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In re Ellison

Supreme Court of Indiana

December 20, 2017

In the Matter of: Marcus E. Ellison, Respondent.

          Attorney Discipline Action Hearing Officer William J. Boklund

          RESPONDENT PRO SE Marcus E. Ellison South Bend, Indiana

          ATTORNEYS FOR THE INDIANA SUPREME COURT DISCIPLINARY COMMISSION G. Michael Witte, Executive Director Angie L. Ordway, Staff Attorney Indianapolis, Indiana

          Per Curiam

         We find that Respondent, Marcus Ellison, committed attorney misconduct by neglecting an appeal and thereafter engaging in a pattern of dishonesty in an effort to cover up his neglect. For this misconduct, we conclude that Respondent should be suspended for at least 90 days without automatic reinstatement.

         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 "Disciplinary Complaint." Respondent's 2001 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 "Disciplinary Complaint" against Respondent on April 4, 2017. Respondent was served with the complaint but did not respond. Accordingly, the Commission filed a "Motion for Judgment on the Complaint, " and the hearing officer took the facts alleged in the disciplinary 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).

         Respondent agreed to represent "Client" in an appeal from the denial of Client's petition to expunge her misdemeanor theft conviction. Respondent supervised a pro bono expungement clinic sponsored by Ivy Tech and staffed by students, but Respondent had never done an appeal. Respondent filed a notice of appeal in September 2015, and notice of completion of the transcript was filed in November 2015, making an appellant's brief due in December 2015.

         Respondent did not timely file an appellant's brief. Thereafter, Client emailed

         Respondent several times to inquire about the status of her appeal. Twice, Respondent replied by falsely implying that a brief had been filed.

         In March 2016, an entry was made on the online appellate docket indicating the appeal was being transmitted for dismissal due to the failure to file an appellant's brief. Client saw this entry and emailed Respondent, demanding an explanation and a file-marked copy of the brief Respondent claimed to have filed. Respondent did not promptly reply to this email. Instead, Respondent tendered to the Court of Appeals a motion for leave to file the appellant's brief belatedly. In that motion, Respondent falsely stated that he had prepared an appellant's brief "which was to be appended to transcript and notice of appeal but was apparently not attached." This tender was defective for multiple reasons and was not accepted by the Clerk for filing.

          Meanwhile, Respondent emailed a copy of the tendered appellant's brief to Client, who replied by pointing out to Respondent that ...


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