text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Koren M. HAIMAN, Defendant-Appellant.
    No. 2-15-1242
    Appellate Court of Illinois, Second District.
    Opinion filed June 8, 2018
    Michael J. Pelletier, Thomas A. Lilien, and Erin S. Johnson, of State Appellate Defender's Office, of Elgin, for appellant.
    Robert B. Berlin, State's Attorney, of Wheaton (Lisa Anne Hoffman and Edward R. Psenicka, Assistant State's Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HUDSON delivered the judgment of the court, with opinion.

¶ 1 After a jury trial, defendant, Koren M. Haiman, was convicted of unlawfully possessing a controlled substance ( 720 ILCS 570/402(c) (West 2014) ). The trial court denied her motion for a new trial and imposed 24 months' first-offender probation (see id. § 410). On appeal, defendant contends that the trial court erred in granting the State's pretrial motion to bar her from testifying that, at the time of the offense, she had a legal prescription. We affirm.

¶ 2 I. BACKGROUND

¶ 3 On December 11, 2014, the State charged that, on or about May 16, 2014, defendant knowingly and unlawfully possessed a substance containing hydromorphone. On August 4, 2015, defendant filed notice that she would be presenting an affirmative defense based on section 302(c)(3) of the Illinois Controlled Substances Act (Act) (id. § 302(c)(3) ). As pertinent here, section 302(c)(3) allows the possession of controlled substances by "an ultimate user * * * pursuant to a lawful prescription of a practitioner." Id.

¶ 4 On August 17, 2015, in a discovery motion, the State requested a copy of the prescription, the name of the issuing physician, and the date of issuance. On August 20, 2015, at a hearing, defendant's attorney clarified that she had no more discovery to tender, that only defendant would testify to the prescription, and that she would not name the physician or the date of issuance.

¶ 5 On August 24, 2015, the State moved in limine to bar any statements by defendant as to a lawful prescription. The State argued as follows. Section 302(c)(3) is a statutory exemption. Therefore, under section 506 of the Act, the burden of proof is upon the person claiming it. Id. § 506. Defendant had failed to tender any evidence to place her within the exemption. Section 312(a) of the Act (id. § 312(a) ) allows a practitioner to dispense a controlled substance "upon a written or electronic prescription of any prescriber, dated and signed by the person prescribing * * * on the day when issued and bearing the name and address of the patient for whom * * * the controlled substance is dispensed." Thus, the State reasoned, the information provided in a prescription is created by the prescriber or practitioner and is not within the patient's personal knowledge, making defendant's statements inadmissible hearsay. Moreover, under section 312(g) of the Act, even one with a lawful prescription for a controlled substance "may lawfully possess such substance only in the container in which it was delivered to him or her by the person dispensing such substance." Id. § 312(g).

¶ 6 Further, the State contended, defendant's mere statement that she had had a lawful prescription for the drug would not satisfy her burden of proof under section 506. Finally, to allow the statements would be unfairly prejudicial; without the name of the prescribing physician or the date of issuance, the State would be unable to investigate and rebut the claim of an exemption.

¶ 7 On August 24, 2015, the trial court heard the State's motion. The prosecutor argued that a fact finder could not conclude that defendant had had a lawful prescription if she could not say when and by whom the prescription had issued. Defendant's attorney contended that the prosecutor's argument went to the weight to be given defendant's statements, not their admissibility. She added that defendant should be allowed to present her defense.

¶ 8 In an offer of proof, defendant's attorney stated that defendant would testify "that a doctor did give her a valid prescription, she is unable to remember which doctor, because she's had a lot of medical procedures in the past few years." The attorney added that defendant could not provide a name "but she [could] certainly say that it was not unlawfully obtained, that she was given a prescription from a doctor." The court asked whether the foregoing would be sufficient to shift the burden of proof. Defendant's attorney responded that she would have defendant testify to "where she's lived, * * * how many different procedures she's had, in what span of time, you know, she can just give a little bit of background as to her medical history." The court observed that it would be "very easy" for defendant to say that she had had a prescription but could not remember the doctor or the date of issuance, but then the State would have been "tendered no discovery, no doctor name, no prescription, no [']is it Walgreens' on Roosevelt Road.['] I mean nothing. So they can't rebut it." Defendant's attorney reiterated that defendant could testify about her numerous medical procedures. But in response to the court's question "[h]as that all been disclosed?" she said, "No, * * * because we're not going to get into the details of it." The court noted that the undisclosed information was defendant's explanation of why she could not remember the doctor or the date of the prescription.

