In the Matter of Bergdoll , 2008 Ind. LEXIS 1071 ( 2008 )

894 N.E.2d 526 (2008)

In the Matter of John C. BERGDOLL, Respondent.

No. 41S00-0505-DI-203.

Supreme Court of Indiana.

March 28, 2008.

ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a "Statement of Circumstances and Conditional Agreement for Discipline" stipulating agreed facts and proposed discipline as summarized below:

Facts: Respondent presented a check written on his attorney trust account to the Bankruptcy Court Clerk for three clients. The bank dishonored the check for insufficient funds. A subsequent investigation revealed numerous problems with Respondent's use of his trust account. There are no facts in aggravation. Facts in mitigation are: (1) because of diminished vision, Respondent relied on bank personnel to help with transactions; (2) Respondent deposited his own funds to cover the overdraft and no clients were harmed; (3) Respondent has now established accounting practices that comply with applicable rules; (4) Respondent has no prior discipline; and (5) Respondent has been cooperative.

Violations: The parties agree that Respondent violated these Indiana Admission and Discipline Rules prohibiting the following misconduct:

23(29)(a)(1): Failing to deposit all funds held in trust into a trust account.

23(29)(a)(2): Failing to properly maintain and preserve trust account records.

23(29)(a)(3): Failing to maintain a trust account ledger.

23(29)(a)(4): Failing to properly identify the client for all deposits and disbursements from a trust account.

23(29)(a)(5): Failing to use proper written authorization for disbursements for cash.

Discipline: The parties agree the appropriate sanction is suspension for 30 days, all stayed, with Respondent placed on probation for one year during which Respondent shall have his trust account monitored by a certified public accountant ("CPA") for compliance with the Rules of Professional Conduct and the Admission and Discipline Rules governing lawyer trust accounts.

The Court, having considered the submission of the parties, now APPROVES and ORDERS the agreed discipline.

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of 30 days, all stayed, subject to a one-year period of probation during which Respondent shall have his trust account monitored by a CPA at his own expense to criteria acceptable to the Commission, who will report quarterly to the Commission on Respondent's compliance with the Rules of Professional Conduct and the Admission and Discipline Rules governing lawyer trust accounts. The Court incorporates by reference additional terms and conditions of probation set forth in the parties' Conditional Agreement.

The costs of this proceeding are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in this case is discharged.

The Court directs the Clerk to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d).

All Justices concur.