                                             FILED
                                         Aug 21 2018, 3:14 pm

                                             CLERK
                                         Indiana Supreme Court
                                            Court of Appeals
                                              and Tax Court


               IN THE

Indiana Supreme Court
   Supreme Court Case No. 18S-DI-00094

           In the Matter of
           Michael Jeffries
                Respondent.




          Decided: August 21, 2018

         Attorney Discipline Action

        Hearing Officer Peter C. King



            Per Curiam Opinion
             All Justices concur.
Per curiam.

   We find that Respondent, Michael Jeffries, committed attorney
misconduct by neglecting clients’ cases, maintaining two websites with
misleading information, mismanaging his trust account, making false
statements to the Indiana Supreme Court Disciplinary Commission, and
failing to cooperate in the disciplinary process. For this misconduct, we
conclude that Respondent should be suspended for at least three years
without automatic reinstatement.

   The matter is now before us on the report of the hearing officer
appointed by this Court to hear evidence on the Commission’s verified
disciplinary complaint. Respondent’s 2000 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 February 14, 2018. Respondent was served with
the complaint but has not appeared, responded, or otherwise participated
in these proceedings. 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).

   Count 1. On June 30, 2014, Respondent initiated a lawsuit on behalf of
“Client 1,” alleging the defendants made false accusations that caused
Client 1 to be terminated from his employment. Respondent failed to
move the case forward, resulting in the court dismissing the case under
Trial Rule 41(E). The court reinstated the case upon Respondent’s request
for relief.



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   Thereafter, Respondent failed to file witness and exhibit lists. The court
granted the defendants’ motion to exclude Client 1 from presenting
witnesses and evidence. Based on this order, the defendants moved to
dismiss the lawsuit. Respondent then filed a motion to dismiss the case
voluntarily. The court dismissed the case, but reinstated it the next day on
Client 1’s motion, which alleged he had been unable to reach Respondent
and that Respondent had dismissed the case without Client 1’s
knowledge.

  At the pretrial conference following reinstatement of the case,
Respondent claimed that from the outset Client 1 had agreed to dismiss
the case if Respondent determined the defendants had no means to pay
any damages. However, Respondent never informed Client 1 of the
defendants’ financial status or Respondent’s intent to dismiss the case.
Respondent told the court he was unaware of the order excluding
witnesses and exhibits. After giving the parties an opportunity to present
argument on whether Client 1 could prosecute his case given his inability
to present evidence, the court dismissed the case.

  Respondent paid Client 1 $3,000 in exchange for Client 1’s agreement
not to file a lawsuit or disciplinary action against Respondent. Respondent
did not inform Client 1 in writing of his right to seek independent counsel
to determine whether the $3,000 transaction was in Client 1’s best interest.

   Count 2. On August 5, 2015, “Clients 2,” “Husband” and “Wife,”
paid Respondent a $1,000 retainer to pursue a breach of contract claim
against the previous owner of their home. Respondent failed to provide
Clients 2 with updates, and Wife’s attempts to contact Respondent were
often unsuccessful.

  In May 2016, Respondent informed Clients 2 that the $1,000 retainer
had been exhausted and there was an outstanding balance. He also
requested an additional $700 retainer for future work, which Clients 2
paid.

  In September 2016, Respondent represented that he would e-file a
complaint. His legal assistant later advised Clients 2 that the office had
computer problems and if they paid a filing fee a complaint could be filed



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“manually.” (HO’s Report at 9.) Wife dropped the filing fee off at
Respondent’s office. However, the clerk did not accept the complaint for
filing because Respondent’s trust account had insufficient funds to cover
the filing fee. The legal assistant next told Wife that she and Husband
needed to come into the office to sign the lawsuit so it could be e-filed.
The legal assistant set up four appointments for Clients 2 to meet with
Respondent, but Respondent failed to attend any of the meetings.

   In October 2016, Respondent’s legal assistant told Wife that the lawsuit
had not been filed and they should hire another attorney. Wife requested
a copy of their file. The legal assistant promised to have it ready. Wife
went to the office and was reviewing her file when Respondent arrived,
grabbed the papers from Wife’s hand, and told her that he would mail her
the file.

