In the Matter of: Gene D. Emmons , 68 N.E.3d 1068 ( 2017 )


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  • ATTORNEY FOR THE RESPONDENT                           ATTORNEYS FOR THE INDIANA SUPREME COURT
    Michele S. Bryant                                     DISCIPLINARY COMMISSION
    Evansville, Indiana                                   G. Michael Witte, Executive Director
    David E. Griffith, Staff Attorney
    Indianapolis, Indiana
    ______________________________________________________________________________
    In the
    Indiana Supreme Court
    _________________________________                     FILED
    Feb 14 2017, 11:03 am
    No. 87S00-1604-DI-190                          CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    IN THE MATTER OF:
    GENE D. EMMONS,
    Respondent.
    _________________________________
    Attorney Discipline Action
    _________________________________
    February 14, 2017
    Per Curiam.
    We find that Respondent, Gene D. Emmons, engaged in attorney misconduct by
    converting guardianship funds, failing to comply with court orders, and failing to cooperate with
    the disciplinary process. For this misconduct, we conclude that Respondent should be suspended
    from the practice of law in this state for at least three years without automatic reinstatement.
    Pursuant to Indiana Admission and Discipline Rule 23(11) (2016), the Indiana Supreme
    Court Disciplinary Commission and Respondent have submitted for approval a “Statement of
    Charges and Conditional Agreement for Discipline” stipulating agreed facts and proposed
    discipline. The Respondent’s 2008 admission to this state’s bar subjects him to this Court’s
    disciplinary jurisdiction. See IND. CONST. art. 7, § 4. The Court approves the agreement and
    proposed discipline.
    Stipulated Facts
    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.
    The parties agree that Respondent violated these Indiana Professional Conduct Rules
    prohibiting the following misconduct:
    1.15(a): Failing to maintain complete records of client trust account funds and keep them for
    a period of five years after termination of the representation.
    3.4(c): Knowingly disobeying court orders.
    8.1(b): Knowingly failing to respond to a lawful demand for information from a disciplinary
    authority.
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    8.4(b): Committing a criminal act that reflects adversely on the lawyer’s honesty,
    trustworthiness, or fitness as a lawyer.
    8.4(c): Engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
    8.4(d): Engaging in conduct prejudicial to the administration of justice.
    The parties also agree Respondent violated Rule 4(A)(2) of the Indiana Supreme Court
    Disciplinary Commission Rules Governing Attorney Trust Account Overdraft Reporting by
    failing to notify PTSB that Ward’s account at that bank was subject to overdraft reporting to the
    Commission.
    The parties cite as facts in aggravation Respondent’s pattern of misconduct encompassing
    multiple offenses, his bad-faith obstruction of the disciplinary proceeding, and the vulnerability
    of Ward. In mitigation, the parties cite Respondent’s inexperience and lack of disciplinary
    record prior to the events described above.
    Discussion and Discipline
    Our analysis of appropriate discipline entails consideration of the nature of the
    misconduct, the duties violated by the respondent, any resulting or potential harm, the
    respondent’s state of mind, our duty to preserve the integrity of the profession, the risk to the
    public should we allow the respondent to continue in practice, and matters in mitigation and
    aggravation. See Matter of Newman, 
    958 N.E.2d 792
    , 800 (Ind. 2011).
    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
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    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).
    Conclusion
    The Court concludes that Respondent violated the Indiana Rules of Professional Conduct
    by converting guardianship funds, failing to comply with court orders, and failing to cooperate
    with the disciplinary process. Respondent already is under an order of indefinite suspension due
    to his noncooperation with the Commission’s investigation.          For Respondent’s professional
    misconduct, the Court suspends Respondent from the practice of law in this state for a period of
    not less than three years, without automatic reinstatement, effective from the date of this opinion.
    Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline
    Rule 23(26). At the conclusion of the minimum period of suspension, Respondent may petition
    this Court for reinstatement to the practice of law in this state, provided Respondent pays the
    costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements
    for reinstatement of Admission and Discipline Rule 23(18).
    The costs of this proceeding are assessed against Respondent.           The hearing officer
    appointed in this case is discharged.
    All Justices concur, except David, J., who would reject the conditional agreement.
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Document Info

Docket Number: 87S00-1604-DI-190

Citation Numbers: 68 N.E.3d 1068

Filed Date: 2/14/2017

Precedential Status: Precedential

Modified Date: 1/12/2023