Wednesday, November 17, 2021

An Entirely Different Story

The Indiana Supreme Court has suspended an attorney without automatic reinstatement

In Case No. 20S-DI-27, Respondent has admitted, and we find, four rule violations arising from his trust account mismanagement and inadequate supervision of a paralegal. In Case No. 21S-DI-88, we find that judgment on the complaint was appropriately entered due to Respondent’s failure to timely file an answer and, accordingly, that Respondent committed eight rule violations as charged arising from two client representations. For Respondent’s misconduct in both cases, we conclude that Respondent should be suspended for at least one year without automatic reinstatement.

As to the charges

For Respondent’s trust account mismanagement and inadequate supervision of his paralegal, Respondent has admitted, and we find, violations of the following four rules:

Ind. Professional Conduct Rule 1.15(a): Commingling client and attorney funds.
Ind. Professional Conduct Rule 5.3(c): Ordering or ratifying the misconduct of a nonlawyer assistant.
Ind. Admission and Discipline Rule 23(29)(c)(2): Paying personal or business expenses directly from a trust account, and failing to withdraw fully earned fees and reimbursed expenses from a trust account.
Ind. Admission and Discipline Rule 23(29)(c)(5): Making cash disbursements from a trust account.

On the sole contested charge in Case No. 20S-DI-27, involving Respondent’s alleged violation of Professional Conduct Rule 8.1(b), we “reserve final judgment as to misconduct” even in the absence of a petition for review. See Matter of Levy, 726 N.E.2d 1257, 1258 (Ind. 2000). We further observe that the Commission bears the burden of clearly and convincingly establishing that Respondent “knowingly” failed to respond to a demand for information by the Commission. Upon our review and consideration of the facts stipulated by the parties, we conclude the Commission has failed to meet its burden, and accordingly we find in Respondent’s favor on this charge. For reasons explained in our sanction analysis below, we need not dwell further upon this.

While the trust management lapses would not merit suspension

Respondent’s misconduct in Case No. 21S-DI-88 is an entirely different story. His client representations in both counts involved pervasive fraud, dishonesty, bad faith, obstreperousness, repetitive and frivolous filings, and gross incompetence. Our factual recitation in this opinion is but a brief distillation of 60 pages and 461 rhetorical paragraphs of allegations recited in the amended disciplinary complaint and conclusively established as true. Respondent has no prior discipline, but his pattern of misconduct in this case spanned nearly a decade and reflects factors that are endemic to Respondent’s practice and not isolated lapses in judgment. Accordingly, suspension without automatic reinstatement is warranted.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/11/the-indiana-supreme-court-has-suspended-a-judge-in-case-no-20s-di-27-respondent-has-admitted-and-we-find-four-rule-viola.html

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