In the Matter of Marcus E. Ellison ( 2018 )

FILED
Aug 08 2018, 11:45 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Indiana Supreme Court
Supreme Court Case No. 71S00-1704-DI-187
In the Matter of
Marcus E. Ellison
Respondent.
Decided: August 8, 2018
Attorney Discipline Action
Per Curiam Opinion
All Justices concur.
Per curiam.
We find that Respondent, Marcus Ellison, engaged in conduct in
contempt of this Court by failing to comply with our opinion suspending
him from practice. As sanctions for his contempt, we extend Respondent’s
suspension, order him to pay a fine, and order Respondent to serve 15
days in prison if the fine is not timely paid.
This matter is before the Court on the Indiana Supreme Court
Disciplinary Commission’s “Verified Motion for Rule to Show Cause.”
Respondent’s 2001 admission to this state’s bar and his unauthorized
practice of law in this state while suspended subject him to this Court’s
disciplinary jurisdiction. See IND. CONST. art. 7, § 4.
Discussion
On December 20, 2017, this Court issued an opinion suspending
Respondent from the practice of law for at least 90 days without automatic
reinstatement, effective beginning January 31, 2018. Respondent’s
misconduct involved neglect of an appeal and pervasive dishonesty
toward his client, the Court of Appeals, and the Commission. Matter of
Ellison, 87 N.E.3d 460 (Ind. 2017). That suspension remains in effect.
The Commission filed a “Verified Motion for Rule to Show Cause” on
April 16, 2018, asserting Respondent practiced law and held himself out as
an attorney while suspended. Specifically, the Commission alleges that on
separate occasions in February 2018 Respondent (1) attempted to engage
in settlement discussions with opposing counsel on behalf of “Client 1,”
and (2) identified himself as counsel for “Client 2” and sought electronic
copies of discovery from opposing counsel in that case.
The Commission’s verified motion asserts further that Respondent has
failed to comply with the duties of a suspended attorney under Indiana
Admission and Discipline Rule 23(26) as ordered by this Court.
Specifically, the Commission alleges among other things that Respondent
has failed to provide notice of his suspension in every pending matter in
which he has filed an appearance and has failed to withdraw as counsel in
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those pending matters. The Commission alleges that Respondent’s failure
to comply with the requirements of Rule 23(26) that he withdraw from
clients’ cases and make appropriate arrangements to transition those cases
to successor counsel or pro se representation has actively harmed the
interests of “Client 3,” against whom summary judgment and final
judgment were sought and awarded while Respondent was suspended
and unable to file anything on Client 3’s behalf.
The Court issued an order to show cause on April 17, 2018. Respondent
filed a response on May 1, 2018, and the parties filed additional responsive
pleadings thereafter. Respondent’s responses are not verified, nor do they
directly contradict the factual allegations made by the Commission in its
verified motion. With respect to Client 1, Respondent points to settlement
discussions that he claims occurred prior to his suspension taking effect,
but Respondent does not deny the Commission’s allegation that he
attempted to engage opposing counsel in a settlement discussion after his
suspension became effective. With respect to Client 2, Respondent admits
that after the effective date of his suspension he sent an email to opposing
counsel in which he requested discovery, identified himself as “the listed
attorney on this matter,” stated “I am local counsel for the client,” and
informed opposing counsel that “I have been asked to withdraw.” And
with respect to Client 3, Respondent implicitly acknowledges his failure to
comply with the requirements of Rule 23(26) but claims without any
support that the entry of summary judgment against Client 3 was the
result of a settlement reached months earlier, prior to his suspension
taking effect.
Based on the above, we find that Respondent has violated this Court’s
opinion suspending him from the practice of law as asserted by the
Commission in its verified motion.1 And as we did in another opinion
handed down today, we conclude that a fine and extension of
Respondent’s suspension are warranted here, and that Respondent should
1We do not address an additional allegation of contempt with respect to “Client 4,” which
was asserted by the Commission for the first time in an unverified responsive pleading.
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serve a period of imprisonment if he fails to timely pay his fine in full. See
Matter of Huston, ___ N.E.3d ___ (Ind. Aug. 8, 2018).
Conclusion
We conclude that Respondent engaged in conduct in contempt of this
Court by failing to comply with our opinion suspending him from
practice, and we impose the following sanctions for Respondent’s
contempt.
The Court fines Respondent $750. Respondent shall remit this amount
within thirty (30) days of service of this opinion to the Clerk of the
Indiana Supreme Court, Court of Appeals, and Tax Court.
If Respondent fails to pay the $750 fine in full by the deadline set
forth above, this Court shall order Respondent to serve a term of
imprisonment for a period of 15 days, without the benefit of good time,
and the Sheriff of the Supreme Court of Indiana will be directed to take
Respondent into custody and turn him over to the Indiana Department of
Correction. Respondent may avoid said imprisonment only upon
payment in full of the $750 fine assessed against him within the deadline
set forth above. In the event Respondent fails to timely pay his $750 fine in
full and serves the resulting term of imprisonment, Respondent thereafter
shall be released from the obligation to pay the assessed fine.
Finally, the Court orders that the minimum length of Respondent’s
current suspension from the practice of law in this state be extended and
that Respondent remain suspended for a period of not less than one year,
without automatic reinstatement, effective from the date of this opinion.
The costs of this proceeding are assessed against Respondent and will
be taxed by separate order.
All Justices concur.
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RESPONDENT PRO SE
Marcus E. Ellison
South Bend, Indiana
ATTORNEYS FOR INDIANA SUPREME COURT
DISCIPLINARY COMMISS ION
G. Michael Witte, Executive Director
Angie L. Ordway, Staff Attorney
Indianapolis, Indiana
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