## Facts

- Randall and Dianna Gosnell retained attorney Charles B. Blackwelder in October 1988 to pursue an appeal from a default judgment.
- Blackwelder filed a timely praecipe, obtained and reviewed the record, but miscalculated the deadline for filing the record and failed to perfect the appeal.
- After discovering the error, Blackwelder met with the Gosnells on February 2, 1989 and presented a document titled “Retainer Agreement and Release of Claims and Covenant Not To Sue.”
- The agreement required the Gosnells to release Blackwelder from all claims arising out of his failure to perfect the appeal and to agree not to file any complaint or grievance with disciplinary authorities or bar associations.
- The agreement recited that Blackwelder recommended the clients take time to consider the offer and seek advice of another attorney, and that the clients had consulted another attorney.
- In exchange, Blackwelder reimbursed the Gosnells $2,096 in appeal-related expenses and agreed to file a joint bankruptcy petition for them and pay the filing fees.
- The Gosnells signed the agreement, obtained a bankruptcy discharge that included the default judgment and approximately $300,000 in other debt, and later filed both a disciplinary grievance and a civil malpractice action.
- The Indiana Supreme Court Disciplinary Commission filed a disciplinary complaint; a hearing officer found misconduct.
- On review, Blackwelder challenged the findings and offered newly discovered evidence that one complaining witness had later been charged with criminal conversion; the court accepted the evidence but proceeded to decide discipline based on the full record.

## Issues

1. Whether an attorney violates professional duties by negotiating a release of malpractice liability and a covenant not to file a disciplinary grievance with current clients after the attorney’s admitted error.
2. Whether the circumstances surrounding the agreement, including the asserted opportunity for independent counsel, established informed consent sufficient to avoid misconduct.
3. What sanction was appropriate in light of the attorney’s failure to perfect the appeal and the subsequent attempt to limit civil and disciplinary consequences.

## Decision

- The Indiana Supreme Court reviewed the matter de novo and treated itself as the final decisionmaker on disputed facts and discipline.
- The court agreed with the hearing officer that Blackwelder committed professional misconduct.
- The court concluded that the release and non-grievance covenant were improper in purpose and effect, particularly given the conflict created by the lawyer’s own mistake and the clients’ position.
- The court found the document’s recital regarding independent counsel was not supported by the hearing evidence to the extent necessary to cure the conflict and protect the clients.
- The court considered the newly introduced credibility evidence but determined it did not negate the core misconduct, much of which turned on undisputed documents and events.
- The court imposed public discipline.

## Legal Principles

- In Indiana attorney discipline matters, the Supreme Court conducts de novo review, gives appropriate weight to a hearing officer’s findings, and remains the final arbiter of facts and sanction.
- A lawyer may not condition remedial assistance or settlement of a client dispute on an agreement that the client will not file a disciplinary complaint; such terms interfere with the court’s regulatory authority over the bar.
- When a lawyer seeks a release from liability arising from the lawyer’s own professional error, the lawyer bears a heightened duty to avoid overreaching and to ensure the client has a genuine opportunity for independent legal advice and informed decisionmaking.
- Contractual recitations that a client consulted independent counsel are insufficient if the record shows the client did not receive meaningful advice about the specific release and related arrangement.

## Conclusion

The Indiana Supreme Court publicly disciplined Blackwelder for mishandling an appeal and then attempting to protect himself through a release and a promise that the clients would not complain to disciplinary authorities, holding that such agreements are inconsistent with lawyer duties and the public nature of attorney regulation.


In re Blackwelder, 615 N.E.2d 106 (Ind. 1993)