## Facts

- Richard J. Thonert, an Indiana attorney, represented a criminal defendant seeking to withdraw a guilty plea and pursued an appeal.
- Thonert knew of an Indiana Supreme Court decision that was controlling and directly adverse to his client’s appellate position.
- Opposing counsel did not cite the adverse controlling authority.
- Thonert did not cite the adverse controlling authority in his appellate brief and did not otherwise disclose it to the appellate tribunal.
- Thonert also failed to advise his client of the adverse controlling authority while the client was considering whether to pursue the appeal and evaluating available legal options.
- The Disciplinary Commission brought an attorney discipline action, and the matter was submitted to the Indiana Supreme Court on an agreed statement of facts and a conditional agreement proposing discipline.

## Issues

1. Whether an attorney violates Indiana Professional Conduct Rule 3.3(a)(3) by failing to disclose controlling authority known to be directly adverse to the client’s position when opposing counsel does not disclose it.
2. Whether an attorney breaches duties owed to the client by failing to inform the client of controlling adverse authority when the client is deciding on litigation options.
3. What sanction is appropriate when the matter is presented on a conditional agreement for discipline.

## Decision

- The Indiana Supreme Court approved the parties’ conditional agreement for discipline.
- The Court found that Thonert violated his duty of candor by failing to disclose controlling, directly adverse authority to the appellate tribunal when it was not disclosed by opposing counsel.
- The Court found that Thonert also failed to advise his client of the adverse authority while the client was considering legal options.
- The Court imposed a public reprimand.

## Legal Principles

- Under Indiana Professional Conduct Rule 3.3(a)(3), a lawyer must disclose to a tribunal controlling legal authority in the jurisdiction that is known to the lawyer to be directly adverse to the client’s position when opposing counsel has not disclosed it.
- The duty of candor to the tribunal is affirmative and is not excused by an opponent’s omission.
- A lawyer must communicate sufficiently with a client to permit informed decision-making about litigation options, including disclosure of controlling authority that materially undermines the client’s position.
- Discipline may be imposed by approval of a conditional agreement when the agreed facts establish misconduct and the proposed sanction is appropriate.

## Conclusion

The Indiana Supreme Court publicly reprimanded Thonert for knowingly withholding controlling adverse precedent from an appellate tribunal and for failing to inform his client of that adverse authority when the client was deciding whether to pursue an appeal.


In re Thonert, 733 N.E.2d 932 (Ind. 2000)