FOR THE RESPONDENT	FOR THE INDIANA SUPREME COURT

						DISCIPLINARY COMMISSION

Joseph M. Toth, Pro se		Donald Lundberg, Executive Secretary

					Indiana Supreme Court Disciplinary Commission

					115 West Washington St., Ste. 1060 

					Indianapolis, Indiana 46204

IN THE 

SUPREME COURT OF INDIANA

IN THE MATTER OF			)

						) Case No.  71S00-9603-DI-256

JOSEPH M. TOTH			)

DISCIPLINARY ACTION

Per Curiam

	The hearing officer appointed by this Court pursuant to Ind.Admission and Discipline Rule 23(11) has found that the respondent, Joseph M. Toth, after accepting retainer payments

from clients, failed to take action on their behalf, failed to refund unearned portions of the

retainers, and converted client funds to his own use.  He also found that the respondent failed

to promptly deliver settlement funds to a third party lienholder.  For that misconduct, the

hearing officer recommended that the respondent be suspended from the practice of law for

a period of not less than one year.  This case, on the hearing officer’s report, is now before

us for final resolution. 

	 Where, as here, the findings of the hearing officer are unchallenged, we accept them

with the understanding that final determination as to misconduct and sanction rests with this

Court.  In re Newman, 659 N.E.2d 1044 (Ind. 1996). 

	The respondent was admitted to the bar of this state in 1987 and thus is subject to this

Court’s disciplinary jurisdiction.  He was suspended for failure to comply with continuing

legal education requirements on June 26, 1995, and has not applied for reinstatement.  This

Court suspended him pendente lite on November 15, 1996, upon the Commission’s motion.1

	Pursuant to Count I of the Commission’s Amended Verified Complaint for Disciplinary Action,  we now find that the respondent agreed to represent a client in regard to a personal injury claim.  The respondent and the client executed a lien in favor of the

treating physician, granting him a security interest in any proceeds the client’s claim might

yield.  In exchange for the lien, the physician agreed to defer collection of his fees until the

claim’s resolution.  The respondent ultimately settled the client’s claim, but failed to

withhold any of the proceeds to satisfy the physician’s lien.  Thereafter, the respondent failed

to respond to the physician’s numerous inquiries about the settlement.

	We find that the respondent violated Ind.Professional Conduct Rule 1.15(b) by failing

promptly to notify the physician of receipt of the settlement proceeds and by failing to

promptly deliver to the physician the portion of the settlement to which he was entitled.2   By failing to hold the physician’s funds in trust until any dispute over apportionment of the funds was resolved, the respondent violated Prof.Cond.R. 1.15(c).3 

	Under Count II, we now find that in August of 1993, a client retained the respondent

to remove an erroneous judgment that had been entered against her.  She paid the respondent

$120 as a retainer.  Upon accepting the retainer, the respondent informed the client that the

matter would take about two weeks to resolve.  In October of 1993, the judgment holder

informed the client that it would remove the judgment if the respondent provided it with the

appropriate paperwork.  During the next eight months, the client attempted repeatedly and

unsuccessfully to reach the respondent by telephone.  When she finally spoke with him in

March of 1994, the respondent explained that he could not proceed with the matter until the

client remitted another $50 in “typing fees.”  The client eventually removed the judgment

herself and requested that the respondent refund her retainer.   The respondent never obliged. 

	We now find that, as to Count II, the respondent violated Prof.Cond.R. 1.3 by failing to promptly and diligently pursue removal of the erroneous judgment on behalf of his client.4  He violated Prof.Cond.R. 1.4(a) by failing to keep the client adequately informed of the

status of the matter.5   He violated Prof.Cond.R. 1.16(d) by failing to refund the unearned portion of the retainer the client provided to him.6

	As to Count III, we now find that a client retained the respondent to institute a civil

action for damages he sustained in a dog attack.  The respondent accepted a $150 retainer,

but thereafter took no action and failed to return the client’s telephone calls or respond to his

letters.  	

