

|Attorney for Respondent           |Attorney for the Indiana Supreme Court|
|Kevin P. McGoff                   |Disciplinary Commission               |
|Indianapolis, Indiana             |Donald R. Lundberg, Executive         |
|                                  |Secretary                             |
|                                  |Dennis K. McKinney, Staff Attorney    |
|                                  |Indianapolis, Indiana                 |
|                                  |                                      |
|                                  |                                      |



                                   In the

                            Indiana Supreme Court
                      _________________________________

                            No. 49S00-0405-DI-221

In The Matter Of

Mark Eugene Small
                                             Respondent.
                      ________________________________
                             Disciplinary Action
                      ________________________________




                              November 23,  2004


Per Curiam.

      We find today that Respondent Mark  Eugene  Small’s  mismanagement  of
his attorney trust account warrants his suspension from the practice of  law
in this state for six months. We will stay the period of suspension  subject
to conditions designed  to  ensure  his  compliance  with  basic  provisions
governing management of such accounts.
      This attorney disciplinary action began on  May  24,  2004,  when  the
Disciplinary Commission filed a verified complaint for  disciplinary  action
against  the  respondent,  alleging  several  acts  of  attorney  misconduct
involving his attorney trust account.  In resolution of the  complaint,  the
Commission and the respondent have submitted for  this  Court’s  approval  a
Statement  of  Circumstances  and  Conditional  Agreement   for   Discipline
pursuant to Ind.Admission and Discipline Rule 23(11).   In  that  agreement,
the respondent admits to misconduct and agrees with the Commission that a 6-
month stayed suspension is an appropriate sanction for his  misconduct.   We
today approve this agreement and herein recount the facts and  circumstances
of this case.  The respondent’s  admission  to  this  state’s  bar  in  1989
confers jurisdiction in this matter.
      The parties stipulate that the respondent opened a  trust  account  on
January 25, 2000.  The next day, the  respondent  deposited  $650  into  the
account on behalf of a certain client.   Thereafter,  through  a  series  of
disbursements made on the client’s  behalf,  the  respondent  by  April  13,
2000[1] had reduced the funds he held on the client’s  behalf  to  $30.   On
May 30, 2000, he drew a check for $500 on the account, payable  to  himself,
for attorney’s fees for legal work he provided to the  client,  despite  the
fact that the account by that time held only $30 in trust  for  the  client.
Similarly, on August 1,  2000,  the  respondent  disbursed  $2000  from  the
account on the client’s behalf, despite having exhausted  the  client  funds
he held in trust.  On August 11, 2000, he  deposited  $500  into  his  trust
account to “partially replace” funds of other clients or third parties  that
he had wrongly disbursed when he disbursed  more  money  on  behalf  of  the
client than he held in trust for the client.
      Similarly, in February 2000  the  respondent  was  obligated  to  hold
$584.50 in trust for a third party creditor  after  settling  a  lawsuit  on
another client’s behalf.   On February  24,  2000,  he  wrote  a  check  for
$584.50 to the third party creditor.   The  creditor  did  not  present  the
check for payment until October 10, 2000, at which  time  the  account  held
insufficient funds to satisfy the obligation and which resulted in the  bank
notifying the Commission of an overdraft of the respondent’s trust  account,
pursuant to Admis.Disc.R. 23(29).[2]   In fact, the  account’s  balance  had
fallen below sufficient levels on several occasions between February 24  and
October 10, 2000.  The Commission’s investigation of the respondent’s  trust
account overdraft revealed  that  the  respondent  had  failed  properly  to
distinguish between trust and non-trust funds, that  he  failed  to  account
separately for funds he held in trust for each client  or  entity,  that  he
failed  adequately  to  account  for  his  own  funds  that  he  allowed  to
accumulate in the account, and that he failed adequately  to  reconcile  his
own trust account records with monthly trust account bank statements.
      The respondent mismanaged his trust account in  other  ways  as  well.
In September 2000, the respondent disbursed $100  from  the  trust  account,
with a check payable to himself, to pay a filing fee for a client  for  whom
the respondent held no funds in trust.   Although  the  respondent  intended
that the disbursement come from his personal  funds,  the  account  did  not
contain sufficient  personal  funds  for  that  purpose.   Accordingly,  the
disbursement invaded money the respondent was holding  in  trust  for  other
clients and  third  parties.   On  other  occasions,  bank  service  charges
invaded client and third party funds held  in  the  account.   The  parties’
agreement recites that, although the respondent  “inadvertently”  held  some
of his personal funds in the account, he did not do so with  the  intent  of
maintaining an identified pool of  his  own  funds  to  maintain  a  nominal
balance, as permitted by Prof.Cond.R. 1.15(a). [3]
      We find that the respondent violated Prof.Cond.R. 1.15(a)  by  failing
to hold in his attorney trust account all of  the  client  and  third  party
funds he was obligated to hold in trust and  by  failing  to  keep  adequate
records of his attorney trust account.[4]  We find further  that  he  failed
to abide by Admis.Disc.R. 23(29)(a)(2) and (3) by his  failure  to  maintain
adequate trust account records.[5]
      The respondent and the Commission today ask us  to  approve  his  six-
month suspension from the practice of law, stayed to a  two-year  period  of
probation  subject  to  specific   conditions   designed   to   assure   the
respondent’s compliance with  required  attorney  trust  account  management
provisions. Relevant to the determination of the adequacy of  this  sanction
are factors in mitigation. Accordingly, the parties  cite  the  respondent’s
previously unblemished attorney disciplinary record and  the  fact  that  he
cooperated with the Commission during its investigation and  prosecution  of
this matter.  The  parties’  stipulations  indicate  that  the  respondent’s
funds mismanagement was the product of neglect, oversight, and ignorance  of
governing strictures and not a calculated plan to convert client  and  third
party funds.  With this in mind, are satisfied  that  the  agreed  sanction,
with its probationary conditions designed  to  educate  the  respondent  and
protect his clients, is adequate in this case.
      It is, therefore, ordered that the respondent, Mark Eugene  Small,  is
hereby suspended from the practice of law for a period of  six  (6)  months,
with the entire six months to  be  stayed,  and  the  respondent  placed  on
probation for two years, subject to the following terms  and  conditions  of
probation:


