Discipline Action Hearing Officer Sheila M. Moss
Attorney for Respondent Thomas F. Godfrey Michigan City,
Attorneys for the Indiana Supreme Court Disciplinary
Commission G. Michael Witte, Executive Director Aaron
Johnson, Staff Attorney Indianapolis, Indiana.
that Respondent, Doug Bernacchi, committed attorney
misconduct by incompetently representing a client, charging
an unreasonable fee, improperly using and splitting his fee
with a nonlawyer assistant, and attempting to obstruct the
disciplinary process. For this misconduct, we conclude that
Respondent should be suspended for at least one year without
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
"Verified Complaint for Disciplinary Action, " and
on the post-hearing briefing by the parties. Respondent's
1990 admission to this state's bar subjects him to this
Court's disciplinary jurisdiction. See Ind.
Const. art. 7, § 4.
Background and Facts
Commission filed its "Verified Complaint for
Disciplinary Action" against Respondent on December 14,
2015, and later amended that complaint. On August 10, 2016,
Respondent was deposed under oath and admitted to the
allegations in the amended complaint. By joint motion of the
parties, the final hearing in this matter was converted to a
hearing solely on the issue of sanction. That hearing was
held on December 19, 2016, and following the submission of
proposed findings by the parties, the hearing officer issued
her report on June 1, 2017.
was hired by "Client, " who was the guardian of her
grandson, to represent her in a pending child support matter
against the grandson's parents, one of whom was
Client's adult son. A Rule to Show Cause against the
parents was pending when Respondent took over the
this time, Mario Sims was an independent contract paralegal
working for Respondent. Sims is not a lawyer. Respondent
entered into a written fee agreement with Client calling for
an $800 "non-refundable" retainer. Respondent
instructed Client to pay this money in full to Sims and
indicated he would collect his portion from Sims. Client was
directed to raise any questions she had about the case with
filed appearances on behalf of both Client and her son, who
was an adverse party. At the first hearing on the Rule to
Show Cause, which ended up being continued, Respondent told
the trial court he was there to represent the son. At the
second hearing, Respondent told the court that he was
representing Client and that he had erred in stating
otherwise at the first hearing. However, Respondent proceeded
to argue against the son being made to pay child support,
telling the court among other things that the son was
bedridden and unable to work. At the conclusion of the second
hearing, the court dismissed the Rule to Show Cause, citing
among other things the confusion over party representation.
Client did not appear at either hearing, and Respondent has
given inconsistent explanations for her failure to appear,
both to the trial court and to the Commission.
the second hearing, Respondent informed Client he had told
the Court her son was on his deathbed and should not be
obligated to pay support. Client instructed Respondent to go
back to court and correct this, but Respondent refused.
Client then requested a refund from Respondent and filed a
grievance against him with the Commission. Respondent
eventually refunded the fee about two years after Client
first requested it. Both before and after issuing the refund,
Respondent and others acting on Respondent's behalf
repeatedly called Client and attempted to persuade Client to
withdraw the grievance in exchange for the refund. Respondent
also contacted multiple members of the Commission directly in
an attempt to have the disciplinary investigation dismissed,
notwithstanding Respondent's awareness that the
Commission members were represented by counsel.
eventually lost the home she shared with her grandson after
she was unable to secure the child support ...