	We find that, as to Count III, the respondent violated Prof.Cond. R. 1.3 by failing

diligently or promptly to pursue the civil action; Prof.Cond.R. 1.4(a) by failing to keep the

client reasonably informed about the status of the contemplated claim; and Prof.Cond.R.

1.16(d) by failing to refund any unearned portion of the retainer fee. 

	Pursuant to Count IV, we now find that the respondent was hired on August 22, 1994, to assist athe client in adopting an unborn child.  The client paid the respondent a $460 retainer

as well as sums intended for the payment of filing fees.  The respondent failed to take action

on his client’s behalf and did not place the funds earmarked for filing fees in trust; instead,

he commingled those funds with his own.  The client, meanwhile, telephoned the respondent

about 20 times to learn of the status of the action.  The respondent failed to respond. 

	By his conduct in Count IV, we find that the respondent violated Prof.Cond.R. 1.3 by

failing to provide diligent and prompt representation to his client and Prof.Cond.R. 1.4(a) by

failing to respond to his client’s requests for information.  He violated Prof.Cond.R. 1.15(b)

by failing to return to the client funds earmarked for filing fees; Prof.Cond.R. 1.15(c) by

failing to hold the funds separate from his own; and Prof.Cond.R. 3.2 by failing to expedite

the adoption process.7   By converting to his own use the money paid by the client for filing fees, the respondent violated Prof.Cond.R. 8.4(b).8   His conversion of the client’s funds represents conduct involving dishonesty, fraud, deceit, and misrepresentation, and thus

violated Prof.Cond.R. 8.4(c).9

	Under Count VI, we find that clients retained the respondent in January of 1995 to assist them in adopting their grandson.  They paid the respondent a $400 fee and $250

toward anticipated reports and court costs. The respondent never filed a petition for adoption

and thereafter ceased communicating with his clients.  Later, they were unable to contact him

after his phone was disconnected and his post office box vacated.  The respondent admitted

to commingling his clients’ costs money with his own funds. 

	 We find that, under Count VI, the respondent violated Prof.Cond.R. 1.3 by failing

to act promptly or diligently in representing his clients; Prof.Cond.R. 1.4(a) by failing to

respond to his clients’ requests for information or otherwise communicate with them about

the case; Prof.Cond.R. 1.15(b) by failing to return to the clients their costs funds; and

Prof.Cond.R. 1.16(d) by commingling his clients’ funds with his own.  

	We must now assess an appropriate discipline for the respondent’s misconduct.10   The hearing officer recommended that the respondent be suspended for one year and suggested

that the respondent’s possible alcohol addiction and depression should be addressed at any

future reinstatement proceeding.  

	The respondent has demonstrated a pattern of grievously violating the trust his clients

placed in him.  While allowing his clients’ legal matters to languish unattended, the

respondent helped himself to funds either unearned by him or entrusted to him to pay for

specific costs of litigation.   The respondent offered no explanation for his misconduct, other than the suggestion that he suffers from alcohol problems or depression.  Despite such

explanation, it is clear that, in the interest of protecting the public and the profession, the

respondent should be removed from the practice of law until such time as he can demonstrate

his fitness as an attorney. 

	Accordingly, the respondent, Joseph M. Toth, is hereby suspended from the practice

of law for a period of not less than one year, beginning OctoberOctober 13, 1997__________________, for the misconduct

set out above.  At the conclusion of that period, the respondent may seek reinstatement,

provided he pays the costs of this proceeding, demonstrates compliance with the provisions

of Admis.Disc.R. 23(4), and demonstrates that he has addressed any problems he may have

with depression and/or alcohol abuse.11

	 The Clerk of this Court is directed to provide notice of this order in accordance with

Admis.Disc.R. 23(3)(d) and to provide the clerk of the United States Court of Appeals for

the Seventh Circuit, the clerk of each of the Federal District Courts in this state, and the clerk

of the United States Bankruptcy Court in this state with the last known address of respondent

as reflected in the records of the Clerk.

	Cost of this proceeding are assessed against respondent.