Indiana Reinstates Attorney With Probation Conditions
The Indiana Supreme Court has conditionally reinstated an attorney suspended for not less than 90 days without automatic reinstatement in 2022
This Court, being duly advised, finds that the hearing officer’s recommendation should be accepted and that Petitioner should be conditionally reinstated as a member of the Indiana bar and placed on probation for a period of no less than three years. The terms and conditions of probation shall include:
(1) Petitioner shall continue receiving medical and therapeutic treatment as recommended by his treatment provider(s).
(2) Petitioner, who already is under a voluntary monitoring agreement with the Indiana Judges and Lawyers Assistance Program (“JLAP”), shall remain under a long-term monitoring agreement for the duration of his probation.
(3) Petitioner shall provide a copy of his JLAP monitoring agreement to the Commission. In addition, Petitioner shall sign or update any and all authorizations necessary for JLAP to implement the monitoring agreement, including an authorization for the Commission to obtain information from JLAP, and return a copy of that authorization to the Commission within 15 days of this order.
(4) If Petitioner violates his probation, the Commission may petition the Court to revoke his probation and re-impose a suspension without automatic reinstatement.
Notwithstanding the expiration of the minimum term of probation set forth above, Petitioner’s probation shall remain in effect until it is terminated pursuant to Admission and Discipline Rule 23(16).
The facts leading to the suspension
In 2019, pursuant to a conditional agreement for discipline, we suspended Respondent from the practice of law in Indiana for 30 days with automatic reinstatement for misconduct involving Respondent’s Indiana-based law firm and its patent work with inventors. Matter of Gray, 126 N.E.3d 805 (Ind. 2019). At the time, Respondent was also consensually excluded from practice before the United States Patent and Trademark Office (USPTO) without an admission of misconduct. Respondent wound down his Indiana law firm and relocated to Florida, where he created another company, The Inventor’s Platform (TIP), under the alias Nickolas Farbacks.
TIP’s operations closely paralleled Respondent’s previous Indiana business arrangements and shared many of the same infirmities. Acting under his alias, Respondent contracted with and directed paralegals, attorneys, and others to provide services—including legal services—to TIP clients. TIP’s contracts with its customers generally forbade them from contacting the contract attorneys, and TIP paid those attorneys only a fraction of the attorney fees collected from the customers. Clients’ provisional patent applications were often drafted by nonlawyer TIP personnel without appropriate attorney supervision.
Additionally, while Respondent was excluded from practicing before the USPTO, he supervised contract attorneys’ patent work, answered any questions they had about the patent work, and discouraged them from communicating with the clients. Finally, during the course of the Commission’s investigation into Respondent’s Florida conduct, Respondent made several misrepresentations, inaccurately depicting himself as a passive instead of an active participant in TIP.
The hearing officer found Respondent’s conduct violated the following Indiana Professional Conduct Rules:
8.1(a): Knowingly making a false statement of material fact to the Disciplinary Commission in connection with a disciplinary matter.
8.4(a): Attempting to violate the Rules of Professional Conduct, knowingly assisting another to do so, or doing so through the acts of another.
8.4(c): Engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
The court
We have considered the parties’ arguments regarding each of the charged violations in this case. Upon careful review of the record before us, we find sufficient support for the hearing officer’s material findings and his ultimate conclusions. Accordingly, we find Respondent violated Professional Conduct Rules 8.1(a), 8.4(a), and 8.4(c).
Discipline: Respondent urges us to impose a 30- to 60-day suspension with automatic reinstatement for any misconduct found. But given Respondent’s prior discipline for similar misconduct and the dishonesty involved in this case, we agree with the Commission that a suspension without automatic reinstatement is warranted.
(Mike Frisch)