NO APPEARANCE FOR THE RESPONDENT                      ATTORNEYS FOR THE INDIANA SUPREME COURT
                                                      DISCIPLINARY COMMISSION
                                                      G. Michael Witte, Executive Director
                                                      Rachel B. Gallagher, Staff Attorney
                                                      Indianapolis, Indiana

______________________________________________________________________________

                                             In the                                 FILED
                           Indiana Supreme Court                               08/31/2017, 11:48 am
                             _________________________________                      CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court
                                     No. 61S00-1703-DI-153

IN THE MATTER OF:

JOHN DOWNEY PIERCE,
                                                       Respondent.
                             _________________________________

                                   Attorney Discipline Action
                                 Hearing Officer John A. Rader
                             _________________________________


                                         August 31, 2017

Per Curiam.


       We find that Respondent, John Downey Pierce, committed attorney misconduct by,
among other things, mismanaging his trust account, converting client funds, disobeying a court
order, 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
“Disciplinary Complaint.” Respondent’s 1999 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 “Disciplinary Complaint” against Respondent on March 17,
2017. 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 Disciplinary 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. In September 2015, Respondent commingled personal and client funds in his
trust account 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’
uncontested 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.




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        Count 3. In July 2016, the Commission demanded a response from Respondent with
respect to another grievance. 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 multiple 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 concur 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 create 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 disobeying a court order and an obligation under the 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
            information.



1
  All told, Respondent was the subject of five different show cause proceedings initiated in 2016, the
latter three of which resulted in noncooperation suspensions. Following Respondent’s continued
noncooperation, his suspension in Case No. 61S00-1608-DI-441 was converted to an indefinite
suspension, which remains in effect.
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).


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       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 misrepresentation.

       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 Rules:3

       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.

       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 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 progressively 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 responsibilities 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 pervasively 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 herein are to
the version of Rule 23(29) in effect at the time of Respondent’s misconduct.



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                                           Conclusion


       Respondent already is under indefinite suspension 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.


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.




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