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In re James

Supreme Court of Indiana

March 7, 2017

In the Matter of: Donald E. James, Respondent.

          No Appearance for the Respondent

          Attorneys for the Indiana Supreme Court Disciplinary Commission G. Michael Witte, Executive Director David E. Griffith, Staff Attorney Indianapolis, Indiana

         Attorney Discipline Action Hearing Officer John D. Ulmer

          Per Curiam

         We find that Respondent, Donald James, committed attorney misconduct by mismanaging his trust account, converting client funds, and failing to cooperate with the disciplinary process. 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 1985 admission to this state's bar subjects him to this Court's disciplinary jurisdiction. See Ind. Const. art. 7, § 4.

         Procedural Background and Facts

         The Commission filed a "Verified Complaint for Disciplinary Action" against Respondent on July 20, 2016. After service by certified mail at the two Fort Wayne addresses listed for Respondent on the Roll of Attorneys was unsuccessful, constructive service was made upon the Clerk as Respondent's agent pursuant to Admission and Discipline Rule 23(12)(h) (2016). Respondent has not appeared or responded in these proceedings. Accordingly, the Commission filed an "Application for Judgment on the Complaint," and the hearing officer took the facts alleged in the verified complaint as true.

         No petition for review of the hearing officer's report 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).

         During 2015 Respondent significantly overdrew his attorney trust account on three occasions, regularly commingled personal funds with client funds, made unauthorized cash and check withdrawals from the trust account for his own personal purposes, and failed to maintain adequate trust account records. Respondent also invaded client funds, which resulted in the overdrafts. Respondent largely failed to cooperate with the Commission's investigation and has failed to participate in these disciplinary proceedings.

         The hearing officer cited as aggravating factors Respondent's dishonest and selfish motive, his pattern of misconduct comprising multiple offenses, the criminal nature of some of his misconduct, his deceptive practices during the Commission's investigation, and his refusal to acknowledge the wrongfulness of his actions. The hearing officer recommended that Respondent be disbarred.

         Discussion

         We concur in the hearing officer's findings of fact and conclude that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

1.15(a): Failing to create or maintain complete records of client trust account funds, and commingling client ...

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