   On October 25, 2016, by email, Clients 2 fired Respondent and
requested a full refund of $2,580. That afternoon, Respondent replied by
email that he would send Wife a copy of their file within ten days and
would review the time he spent on the file regarding her refund request.
That evening, Respondent sent Wife a second email stating ([sic]
throughout):


      My contract allows me 10 business days to return your file and
      bill. Iam glad I returned to my office as you were taking
      advantage of my new secretary.
      Good luck in your endouver. BE AVISED THAT THIS EMAIL
      NOTICE: DO NOT RETURN TO MY OFFICE-TREASPASS-
      DON’T CALL OR EMAIL MY OFFICE HARASSSMENT AND
      IF I FIND SLANDER OR LIBEL I WILL TAKE APPROPRIATE
      ACTION! That includes you your husband or any releative.
      YOU ARE ON NOTICE!!


(HO’s Report at 11.)

   Clients 2 never received their complete file or the return of any
unearned fees. Respondent contended he was generous in not charging
Clients 2 for their numerous calls to his legal assistant.



Indiana Supreme Court | Case No. 18S-DI-00094 | August 21, 2018      Page 4 of 9
   Count 3. Respondent owned two websites on which he advertised
that his firm was composed of multiple lawyers, which was not true.
Respondent was a solo practitioner. He admitted to the Commission that
his websites were in error and claimed his web designer had locked him
out of the sites, preventing him from making changes. This was untrue.
Respondent had the capacity to modify the websites at all times. He also
informed the Commission he had deactivated both websites, but both
remained active.

   On July 31, 2017, the Commission sent Respondent a subpoena duces
tecum requesting a copy of the files for Client 1 and Clients 2. After
Respondent failed to respond, the Commission filed a Petition for Rule to
Show Cause. We ordered Respondent to respond to the subpoena and the
Rule to Show Cause petition. Respondent replied that he intended to
comply with the subpoena but needed more time to verify that the files he
previously sent to the Commission were complete. Respondent claimed he
had sent the Commission a letter by certified mail on August 14, 2017,
tracking number 7017 0530 0000 3528 7815, requesting a thirty-day
extension. He did not include a green card that would indicate the
delivery of certified mail. The tracking number Respondent provided does
not exist in the United States Postal Service system. When the Commission
sought to have Respondent prove the veracity of his statements, he never
responded.

   Count 4. Respondent has mismanaged his trust account. Checks for
$8,269.28 and $500 were presented against insufficient funds on,
respectively, December 16, 2013, and May 10, 2016.

   Respondent used Square Inc. to allow clients to pay by credit card. On
July 25, 2016, a $1,454.85 automated clearing house debit from Square, Inc.
was presented against insufficient funds. Respondent admitted to having
multiple issues with Square Inc. His continued use of Square Inc. failed to
safeguard client funds in the trust account.

   On September 9, 2016, the Commission requested from Respondent a
schedule of client and non-client funds in his trust account, trust account
journals of all receipts and disbursements, client ledgers, and periodic
monthly statements. In response, Respondent claimed the motherboard on


Indiana Supreme Court | Case No. 18S-DI-00094 | August 21, 2018    Page 5 of 9
his computer “went out,” his “billing software was lost,” and without his
“billing software records, the detailed accounting that was required of
[him] was not possible.” (HO’s Report at 16.)

    The Commission subpoenaed Respondent’s trust account records from
the bank. From 2013 through 2016, Respondent commingled either
personal or business funds with the client funds in his trust account. On
multiple occasions he withdrew funds from his trust account using online
or electronic transfers. In June 2016, he made five improper online or
electronic transfers from his trust account to his personal or business
checking account. In both July and August 2016, Respondent made at least
one online or electronic withdrawal from his trust account and placed the
funds in his business or personal checking account. These transfers from
the Respondent’s trust account were neither wire transfers nor checks
made payable to named payees and none were based on written
withdrawal authorizations.


