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

______________________________________________________________________________

                                             In the
                           Indiana Supreme Court                                   FILED
                             _________________________________
                                                                              Mar 07 2017, 10:02 am

                                     No. 02S00-1607-DI-389                         CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court
IN THE MATTER OF:

DONALD E. JAMES,
                                                       Respondent.
                             _________________________________

                                   Attorney Discipline Action
                                 Hearing Officer John D. Ulmer
                             _________________________________


                                          March 7, 2017

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 and attorney funds.

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

        8.4(b): Committing a criminal act (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 misrepresentation.

In addition, we conclude that Respondent violated the following Indiana Admission and
Discipline Rules:1


        23(29)(a)(2): Failing to create or preserve trust account records for at least five years
           after disposition of matters.

        23(29)(a)(3): Failing to create, maintain, or retain accurate client 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.2

        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 matters in mitigation and
aggravation. See Matter of Newman, 958 N.E.2d 792, 800 (Ind. 2011). This analysis informed


1
  Admission and Discipline Rule 23 was amended effective January 1, 2017. The citations herein are to
the version of Rule 23(29) in effect at the time of Respondent’s misconduct.
2
 The verified complaint and the hearing officer’s report both cite Rule 23(29)(a)(5), but the particular
conduct cited as a basis for the violation is encompassed within Rule 23(29)(a)(4). This discrepancy does
not affect our analysis, particularly since the undisputed facts of this case reflect violations of both rules.
the hearing officer’s recommendation that Respondent be disbarred and leads us to conclude the
same. “Few other acts of misconduct impugn the integrity of the Bar or place the public more at
risk than the misuse of client funds.” Matter of Frosch, 643 N.E.2d 902, 904 (Ind. 1994).
Respondent has not participated in these proceedings or filed a brief urging a different sanction,
and we have disbarred other attorneys who have demonstrated similar unfitness to be entrusted
with the responsibilities that accompany a license to practice law in this state. See id.; see also
Matter of Johnson, 53 N.E.3d 1177 (Ind. 2016); Matter of Ouellette, 37 N.E.3d 490 (Ind. 2015);
Matter of Hill, 655 N.E.2d 343 (Ind. 1995).


                                           Conclusion


       Respondent already is under suspension in two other cases for failure to cooperate with
the Commission’s investigations. For Respondent’s professional misconduct, the Court disbars
Respondent from the practice of law in this state effective immediately. Respondent shall fulfill
all the duties of a disbarred attorney under Admission and Discipline Rule 23(26). The costs of
this proceeding are assessed against Respondent, and the hearing officer appointed in this case is
discharged.


All Justices concur.