¶ 9 The court also was troubled by the possibility that, if it denied the State's motion, defendant would testify that "all of a sudden she remembers the name of the doctor or * * * there's information that the State never had." Defendant's attorney stated that she had spoken with defendant and that defendant did not remember that information. She reassured the court that she would not be "getting into any specifics" and did not believe that defendant would testify to any specifics.

¶ 10 The prosecutor argued that the shortcomings in defendant's proposed testimony went not merely to its weight but to whether the matters were within her personal knowledge; otherwise, testimony about the prescription would be inadmissible hearsay. Further, if defendant were to testify about her medical procedures and residence changes, then she would have to disclose that information to the State. Defendant's attorney noted that defendant had had "so many different doctors and ER visits that she [did not] even know." Although the attorney "would [have] love[d] to have been able to give the State a few different doctors to talk to," she was "not in that position." The prosecutor responded that for this very reason the State would be put into an impossible position by defendant's testimony: it would require the State "to go send out subpoenas to every pharmacy we could possibly imagine in order to rebut this defense."

¶ 11 The court stated that allowing defendant to testify to having had a prescription issued by a named doctor on a specific date might not violate the hearsay rule, but that allowing her mere testimony that she had had a prescription, without giving the State any basis for that testimony, would be improper. In the court's view, defendant had not tendered the State sufficient information to place her within the exemption. The court concluded, "I don't think that in this situation it would be permissible, the State having no information at all about this to allow it to go forward based on what [defendant] presented." The court granted the State's motion.

¶ 12 At defendant's jury trial, the State first called Salvador Perez, a Warrenville police officer. He testified as follows. On May 16, 2014, at approximately 9 a.m., he was on patrol and saw a vehicle being driven with an expired registration. He stopped the car and approached. Defendant was driving, and there was a male passenger. Perez asked defendant for her driver's license and proof of insurance. She looked for the documents in her purse. Perez saw that the license was expired, placed defendant into custody for the violation, and called a backup officer.

¶ 13 Perez testified that, because the passenger did not have a valid license, he called to have the car towed. Next, he conducted an inventory search. Inside the purse were two pill bottles with labels and one pill bottle without a label. Inside the unlabeled bottle were five yellow pills and two white ones. Perez took the bottles to the police station, where he called a pharmacist in Oswego. Based on the conversation, the five yellow pills were returned to defendant. Perez placed the bottle and the two white pills into an evidence locker and later submitted them for testing.

¶ 14 Perez testified that he interviewed defendant about the seven pills in the unlabeled bottle. She said that the five yellow ones were hers but that she did not know how the two white ones got in there. She added that she did not know anything about the pills.

¶ 15 The court qualified Ticia Burge of the Du Page County Forensic Science Center as an expert in the analysis of controlled substances. She testified that she analyzed one of the white pills and concluded to a reasonable degree of scientific certainty that it contained hydromorphone. She also stated that the label had been torn off the bottle; there was a small portion left, but nothing was printed on it.

¶ 16 In closing argument, defendant maintained that the State had not proved that she knew that the white pills had been in her purse. The jury convicted her. She filed a motion for a new trial, contending in part that the court had erred by barring defendant from asserting as a defense that she had had a lawful prescription for the hydromorphone. The trial court denied the motion and imposed 24 months of first-offender probation. Defendant timely appealed.

¶ 17 II. ANALYSIS

¶ 18 On appeal, defendant contends that the trial court abused its discretion by granting the State's motion to bar her from testifying that she had been lawfully prescribed hydromorphone. Defendant argues that the trial court violated her constitutional right to present a defense and that the testimony could have been allowed with no unfairness to the State, which had been fully informed of the defense that she intended to present. Defendant asserts that case law construing section 302(c)(3) of the Act allows the admission of a defendant's testimony that she was prescribed a controlled substance. The State responds that the trial court properly barred defendant's testimony because section 302(c)(3) required her to introduce evidence of the practitioner who issued the prescription and that it was lawful and defendant would have been unable to testify to either prerequisite.

¶ 19 We hold that, under the totality of the circumstances, the trial court did not abuse its discretion in refusing to allow defendant to testify to the unsupported conclusion that, on the date at issue, she had a lawful prescription for hydromorphone.

