N O A PPEARANCE FOR THE R ESPONDENT A TTORNEYS FOR THE I NDIANA S UPREME C OURT D ISCIPL I NARY C OMMISSION G. Michael Witte , Executive Director Rachel B. Gallagher , Staff Attorney Indianapolis, Indiana

_________________________________________________________ _____________________ 

## In the 

# Indiana Supreme Court

_________________________________
No. 61S00

- 1703

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- 153

I N THE M ATTER OF :

J OHN D OWNEY P IERCE , Respondent.

_________________________________ Attorney Discipline Action Hearing Officer John A

. Rader

_________________________________

August 31, 2017

Per Curiam.

We find that R e spondent, John Downey Pierce
, committed attorney misconduct by
, among other things, mismanaging his trust account, converting client funds, disobeying a court

or der, 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 Ind iana Supreme Court Disc iplinary Commission’ s verified

“ Disciplinary Complaint .” Respondent’ s 1999 admission to this state’ s bar subjects him to this
Court’ s disciplinary jurisdi c tion. See I ND

. C ONST

. art. 7, § 4.2 Procedural Background and Facts

The Commission filed a “ Disci plinary Complaint ” against Respondent on March 17,
2017

. Respondent was served with the c omplaint but has not appeared, responded , or otherwise participated in these proceedings. Accordingly, the Commission filed a “ Motion for Ju dgment
on the Disciplinary Complaint,” and the hearing office r 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 hearin g 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).

Count 1 . In September 2015, Respondent commingled personal and client funds in his

trust accou nt and wrote three checks from his trust account for personal expenses, which resulted in an overdraft. The Commission began investigating and requested client ledgers. Respondent kept insufficient client ledgers, and the documents he eventually produced for the Commission were false and failed to reflect the source of all funds deposited into the account or sequences of transactions affecting the respective clients.

Count 2

. On April 5, 2016, Respondent failed to appear in court for his clients’

unconte sted adoption hearing. The judge admonished Respondent and ordered him to complete the required paperwork for his clients, which Respondent assured the judge he would do. When Respondent failed to complete the paperwork, the judge scheduled a show cause hearing for May 5. Respondent appeared at that hearing, which then was continued to May 18 to give Respondent time to comply with the court’s orders. Respondent did not appear at the May 18 hearing, but filed a motion to continue that morning, which was denied. The judge filed a grievance with the Commission, and in his response to the grievance Respondent admitted the judge’s assertions were accurate

.3

Count 3

. In July 2016, the Commission demanded a response from Respondent with respect to another gri evance. Respondent failed to respond, leading to the initiation of show cause proceedings. 1

The hearing officer cited as aggravating factors Respondent’s disciplinary history, his dishonest and selfish motive, his pattern of misconduct comprising multipl e offenses, the criminal nature of some of his misconduct, his deceptive practices during the Commission’s investigation, his substantial experience in the practice of law, and his failure to acknowledge the wrongfulness of his actions.

Discussion

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

1.3: Failing to act with reasonable diligence and promptness

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

. 3.2: Failing to expedite litigation consistent with the interests of a client
3.4(c): Knowingly d isobeying a court order and an obligation under t he rules or an order of a court
8.1(a): Knowingly making a false statement of material fact to the Disciplinary Commission in connection with a disciplinary matter. 2

8.1(b): Failing to respond in a timely manner to the Commission’s demands for informat ion.

1 All told, Respondent was the subject of five different show cause p roceedings initiated in 2016, the latter three of which resulted in noncooperation suspensions. Following Respondent’s continued noncooperation, his suspension in Case No. 61S00

- 1608

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- 441 was converted to an indefinite suspension, which remains in effec t.

2 In Count 1 the hearing officer’s report cites Rule 8.1(b), but the conduct described as a basis for the violation in that count is encompassed by Rule 8.1(a).4

8.4 (a) and (b): Committing a criminal act (conversion or attempted conversion ) that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.
8.4(c): Engaging in conduct involving dishonesty, fraud, deceit, or misreprese ntation.
8.4(d): Engaging in conduct prejudicial to the administration of justice

. In addition, we conclude that Respondent violated the following Indiana Admission and Discipline Rule s: 3

23(29)(a)(3) : Failing to create, maintain, or retain accurate c lient ledgers for trust accounts

. 23(29)(a)(4): Commingling client funds with other funds of the attorney and failing to create or retain sufficiently detailed records.

Our analysis of appropriate discipline entails consideration of the nature of the misconduct, the duties violated by the respondent, any resulting or potential harm, the respondent’ s state of mind, our duty to preserve the integrity of the profession, the risk to the public should we allow the respondent to continue in practice, and ma tters in mitigation and aggravation. See Matter of James , 70 N.E.3d 346, 348 (Ind. 2017 ).

Respondent’s misconduct involved dishonesty, disregard of court orders, and conversion of client funds, all serious transgressions. Further, Respondent progress ively absented himself from the multiple show cause proceedings against him and has wholly failed to participate in these disciplinary proceedings. We have disbarred other attorneys who have demonstrated similar unfitness to be entrusted with the responsi bilities that accompany a license to practice law
in this state. See , e.g. , id. at 349; Matter of Ouellette , 37 N.E.3d 490 (Ind. 2015). We acknowledge that Respondent may not have stolen as much money as some other disbarred attorneys, or been as pervasi vely dishonest or neglectful
, but this offers faint praise. The nature of Respondent’s misconduct, coupled with his serial noncooperation and his failure to participate in these proceedings, persuade us that disbarment is the appropriate sanction here as well.

3 Admission and Discipline Rule 23 was amended effective January 1, 2017. The citations he rein are to the version of Rule 23(29) in effect at the time of Respondent’s misconduct.5 Conclusion

Respondent already is under indefinite suspension for failure to cooperate with the Commission’s investigation s

. For Respondent’s professional misconduct, t he Court disbars Respondent from the practice of law in thi s state effective imm ediately. Respondent shall fulfill
all the duties of a disbarred attorney under Admission and Discipline Rule 23(26). The costs of this proceeding ar e assessed against Respondent, and t he hearing officer appointed in this case is discharged.

Rush, C.J, and David and Goff, JJ., concur.
Massa and Slaughter, JJ., concur in the findings, dissent from the sanction, and would impose a three

- year suspension without automatic reinstatement.