FOR THE RESPONDENT
Bruce A. Kotzan
131 East Ohio Street
Indianapolis, Indiana 46204
FOR THE INDIANA SUPREME COURT DISCIPLINARY COMMISSION
Donald R. Lundberg, Executive Secretary
Fredrick L. Rice, Staff Attorney
115 West Washington Street, Suite 1165
Indianapolis, IN 46204
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) CASE NO. 49S00-0008-DI-493
DAN L. CLAYTON )
November 15, 2002
Dan L. Clayton, an attorney admitted to practice law in this state in
1971, committed several acts of misconduct, which he attributes to addiction to alcohol
and certain prescription drugs. Today, we suspend him from the practice of law.
The Disciplinary Commission filed a five-count complaint for disciplinary action against the respondent
on August 23, 2000. A hearing officer appointed by this Court, pursuant to
Ind. Admission and Discipline Rule 23, Section 11(b), conducted an evidentiary hearing on
the charges and has now tendered to this Court his findings and conclusions.
The Commission has petitioned us for review of those findings, arguing that the
hearing officers failure to find violations of all charged rule violations was erroneous.
Where a party petitions this Court for review of the hearing officers report,
our review is
de novo in nature and entails a review of the
entire record before us. Matter of Wilder, 764 N.E.2d 617 (Ind. 2002).
As to Count 1, we find that the respondent settled a personal injury
claim for his clients and deposited the settlement check in his trust account.
Pursuant to his agreement with the clients, the respondent was to pay a
subrogation lien owed to an insurance company. The respondent failed to pay the
subrogation lien and his trust account subsequently was closed with a zero balance.
The hearing officer found the respondent violated Ind. Professional Conduct Rule 1.15(b), by
failing promptly to deliver funds in payment of the subrogation lien to the
insurance company. The hearing officer did not find violations of Prof.Cond.R. 8.4(b) and
8.4(c), which prohibit attorneys from engaging in criminal conduct that reflects adversely on
the attorneys honesty, trustworthiness, or fitness as an attorney in other respects and
conduct involving dishonesty, fraud, deceit or misrepresentation. The Commission challenges the hearing officers
failure to find violations of these two provisions.
The respondent testified that he used settlement funds in his trust account earmarked
for the payment of the subrogation lien to pay his operating expenses, though
he contends he intended to repay the funds. Criminal conversion requires the knowing
exertion of unauthorized control over the property of another. IC 35-43-4-3. The respondents
testimony establishes conversion of the insurance companys funds. We therefore conclude that the
respondent violated Prof.Cond.R. 1.15(b), 8.4(b) and 8.4(c) by not promptly delivering funds to
the insurance company and by knowingly converting those funds to his own use
Under Count 2, the Commission charged the respondent with failing to pay funds
owed to a client from the settlement of a claim. The hearing officer
found the evidence submitted by the Commission established only that the respondent deposited
a settlement check into his trust account, but did not pay a subrogation
lien before closing the account. We accept the hearing officers conclusion that these
facts do not demonstrate by clear and convincing evidence that the respondent violated
Prof.Cond.R. 8.4(b) and 8.4(c).
The Commission dismissed Count 3 of the
Under Count 4, we find that on May 11, 2000, the Commission served
on the respondent a subpoena pursuant to Admis.Disc.R. 23, Section 9(f), in conjunction
with its investigation of the respondent. The respondent failed to respond to the
subpoena. We find that the respondent violated Prof.Cond.R. 8.1(b), which requires attorneys to
respond to lawful demands for information from the Commission.
Under Count 5, we find that clients hired the respondent to represent them
in a medical malpractice claim against a hospital. The hospital served the respondent
with interrogatories and a request for production of documents. The respondent did not
respond to these discovery requests. The hospital filed motions to dismiss and to
compel, which the court set for hearing. The court also issued an order
requiring that the discovery be provided within 20 days. Subsequently, the clients informed
the court that they had discharged the respondent. The court ordered the respondent
to withdraw within sixty days and, if he failed to do so, the
matter would be set for a contempt hearing. The respondent neither withdrew nor
appeared at the contempt hearing and the court found the respondent in contempt.
Shortly thereafter, the Commission served a request on the respondent to answer a
grievance related to his representation of the clients in this case. The respondent
failed to reply.
By his conduct under Count 5, we find that the respondent violated Prof.Cond.R.
1.16(a)(3), which requires an attorney to withdraw from representation upon being discharged; Prof.Cond.R.
3.2, which requires an attorney to make reasonable efforts to expedite litigation; Prof.Cond.R.
3.4(c), which provides that an attorney shall not knowingly disobey an obligation under
the rules of a tribunal; Prof.Cond.R. 8.4(d), which prohibits an attorney from engaging
in conduct prejudicial to the administration of justice; and Prof.Cond.R. 8.1(b), which requires
attorneys to respond to lawful demands for information from the Commission.
We must now determine an appropriate sanction for the respondents misconduct. The hearing
officer recommends a ninety-day suspension, with reinstatement subject to two years of probation.
The hearing officer cites the respondents professed addiction problem and treatment as extenuating
circumstances. The Commission argues that an appropriate sanction is a suspension from the
practice of law for between six and eighteen months.
In cases where alcohol or drug problems led to arrests and convictions of
attorneys, but did not directly involve their law practice, probationary sanctions have been
imposed. See, e.g.,
Matter of Martinet, 674 N.E.2d 549 (Ind. 1996) (Six month
suspension, conditionally stayed for twelve months provided the respondent continue in an alcohol
abuse aftercare program, in case involving three convictions for operating a vehicle while
intoxicated); Matter of Kummerer, 714 N.E.2d 653 (Ind. 1999) (Six month suspension, the
first thirty days served, the balance conditionally stayed upon completion of one year
probation, in case involving purchase and possession of cocaine); Matter of Haith, 742
N.E.2d 940 (Ind. 2001) (Twelve month suspension, conditionally stayed upon two years probation,
in case involving three convictions for operating a vehicle while intoxicated, two of
which involved personal injury).
In this case, the respondents violations were not simply substance abuse, but ethical
violations related directly to his performance as an attorney. We therefore find that
a purely probationary sanction is inadequate here. See, e.g.,
Matter of Gemmer, 679
N.E.2d 1313 (Ind. 1997) (One year suspension, without automatic reinstatement, with any reinstatement
subject to treatment and restitution, in case involving criminal conversion where hearing officer
found conduct likely an outgrowth of depression, alcoholism and gambling); Matter of Ragland,
697 N.E.2d 44 (Ind. 1998) (Six month suspension, with future reinstatement subject to
one year probation, in case involving five counts of use of client funds
for respondents own purposes amid allegations of chemical and alcohol dependency contributing to
It is clear that the respondent has a serious addiction problem and that
treatment has been an ongoing challenge for him. By his own admission, the
respondents addictions are directly linked to his misconduct. That he recognizes the connection
is commendable, but does not diminish the seriousness of his misconduct or our
duty to protect the public and the profession from it. We therefore conclude
that the respondents conduct warrants a suspension from the practice of law, and
that any future entitlement to practice law must be conditioned upon continued treatment
for his addictions.
It is therefore, ordered that the respondent, Dan L. Clayton, is suspended from
the practice of law in this state for a period of six (6)
months, without automatic reinstatement, effective December 31, 2002. Any reinstatement of the respondent
will likely be subject to a two (2) year probationary period requiring the
respondent to continue in addiction treatment and pay restitution.
The Clerk of this Court is directed to forward a copy of this
Order to the hearing officer and in accordance with the provisions of Admis.Disc.R.
23, Section 3(d).
Costs of this proceeding are assessed against the respondent.