¶ 20 A criminal defendant has the right to a meaningful opportunity to present a complete defense. Holmes v. South Carolina , 547 U.S. 319, 331, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006) ; People v. McCullough , 2015 IL App (2d) 121364, ¶ 104, 395 Ill.Dec. 124, 38 N.E.3d 1. This right is infringed by the exclusion of defense evidence under rules that serve no legitimate purpose or are disproportionate to the ends that they are asserted to promote. Holmes , 547 U.S. at 326, 126 S.Ct. 1727 ; McCullough , 2015 IL App (2d) 121364, ¶ 104, 395 Ill.Dec. 124, 38 N.E.3d 1. Nonetheless, a trial court may exclude evidence upon which a proposed defense is based if, in the exercise of its discretion, the court determines that the probative value of the evidence is outweighed by other factors, such as unfair prejudice, confusion of the issues, or potential to mislead the jury. Holmes , 547 U.S. at 326, 126 S.Ct. 1727 ; McCullough , 2015 IL App (2d) 121364, ¶ 104, 395 Ill.Dec. 124, 38 N.E.3d 1. The trial court's decision will not be disturbed absent an abuse of discretion. McCullough , 2015 IL App (2d) 121364, ¶ 104, 395 Ill.Dec. 124, 38 N.E.3d 1. The court abuses its discretion only when its decision is arbitrary, fanciful, or unreasonable, or when no reasonable person would take its view. Id.

¶ 21 Although this case deals with not a specific rule of evidence but rather an evidentiary ruling based on general principles of relevance, the foregoing principles apply: defendant contends that by excluding her testimony the trial court deprived her of a legitimate defense. Moreover, the balancing test that Holmes and McCullough call for is not noticeably dissimilar from that used generally in deciding whether to admit evidence: does the probative value of the evidence outweigh its potential for undue prejudice? Based on these principles, we cannot say that the trial court abused its discretion in barring defendant from testifying that, at the time at issue, she had a lawful prescription. Several considerations militate in favor of our conclusion that the court's decision was neither unreasonable nor unfair.

¶ 22 Had defendant been allowed to raise her defense of a lawful prescription, she would have had the burden to prove that it applied. 720 ILCS 570/506 (West 2014) ; People v. Kathan , 2014 IL App (2d) 121335, ¶ 25, 384 Ill.Dec. 269, 16 N.E.3d 365. Essentially, the sole evidence that she could have supplied was her own nonspecific testimony that, at the time of the stop, she had a lawful prescription. Yet, with no testimony as to who prescribed the hydromorphone, when the prescription was issued, for how long it was valid, or even where it was filled, defendant's testimony would have verged on a conclusion of ultimate fact.

¶ 23 We note first that allowing testimony verging on a bare conclusion (if indeed not going over the line) would render the burden of proof under section 506 of the Act essentially meaningless. Indeed, it would allow a defendant to assert the defense in a manner that we cannot assume the Act's drafters intended. Second, even the vague testimony in defendant's offer of proof would appear to have been legally insufficient. As the State noted, even with a lawful prescription, a person "may lawfully possess such substance only in the container in which it was delivered to him or her by the person dispensing such substance." 720 ILCS 570/312(g) (West 2014). The offer included no testimony to this effect. Moreover, at least in retrospect, we can see why: the trial evidence showed that the two pills were found inside a bottle, with a missing label, containing a wholly different drug for which defendant had a prescription.

¶ 24 Thus, the trial court reasonably considered defendant's proposed testimony to be insufficient to raise a statutory defense that should go to a jury. As opposed to this, the court recognized that to allow this testimony would have placed an unreasonable and unfair burden on the State: in order to rebut the defense (as opposed to simply undermining it on cross-examination), the State would have had to prove a negative by going on a "wild goose chase"-but instead of having to contact every pharmacy that defendant had visited until it found the "goose," it would have had to contact all of them in order to prove that there was no "goose." The court reasonably considered this to be an excessive and unreasonable burden. Also, we cannot discount the court's concern with the possibility, even if remote, that defendant would disclose the needed facts only after she took the witness stand.