         • The respondent’s term of probation will begin on the  date  this
           Court accepts the terms of this agreement and his probation will
           run for two years thereafter.
         • Within six (6) months of the beginning of  his  probation  term,
           the respondent will  attend  an  ethics  seminar  with  a  trust
           account management section of at least one hour in length.
         • The respondent will have his trust account monitored by a CPA to
           criteria acceptable to the  Disciplinary  Commission,  who  will
           then report quarterly to  the  Commission  on  the  respondent’s
           compliance with  the  Rules  of  Professional  Conduct  and  the
           Admission and Discipline Rules for lawyer trust accounts.
         • The respondent will comply in all respects with his obligations,
           duties,  and  responsibilities  under  the  Indiana   Rules   of
           Professional Conduct for Attorneys at Law.
         • The respondent will report to the  Disciplinary  Commission  any
           changes in his business  or  home  address  or  employment  with
           fourteen (14) days of the change.
         • The respondent will be responsible for any other  costs  arising
           from his probation.
         • In  the  event  it  is  established  pursuant  to  Admis.Disc.R.
           23(17.2) that the respondent  has  violated  the  terms  of  his
           probation, then the stay of his six-month  suspension  shall  be
           vacated, and the respondent will be suspended from the  practice
           of law in Indiana for six months, with  automatic  reinstatement
           to the practice of law in Indiana thereafter.
         • The respondent  will  immediately  report  to  the  Disciplinary
           Commission any failure by him to comply with the  terms  of  his
           probation.  Such report is to be made in writing within 14  days
           of the compliance failure and  must  specifically  identify  the
           type and circumstance of his failure to comply with the terms of
           his probation.

      The Clerk of this Court is directed to provide notice  of  this  order
in accordance with Admis.Disc.R. 23(3)(d), to the hearing  officer,  and  to
the clerk of the United States Court of Appeals  for  the  Seventh  Circuit,
the clerk of each of the United States District Courts in  this  state,  and
the clerks of the United States Bankruptcy Courts in this state.
      Costs of this proceeding are assessed against the respondent.
-----------------------
[1] The conditional agreement refers to April 13, 2002, but the sequence of
events indicates the proper year is 2000.

[2] Admission and Discipline Rule 23(29)(b) provides:

(b) Overdraft Notification Agreement Required.   A financial institution
shall be approved as a depository for trust accounts if it files with the
Commission an agreement, in a form provided by the Commission, to report to
the Commission whenever any properly payable instrument is presented
against a trust account containing insufficient funds, irrespective of
whether or not the instrument is honored.  The Commission shall establish
rules governing approval and termination of approved status for financial
institutions, and shall annually publish a list of approved financial
institutions.  No trust account shall be maintained in any financial
institution that does not agree so to report.  Any such agreement shall
apply to all branches of the financial institution and shall not be
canceled except upon thirty (30) days' notice in writing to the Commission.


[3] In this respect, Indiana Professional Conduct Rule 1.15(a) provides
that “a lawyer shall hold property of clients or third persons that is in a
lawyer’s possession in connection with a representation separate from the
lawyer’s own property,” and that “[a] lawyer may deposit his or her own
funds reasonably sufficient to maintain a nominal balance.”

[4] Indiana Professional Conduct Rule 1.15(a) provides, in full:

A lawyer shall hold property of clients or third persons that is in a
lawyer's possession in connection with a representation separate from the
lawyer's own property.  Funds shall be kept in a separate account
maintained in the state where the lawyer's office is situated, or elsewhere
with the consent of the client or third person.  Other property shall be
identified as such and appropriately safeguarded.  Complete records of such
account funds and other property shall be kept by the lawyer and shall be
preserved for a period of five years after termination of the
representation.  A lawyer may deposit his or her own funds reasonably
sufficient to maintain a nominal balance.

[5] Those provisions provide:

      Maintenance Of Trust Funds In Approved Financial Institutions;
Overdraft Notification

      (a) Clearly Identified Trust Accounts In Approved Financial
Institutions And Related Recordkeeping Requirements.

(1) Attorneys shall deposit all funds held in trust in accounts clearly
identified as "trust" or "escrow" accounts, referred to herein as "trust
accounts" and shall inform the depository institution of the purpose and
identity of the accounts.  Funds held in trust include funds held in any
fiduciary capacity in connection with a representation, whether as trustee,
agent, guardian, executor or otherwise.  Attorney trust accounts shall be
maintained only in financial institutions approved by the Commission.
(2) Every attorney shall maintain and preserve for a period of at least
five (5) years, after final disposition of the underlying matter, the
records of trust accounts, including checkbooks, canceled checks, check
stubs, written withdrawal authorizations, vouchers, ledgers, journals,
closing statements, accounting or other statements of disbursements
rendered to clients or other parties with regard to trust funds or similar
equivalent records clearly and expressly reflecting the date, amount,
source, and explanation for all receipts, withdrawals, deliveries and
disbursements of the funds or other property held in trust.




