|FOR THE RESPONDENT |FOR THE INDIANA SUPREME COURT |
| |DISCIPLINARY COMMISSION |
| | |
|Bruce A. Kotzan |Donald R. Lundberg, Executive |
|131 East Ohio Street |Secretary |
|Indianapolis, Indiana 46204 |Fredrick L. Rice, Staff Attorney |
| |115 West Washington Street, Suite 1165|
| |Indianapolis, IN 46204 |
IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) CASE NO. 49S00-0008-DI-493
DAN L. CLAYTON )
DISCIPLINARY ACTION
November 15, 2002
Per Curiam
Dan L. Clayton, an attorney admitted to practice law in this state in
1971, committed several acts of misconduct, which he attributes to
addiction to alcohol and certain prescription drugs. Today, we suspend him
from the practice of law.
The Disciplinary Commission filed a five-count complaint for
disciplinary action against the respondent on August 23, 2000. A hearing
officer appointed by this Court, pursuant to Ind. Admission and Discipline
Rule 23, Section 11(b), conducted an evidentiary hearing on the charges and
has now tendered to this Court his findings and conclusions. The Commission
has petitioned us for review of those findings, arguing that the hearing
officer’s failure to find violations of all charged rule violations was
erroneous. Where a party petitions this Court for review of the hearing
officer’s report, our review is de novo in nature and entails a review of
the entire record before us. Matter of Wilder, 764 N.E.2d 617 (Ind. 2002).
As to Count 1, we find that the respondent settled a personal injury
claim for his clients and deposited the settlement check in his trust
account. Pursuant to his agreement with the clients, the respondent was to
pay a subrogation lien owed to an insurance company. The respondent failed
to pay the subrogation lien and his trust account subsequently was closed
with a zero balance.
The hearing officer found the respondent violated Ind. Professional
Conduct Rule 1.15(b), by failing promptly to deliver funds in payment of
the subrogation lien to the insurance company. The hearing officer did not
find violations of Prof.Cond.R. 8.4(b) and 8.4(c), which prohibit attorneys
from engaging in criminal conduct that reflects adversely on the attorney’s
honesty, trustworthiness, or fitness as an attorney in other respects and
conduct involving dishonesty, fraud, deceit or misrepresentation. The
Commission challenges the hearing officer’s failure to find violations of
these two provisions.
The respondent testified that he used settlement funds in his trust
account earmarked for the payment of the subrogation lien to pay his
operating expenses, though he contends he intended to repay the funds.
Criminal conversion requires the knowing exertion of unauthorized control
over the property of another. IC 35-43-4-3. The respondent’s testimony
establishes conversion of the insurance company’s funds. We therefore
conclude that the respondent violated Prof.Cond.R. 1.15(b), 8.4(b) and
8.4(c) by not promptly delivering funds to the insurance company and by
knowingly converting those funds to his own use without authorization.
Under Count 2, the Commission charged the respondent with failing to
pay funds owed to a client from the settlement of a claim. The hearing
officer found the evidence submitted by the Commission established only
that the respondent deposited a settlement check into his trust account,
but did not pay a subrogation lien before closing the account. We accept
the hearing officer’s conclusion that these facts do not demonstrate by
clear and convincing evidence that the respondent violated Prof.Cond.R.
8.4(b) and 8.4(c).
The Commission dismissed Count 3 of the Verified Complaint.
Under Count 4, we find that on May 11, 2000, the Commission served on
the respondent a subpoena pursuant to Admis.Disc.R. 23, Section 9(f), in
conjunction with its investigation of the respondent. The respondent failed
to respond to the subpoena. We find that the respondent violated
Prof.Cond.R. 8.1(b), which requires attorneys to respond to lawful demands
for information from the Commission.
