In the Matter of: Marcus E. Ellison , 87 N.E.3d 460 ( 2017 )

RESPONDENT PRO SE ATTORNEYS FOR THE INDIANA SUPREME COURT
Marcus E. Ellison DISCIPLINARY COMMISSION
South Bend, Indiana G. Michael Witte, Executive Director
Angie L. Ordway, Staff Attorney
Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
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FILED
No. 71S00-1704-DI-187 Dec 20 2017, 2:19 pm
CLERK
Indiana Supreme Court
IN THE MATTER OF: Court of Appeals
and Tax Court
MARCUS E. ELLISON,
Respondent.
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Attorney Discipline Action
Hearing Officer William J. Boklund
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December 20, 2017
Per Curiam.
We find that Respondent, Marcus Ellison, committed attorney misconduct by neglecting
an appeal and thereafter engaging in a pattern of dishonesty in an effort to cover up his neglect.
For this misconduct, we conclude that Respondent should be suspended for at least 90 days
without automatic reinstatement.
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 “Disciplinary
Complaint.” Respondent’s 2001 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 April 4, 2017.
Respondent was served with the complaint but did not respond. 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).
Respondent agreed to represent “Client” in an appeal from the denial of Client’s petition
to expunge her misdemeanor theft conviction. Respondent supervised a pro bono expungement
clinic sponsored by Ivy Tech and staffed by students, but Respondent had never done an appeal.
Respondent filed a notice of appeal in September 2015, and notice of completion of the transcript
was filed in November 2015, making an appellant’s brief due in December 2015.
Respondent did not timely file an appellant’s brief. Thereafter, Client emailed
Respondent several times to inquire about the status of her appeal. Twice, Respondent replied
by falsely implying that a brief had been filed.
In March 2016, an entry was made on the online appellate docket indicating the appeal
was being transmitted for dismissal due to the failure to file an appellant’s brief. Client saw this
entry and emailed Respondent, demanding an explanation and a file-marked copy of the brief
Respondent claimed to have filed. Respondent did not promptly reply to this email. Instead,
Respondent tendered to the Court of Appeals a motion for leave to file the appellant’s brief
belatedly. In that motion, Respondent falsely stated that he had prepared an appellant’s brief
“which was to be appended to transcript and notice of appeal but was apparently not attached.”
This tender was defective for multiple reasons and was not accepted by the Clerk for filing.
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Meanwhile, Respondent emailed a copy of the tendered appellant’s brief to Client, who replied
by pointing out to Respondent that the brief had not been accepted for filing.
On March 31, 2016, the Court of Appeals dismissed Client’s appeal with prejudice.
Respondent did not inform Client of the dismissal or take any steps to have the appeal reinstated.
Client filed a grievance with the Commission. During the Commission’s investigation,
Respondent gave multiple differing explanations for his failure to timely file an appellant’s brief,
at least two of which were knowingly false.
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:
1.1: Failing to provide competent representation.
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.
1.4(b): Failing to explain a matter to the extent reasonably necessary to permit a client to
make informed decisions.
3.3(a)(1): Knowingly making a false statement of fact to a tribunal.
8.1(a): Knowingly making a false statement of material fact to the Disciplinary
Commission in connection with a disciplinary matter.
8.4(c): Engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
Both parties have filed briefs addressing the issue of sanction. The Commission urges us
to suspend Respondent for at least 90 days without automatic reinstatement. Respondent
characterizes this sanction as “excessive” but does not otherwise specify what discipline he
believes would be appropriate. The hearing officer declined to make a sanction
recommendation.
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Respondent has no prior discipline, and standing alone his neglect of a single appeal
might have warranted a comparatively minor sanction. See, e.g., Matter of Brown, 973 N.E.2d
562 (Ind. 2012) (approving an agreed 30-day suspension with automatic reinstatement for
neglect of a criminal appeal). But Respondent’s pattern of dishonesty is very troubling and
elevates this into a much more serious offense. Respondent lied to Client, to the Court of
Appeals, and to the Commission, all in an attempt to cover up his neglect. Moreover,
Respondent has not accepted responsibility for any wrongdoing or demonstrated any insight into
his misconduct. Indeed, Respondent elected not to participate in proceedings before the hearing
officer, and the approximately one-page sanction brief Respondent filed with this Court is devoid
of any mention of his multiple dishonest acts. Under these circumstances, we agree with the
Commission that Respondent should be suspended for at least 90 days without automatic
reinstatement. See Matter of Yudkin, 61 N.E.3d 1169 (Ind. 2016); Matter of Loiseau, 957
N.E.2d 609 (Ind. 2011).
Conclusion
The Court concludes that Respondent violated Professional Conduct Rules 1.1, 1.3,
1.4(a)(3), 1.4(b), 3.3(a)(1), 8.1(a), and 8.4(c). For Respondent’s professional misconduct, the
Court suspends Respondent from the practice of law in this state for a period of not less than 90
days, without automatic reinstatement, effective January 31, 2018. Respondent shall not
undertake any new legal matters between service of this opinion and the effective date of the
suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission
and Discipline Rule 23(26). 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, and the hearing officer appointed in this case
is discharged.
All Justices concur.
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