should have
retained an interpreter to assist him in communicating with [Client].” (Br.
in Support of Pet. for Rev. at 8). We find any possible incremental
differences in testimony on this point wholly immaterial to any matter at
hand.
We turn now to factors bearing more directly on the question of
appropriate sanction. This is Respondent’s fourth disciplinary case.3 While
the misconduct in each case has differed slightly, the cases collectively
paint the picture of an attorney whose primary motivation appears to be
the collection of legal fees rather than the provision of a valuable service
for his clients.
The instant case – involving what the hearing officer aptly described as
a “bait and switch” representation – is by far the most egregious of
Respondent’s four disciplinary cases. Prior to Respondent’s involvement,
Client was being capably represented by an experienced public defender
who was meaningfully consulting with Client and who was on the cusp of
achieving on Client’s behalf a negotiated case resolution carefully crafted
to account for the relative strengths and weaknesses of Client’s case.
However, Respondent and Everroad – exploiting inaccurate stereotypes
3See Matter of Welke, 53 N.E.3d 408 (Ind. 2016) (30-day suspension for false or misleading
advertising); Matter of Welke, 772 N.E.2d 992 (Ind. 2002) (30-day suspension for charging
unreasonable fees, failing to withdraw from representation upon being discharged by a client,
and failing to refund unearned fees); Matter of Welke, No. 13S00-9808-DI-460 (private
administrative admonition).
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about public defenders and the particular vulnerability of defendants and
their family members to unrealistic expectations – lured Client away at the
last minute with the promise that a better outcome could be had, for a
price. That promise was at best uninformed and at worst outright false;
and even a comparable outcome became impossible to achieve when
Respondent neglected the representation after collecting his fee. In the
end, switching from the public defender to Respondent earned Client a
lighter wallet, comprehensively shoddier legal representation, weakened
bargaining power, the inability to meaningfully participate in his own
defense, and ultimately a higher-level conviction and several more years
in prison than he otherwise would have received. Whether measured in
terms of process or outcome, the prejudice suffered by Client as a result of
Respondent’s misconduct was severe.
The Commission has not sought disbarment in this case. The hearing
officer recommended a lengthy suspension without automatic
reinstatement due to Respondent’s prior discipline, the significant damage
caused by Respondent’s misconduct in this case, and the risk of harm to
potential future clients. We agree with the hearing officer’s
recommendation and conclude that a suspension of at least three years
without automatic reinstatement is appropriate discipline for
Respondent’s misconduct.
Conclusion
The Court concludes that Respondent violated Professional Conduct
Rules 1.1, 1.3, 1.4(a)(2), 1.4(b), 5.3(b), and 8.1(a). For Respondent’s
professional misconduct, the Court suspends Respondent from the
practice of law for a period of not less than three years, without automatic
reinstatement, beginning October 22, 2019. Respondent shall not
undertake any new legal matters between service of this opinion and the
effective date of the suspension, and Respondent shall fulfill all the duties
of a suspended attorney under Admission and Discipline Rule 23(26). At
the conclusion of the minimum period of suspension, Respondent may
petition this Court for reinstatement to the practice of law in this state,
provided Respondent pays the costs of this proceeding, fulfills the duties
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of a suspended attorney, and satisfies the requirements for reinstatement
of Admission and Discipline Rule 23(18). The costs of this proceeding are
assessed against Respondent, and the hearing officer appointed in this
case is discharged.
Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.
David, J., dissents regarding the sanction imposed, believing
disbarment is warranted.
ATTORNEYS FOR RESPONDENT
Dina M. Cox
Neal Bowling
Kelly H. Eddy
Indianapolis, Indiana
ATTORNEYS FOR INDIANA SUPREME COURT
DISCIPLINARY COMMISS ION
G. Michael Witte, Executive Director
Angie L. Ordway, Staff Attorney
Indianapolis, Indiana
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