Under Count 5, we find that clients hired the respondent to represent
them in a medical malpractice claim against a hospital. The hospital served
the respondent with interrogatories and a request for production of
documents. The respondent did not respond to these discovery requests. The
hospital filed motions to dismiss and to compel, which the court set for
hearing. The court also issued an order requiring that the discovery be
provided within 20 days. Subsequently, the clients informed the court that
they had discharged the respondent. The court ordered the respondent to
withdraw within sixty days and, if he failed to do so, the matter would be
set for a contempt hearing. The respondent neither withdrew nor appeared at
the contempt hearing and the court found the respondent in contempt.
Shortly thereafter, the Commission served a request on the respondent to
answer a grievance related to his representation of the clients in this
case. The respondent failed to reply.
By his conduct under Count 5, we find that the respondent violated
Prof.Cond.R. 1.16(a)(3), which requires an attorney to withdraw from
representation upon being discharged; Prof.Cond.R. 3.2, which requires an
attorney to make reasonable efforts to expedite litigation; Prof.Cond.R.
3.4(c), which provides that an attorney shall not knowingly disobey an
obligation under the rules of a tribunal; Prof.Cond.R. 8.4(d), which
prohibits an attorney from engaging in conduct prejudicial to the
administration of justice; and Prof.Cond.R. 8.1(b), which requires
attorneys to respond to lawful demands for information from the Commission.
We must now determine an appropriate sanction for the respondent’s
misconduct. The hearing officer recommends a ninety-day suspension, with
reinstatement subject to two years of probation. The hearing officer cites
the respondent’s professed addiction problem and treatment as extenuating
circumstances. The Commission argues that an appropriate sanction is a
suspension from the practice of law for between six and eighteen months.
In cases where alcohol or drug problems led to arrests and
convictions of attorneys, but did not directly involve their law practice,
probationary sanctions have been imposed. See, e.g., Matter of Martinet,
674 N.E.2d 549 (Ind. 1996) (Six month suspension, conditionally stayed for
twelve months provided the respondent continue in an alcohol abuse
aftercare program, in case involving three convictions for operating a
vehicle while intoxicated); Matter of Kummerer, 714 N.E.2d 653 (Ind. 1999)
(Six month suspension, the first thirty days served, the balance
conditionally stayed upon completion of one year probation, in case
involving purchase and possession of cocaine); Matter of Haith, 742 N.E.2d
940 (Ind. 2001) (Twelve month suspension, conditionally stayed upon two
years probation, in case involving three convictions for operating a
vehicle while intoxicated, two of which involved personal injury).
In this case, the respondent’s violations were not simply substance
abuse, but ethical violations related directly to his performance as an
attorney. We therefore find that a purely probationary sanction is
inadequate here. See, e.g., Matter of Gemmer, 679 N.E.2d 1313 (Ind. 1997)
(One year suspension, without automatic reinstatement, with any
reinstatement subject to treatment and restitution, in case involving
criminal conversion where hearing officer found conduct likely an outgrowth
of depression, alcoholism and gambling); Matter of Ragland, 697 N.E.2d 44
(Ind. 1998) (Six month suspension, with future reinstatement subject to one
year probation, in case involving five counts of use of client funds for
respondent’s own purposes amid allegations of chemical and alcohol
dependency contributing to misconduct).
It is clear that the respondent has a serious addiction problem and
that treatment has been an ongoing challenge for him. By his own admission,
the respondent’s addictions are directly linked to his misconduct. That he
recognizes the connection is commendable, but does not diminish the
seriousness of his misconduct or our duty to protect the public and the
profession from it. We therefore conclude that the respondent’s conduct
warrants a suspension from the practice of law, and that any future
entitlement to practice law must be conditioned upon continued treatment
for his addictions.
It is therefore, ordered that the respondent, Dan L. Clayton, is
suspended from the practice of law in this state for a period of six (6)
months, without automatic reinstatement, effective December 31, 2002. Any
reinstatement of the respondent will likely be subject to a two (2) year
probationary period requiring the respondent to continue in addiction
treatment and pay restitution.
The Clerk of this Court is directed to forward a copy of this Order
to the hearing officer and in accordance with the provisions of
Admis.Disc.R. 23, Section 3(d).
Costs of this proceeding are assessed against the respondent.