A Most Serious Form Of Misconduct

The Indiana Supreme Court has imposed a suspension of at least three years for misconduct that included conversion of guardianship funds

Respondent was appointed by the Warrick Circuit Court as guardian of an 88-year-old incapacitated woman (“Ward”) living in a nursing home. In his capacity as guardian, Respondent became a signatory on Ward’s “PTSB” and “PNC” bank accounts. Ward’s account at PTSB was an attorney fiduciary account subject to overdraft reporting to the Commission.

Without the required court authorization, Respondent wrote three checks from the PTSB account, totaling $20,000 and payable to himself, indicating in the subject lines that the checks were for legal fees. In early 2015, the court ordered Respondent to prepare a biennial accounting of the guardianship. Respondent failed to do so, and in March 2015 the court ordered Respondent removed as guardian. After appointing another attorney as guardian, the court ordered Respondent as the previous guardian to file a final accounting, which Respondent also failed to do.

The court later ordered Respondent to appear and explain his failure to comply with the court-ordered accounting. Respondent failed to appear on the scheduled hearing date. Meanwhile, the Commission began investigating Respondent’s actions and demanded a response. Respondent failed to respond, leading to the initiation of show cause proceedings in this Court and, eventually, an indefinite suspension for noncooperation that remains in effect. Matter of Emmons, 52 N.E.3d 797 (Ind. 2016). Respondent also failed to timely comply with a subpoena duces tecum seeking production of his guardianship file, and when he did comply, the file he produced was incomplete.

Sanction

 Respondent and the Commission propose that Respondent receive a suspension from the practice of law for a period of at least three years, without any “credit” being given for the time Respondent already has served under suspension due to his noncooperation. Respondent’s conversion of guardianship funds and subsequent efforts to conceal his actions from the trial court and Disciplinary Commission are among the most serious types of misconduct. The American Bar Association’s Standards for Imposing Lawyer Sanctions provide that disbarment generally is appropriate when an attorney knowingly converts client property and causes injury or potential injury to a client, or when an attorney knowingly violates a court order or rule with the intent to benefit himself and in doing so causes serious injury or potentially serious injury to a party. See ABA Standards, Standards 4.11, 5.11, 6.21. However, in light of the agreed mitigating factors in this case, the Court’s desire to foster agreed resolutions of attorney disciplinary cases, and the protection to the public afforded by our discretionary reinstatement process, we approve the proposed discipline. To regain his privilege to practice law after his minimum period of suspension has elapsed, Respondent would be required to petition this Court for reinstatement and prove his professional rehabilitation by clear and convincing evidence. See Admis. Disc. R. 23(18)(b) (2017).

(Mike Frisch)