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

   1.3: Failing to act with reasonable diligence and promptness.

   1.4(a)(3): Failing to keep a client reasonably informed about the status of
   a matter.

   1.8(a)(2): Entering into a business transaction with a client unless the
   client is advised in writing of the desirability of seeking and is given a
   reasonable opportunity to seek the advice of independent legal counsel
   on the transaction.

   1.15(a): Commingling client and attorney funds and failing to safeguard
   property of a client.

   3.2: Failing to expedite litigation consistent with the interests of a client.




Indiana Supreme Court | Case No. 18S-DI-00094 | August 21, 2018         Page 6 of 9
    7.1: Making a false or misleading communication about the lawyer or
    the lawyer's services.

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

    8.4(c): Engaging in conduct involving dishonesty, fraud, deceit, or
    misrepresentation.

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

    23(29)(a)(2): Failing to maintain and preserve a clear record of the date,
    amount, source, and explanation for funds held in trust.

    23(29)(a)(5): Making withdrawals from a trust account without written
    withdrawal authorization stating the amount and purpose of the
    withdrawal and the payee.

  The hearing officer cited as aggravating factors Respondent’s selfish
motive, pattern of misconduct, refusal to cooperate with the Commission,
deceptive practices during the disciplinary proceedings, and failure to
acknowledge the wrongful nature of his conduct. In mitigation, the
hearing officer found Respondent has no prior discipline, with the
exception of his current suspension for lack of cooperation related to this
disciplinary action. The hearing officer recommended that Respondent be
suspended from the practice of law for three years.

   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).




1Admission 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.




Indiana Supreme Court | Case No. 18S-DI-00094 | August 21, 2018                      Page 7 of 9
   Respondent’s dishonesty and neglect of clients’ cases are troubling. He
failed both to keep clients informed and to advance their cases. He
maintained websites with misleading information. He had multiple
violations relating to his trust account. He fabricated a story that he sent a
certified letter to the Commission, falsely represented he was locked out
of his websites, and failed to cooperate in the Commission’s investigation.
He has not accepted responsibility for his misconduct and elected not to
participate in these proceedings.

   Misconduct of a similar nature has resulted in a lengthy suspension or
disbarment. See Matter of Pierce, 80 N.E.3d 888 (Ind. 2017); Matter of
Denney, 983 N.E.2d 571 (Ind. 2013); Matter of Powell, 893 N.E.2d 729 (Ind.
2008). The Commission has not sought disbarment in this case. The
hearing officer recommended that Respondent be suspended for at least
three years. We agree with the hearing officer’s recommendation. After
the suspension period, Respondent may be reinstated only after proving
by clear and convincing evidence his remorse, understanding of the
standards imposed on members of the bar, and fitness to practice law. See
Ind. Admission and Discipline Rule 23(18)(b).


Conclusion
   Respondent already is under an order of suspension for failure to
cooperate with the Commission’s investigation into his misconduct in this
case. For Respondent’s professional misconduct, the Court suspends
Respondent from the practice of law in this state for a period of not less
than three years, without automatic reinstatement, effective from the date
of this opinion. At the conclusion of the minimum period of suspension,
Respondent may petition this Court for reinstatement to the practice of
law in this state, provided Respondent pays the costs of this proceeding,
fulfills the duties of a suspended attorney, and satisfies the requirements
for reinstatement of Admission and Discipline Rule 23(18).

  The costs of this proceeding are assessed against Respondent. The
hearing officer appointed in this case is discharged.




Indiana Supreme Court | Case No. 18S-DI-00094 | August 21, 2018       Page 8 of 9
All Justices concur.



NO APPEARANCE FOR THE RESPONDENT



ATTORNEYS FOR INDIANA SUPREME COURT
DISCIPLINARY COMMISS ION
G. Michael Witte, Executive Director
Aaron Johnson, Staff Attorney
Rachel B. Gallagher, Staff Attorney




Indiana Supreme Court | Case No. 18S-DI-00094 | August 21, 2018   Page 9 of 9
