In the Matter of: Timothy S. Durham , 55 N.E.3d 302 ( 2016 )


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  • ATTORNEY FOR THE RESPONDENT                           ATTORNEYS FOR THE INDIANA SUPREME COURT
    John L. Tompkins                                      DISCIPLINARY COMMISSION
    Indianapolis, Indiana                                 G. Michael Witte, Executive Secretary
    Aaron Johnson, Staff Attorney
    Indianapolis, Indiana
    ______________________________________________________________________________
    FILED
    In the                           Jul 20 2016, 9:17 am
    Indiana Supreme Court                                  CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    _________________________________
    No. 49S00-1212-DI-672
    IN THE MATTER OF:
    TIMOTHY S. DURHAM,
    Respondent.
    _________________________________
    Attorney Discipline Action
    Hearing Officer Kurt M. Eisgruber
    _________________________________
    July 20, 2016
    Per Curiam.
    We find that Respondent, Timothy Durham, engaged in attorney misconduct. For this
    misconduct, we conclude that Respondent should be disbarred.
    This matter is before the Court on the report of the hearing officer appointed by this
    Court to hear evidence on the Indiana Supreme Court Disciplinary Commission’s “Verified
    Complaint for Disciplinary Action.” Respondent’s 1987 admission to this state’s bar subjects
    him to this Court’s disciplinary jurisdiction. See IND. CONST. art. 7, § 4.
    Procedural Background and Facts
    In March 2011, Respondent was indicted in federal court on twelve felony counts rooted
    in a complex scheme of securities and wire fraud. Respondent was convicted on all counts
    following a jury trial in June 2012 and later was sentenced to fifty years in prison. Respondent’s
    convictions on ten of the twelve counts were affirmed on appeal. U.S. v. Durham, 
    766 F.3d 672
    (7th Cir. 2014), cert. denied. On remand, the district court again imposed a fifty-year sentence.
    With his criminal proceedings now having come to rest, Respondent stands convicted of eight
    counts of wire fraud, one count of securities fraud, and one count of conspiracy to commit wire
    and securities fraud. All told, over a period of several years Respondent and two co-defendants
    defrauded thousands of investors of over $200 million.
    The Commission charged Respondent with violating Indiana Professional Conduct Rules
    8.4(b) (by committing criminal acts that reflect adversely on his honesty, trustworthiness, or
    fitness as a lawyer) and 8.4(c) (by engaging in conduct involving dishonesty, fraud, deceit or
    misrepresentation). Following a hearing, the hearing officer filed his report to this Court on
    April 28, 2016, concluding that Respondent violated the rules as charged and recommending that
    Respondent be disbarred.
    Discussion and Discipline
    No petition for review of the hearing officer’s report or brief on sanctions has been filed.
    When neither party challenges the findings of the hearing officer, “we accept and adopt those
    findings but reserve final judgment as to misconduct and sanction.” Matter of Levy, 
    726 N.E.2d 1257
    , 1258 (Ind. 2000). We concur in the hearing officer’s findings of fact and conclude that
    Respondent violated Indiana Professional Conduct Rules 8.4(b) and 8.4(c).
    Turning to the issue of appropriate discipline, we agree with the hearing officer’s
    assessment in this case that “Respondent’s fraudulent actions over an extended period of time . . .
    suggest a level of greed which knew no bounds and displayed a total lack of concern for the
    thousands of customers Respondent financially ruined.” (HO’s Report at 5). In Matter of Page,
    
    8 N.E.3d 199
     (Ind. 2014), we concluded that a suspension of at least two years without automatic
    reinstatement was appropriate discipline for an attorney convicted of a single count of aiding and
    abetting wire fraud, where the crime had not resulted in loss or injury and the attorney had not
    violated a position of trust. In sharp contrast, Respondent’s convictions on ten felony counts
    involved an ongoing scheme of wire and securities fraud that spanned several years and caused
    over $200 million in losses to thousands of victims. We have consistently imposed disbarment
    where an attorney exhibits a pattern of conversion of client funds. See, e.g., Matter of Johnson,
    ___ N.E.3d ___, 
    2016 WL 2897399
     (Ind. May 18, 2016); Matter of Antcliff, 
    693 N.E.2d 525
    (Ind. 1988). We see no reason to reach a different result with respect to Respondent’s fraudulent
    looting of funds entrusted to him by investors.
    Conclusion
    The Court concludes that Respondent violated the Rules of Professional Conduct by
    defrauding thousands of investors of over $200 million. Respondent already is under an order of
    interim suspension in this case as well as a separate suspension order for nonpayment of dues.
    For Respondent’s professional misconduct, the Court disbars Respondent from the practice of
    law in this state, effective immediately. Respondent shall fulfill all the duties of a disbarred
    attorney under Admission and Discipline Rule 23(26). The costs of this proceeding are assessed
    against Respondent, and the hearing officer appointed in this case is discharged.
    All Justices concur.
    

Document Info

Docket Number: 49S00-1212-DI-672

Citation Numbers: 55 N.E.3d 302

Filed Date: 7/20/2016

Precedential Status: Precedential

Modified Date: 1/12/2023