In re Morton

504 N.E.2d 279, 1987 Ind. LEXIS 838

• Court: Indiana Supreme Court
• Decided: February 27, 1987
• Docket: No. 585S213
• Status: Published

Opinions

PER CURIAM

This case is before us on a two-count Verified Complaint for Disciplinary Action brought by this Court’s Disciplinary Commission. Pursuant to Indiana Rules A.D. 23, a Hearing Officer, appointed by this Court, has conducted a hearing and now submits to this Court his findings and recommendations. Neither party has challenged the Hearing Officer’s report.

Under Count I of the complaint filed in this cause, Respondent is charged with violating Disciplinary Rules 9-102(B) and 1-102(A) of the Code of Professional Responsibility for Attorneys at Law.

Upon our review of the matters now before the Court, we find under this Count that in 1983 Robert Solazzi retained the Respondent to represent him in matters relating to Solazzi’s commitment to the Lo-gansport State Hospital. In March of 1984 the Respondent received $519.00 in Social Security Disability payments on behalf of Solazzi; in April, May and June of 1984, he received payments in the amount of $504.00 each. The Respondent deposited those funds in the account of David L. Morton, Trustee, First National Bank of Logansport. Thereafter, Solazzi contacted the Respondent from time to time regarding disbursement of the funds, and the funds were provided to Solazzi as requested.

Beginning in April, 1984, Solazzi’s funds were removed from the trust account and placed in the Respondent’s business and/or personal checking account. During the period from March through June, 1984, the Respondent sent to Solazzi the following sums: (a) $500.00 Cashier’s Check on April 9, 1984; (b) $219.00 by wire transfer on May 7,1984; and (c) $200.00 by a Cashier’s Check on June 16,1984. The funds for the first and third payment were withdrawn from a different personal account and not from either the trust or business accounts. The Respondent also provided Solazzi with funds for bus fare to his home in Northern Illinois. After June 19, 1984, Solazzi requested Respondent to account for and pay over to Solazzi the balance of funds; the Respondent failed to render an accounting or to return any funds to Solazzi.

Thereafter, Solazzi retained attorney Larry E. Ohlson to assist in the recovery of the funds from the Respondent. Ohlson attempted to contact the Respondent by phone and also wrote four letters, all without success. The Respondent did, however, direct the July Social Security Check to Solazzi in care of Ohlson.

Between March, 1984 and June 1984, the balance of funds in Respondent’s trust account was frequently and consistently below the amount he should have held for Solazzi; the account was also frequently overdrawn. During the period from April, 1984 through and including July 1984, the Respondent converted Solazzi’s funds for his own personal and business use and thereby violated Indiana Code 35-43-4-3, a statute defining criminal conversion. On July 18, 1985, the Respondent did provide an accounting and a Cashier’s Check in the amount of $769.98 to Solazzi; these, however, were returned addressee unknown by the United States Postal Service.

From the foregoing findings we conclude that the Respondent failed to maintain complete records, to render an appropriate accounting and to pay over to the client, as requested, funds belonging to the client, all in violation of Disciplinary Rule 9-102(B) of the Code of Professional Responsibility for Attorneys at Law. The Respondent further violated Disciplinary Rule 1-102(A) in that he engaged in illegal conduct involving moral turpitude, conduct involving dishonesty, fraud, deceit or misrepresentation and conduct that adversely reflects on his fitness to practice law.

In Count II the Respondent is charged with violating Disciplinary Rules 6-101(A) and 7-101(A)(2) and (3) of the Code of Professional Responsibility for Attorneys at Law. We now find that on March 26, 1984, Rita Lawrence retained the Respondent to represent her in an appeal of a denial of Florida unemployment benefits. On April 18, 19'84, the Respondent was granted leave to appear in the State of Florida District Court of Appeals, First District, in the case of Rita M. Lawrence v. Unemployment Appeals Commission.

After entering his appearance, the Respondent attempted to secure evidence to present to the District Court of Appeals as the Lawrence claim lacked a meritorious basis due to lack of evidence. During this period, the Respondent did not file a brief or otherwise request the Court to hold the record open for additional evidence, specifically a Letter of Violation, which the client wished to introduce as newly discovered evidence. The Lawrence appeal was dismissed for want of prosecution on August 2, 1984.

On August 14,1984, Lawrence received a Letter of Violation which Respondent filed with the Court of Appeals together with a Motion to Reconsider the dismissal for want of prosecution. The Motion to Reconsider was denied. The rights of Rita Lawrence to obtain damages that she seeks are still preserved and she is still awaiting a response from the appropriate governmental agency regarding her claims.

We agree with the Hearing Officer’s conclusions that the record fails to disclose the appellate requirements that Respondent was to follow in the Florida Court of Appeals in the Lawrence case. The dismissal of the appeal for lack of prosecution does not, in and of itself, under the facts presented here, constitute misconduct.

Upon finding that the Respondent did engage in misconduct under the first count, we must assess the appropriate sanction. The findings here reveal an abhorrent form of breach of professionalism, the mishandling and conversion of client’s funds. These acts indicate a lack of fitness to serve in any position of trust or to practice law. We are, however, not unmindful that the Respondent did eventually return the misappropriated funds, albeit after it became necessary for the client to obtain other counsel for that purpose and long after the request for refund had been made.

In light of these considerations and the findings in this case, we conclude that a period of suspension of not less than three (3) years is appropriate under the circumstances of this case.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the Respondent, David L. Morton, who was suspended from the practice of law on January 7, 1986, pending the outcome of this proceeding, is hereby suspended from the practice of law for a period of not less than three (3) years, beginning January 7, 1986.

Costs of this proceeding are assessed against the Respondent.