¶ 25 Defendant relies heavily on People v. Kolichman , 218 Ill. App. 3d 132, 161 Ill.Dec. 211, 578 N.E.2d 569 (1991), for the proposition that, because the lawful-prescription exemption is "tantamount to an affirmative defense" ( id. at 144, 161 Ill.Dec. 211, 578 N.E.2d 569 ), she needed to produce only "some evidence" (internal quotation marks omitted) ( People v. Johns , 387 Ill. App. 3d 8, 13, 325 Ill.Dec. 863, 898 N.E.2d 1142 (2008) ) or "slight evidence" ( People v. Kucavik , 367 Ill. App. 3d 176, 179, 304 Ill.Dec. 913, 854 N.E.2d 255 (2006) ) to be entitled to place it before the jury. However, even granting this much, the evidence, however slight, must relate to the requirements of the exemption. Here, defendant's offer of proof did not include even slight evidence that the person who issued the alleged prescription was a "practitioner" as section 302(c)(3) requires or that it was a "lawful prescription" as it also requires. (Emphasis added.) 720 ILCS 570/302(c)(3) (West 2014).

¶ 26 By contrast, in Kolichman , the defendant did meet this threshold. He was charged with a controlled-substances offense and relied on the lawful-prescription exemption. At trial, he testified that he had received a prescription from a named physician and had refilled it twice. Further, he introduced into evidence copies of receipts from a named pharmacy and testified that the substances taken from him at his arrest came from the unused portion of the prescription. Kolichman , 218 Ill. App. 3d at 137, 161 Ill.Dec. 211, 578 N.E.2d 569. Thus, although Kolichman supports defendant's contention that she was required to introduce only some evidence that the exemption applied to her in order to place that defense before the jury, in this case the proffered evidence did not satisfy even this requirement.

¶ 27 We note that defendant attempted to shore up her offer of proof by including proposed testimony about her numerous medical procedures and residences in the years preceding her arrest. However, beyond the fact that this proposed testimony was only tangentially related to whether defendant had a lawful prescription for a specific controlled substance at a specific time, her attorney conceded that she had not disclosed this information to the State and could make only limited and general disclosures. Thus, the proposed corroboration, such as it was, did not strengthen the argument for admitting defendant's testimony.

¶ 28 III. CONCLUSION

¶ 29 We hold that the trial court did not err in excluding defendant's proposed testimony. Therefore, we affirm the judgment of the circuit court of Du Page County. As part of our judgment, we grant the State's request that defendant be assessed $50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls , 71 Ill. 2d 166, 178, 15 Ill.Dec. 759, 374 N.E.2d 194 (1978).

¶ 30 Affirmed.

Justices Schostok and Spence concurred in the judgment and opinion.

      The State had earlier charged defendant with driving with a suspended license (625 ILCS 5/6-303 (West 2014) ) and two other traffic offenses. At trial, the court granted defendant a directed verdict on the license offense, and the State later dismissed the other charges.

      The trial court had earlier suppressed defendant's statements to Perez, based on Miranda violations. Here, the court admitted the statement on redirect examination because, on cross-examination, defendant had "opened the door" by questioning Perez whether defendant ever told him where the white pills came from.

      Also, although defendant's statements to Perez were suppressed because of Miranda violations, the one that the court admitted at trial-that she did not know how the hydromorphone pills got into the bottle-was inconsistent with her proposed defense of a lawful prescription. We recognize that, had defendant been allowed to present this defense instead of relying on lack of knowledge, the State would not have been able to use the statement to rebut her testimony directly. However, it appears that the State could have introduced her statement to impeach her testimony. See Oregon v. Hass , 420 U.S. 714, 722-24, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975) ; People v. Harris , 375 Ill. App. 3d 398, 406, 313 Ill.Dec. 960, 873 N.E.2d 584 (2007).


source: Caselaw Access Project

author: All Justices concur.

license: Public Domain

text:
    In the MATTER OF: Breanne Joy STRUBINGER, Respondent
    Supreme Court Case No. 49S00-1701-DI-11
    Supreme Court of Indiana.
    FILED August 30, 2018
    Published Order Revoking Probation and Imposing Suspension
    On October 5, 2017, the Court entered an order suspending Respondent from the practice of law for a period of 180 days, with 90 days actively served and the remainder stayed subject to completion of at least 24 months of probation with monitoring by the Judges and Lawyers Assistance Program (JLAP). The order stated: "If Respondent violates the terms of her probation, the stay of her suspension may be vacated and the stayed suspension may be actively served without automatic reinstatement."
    On July 18, 2018, the Commission filed a verified motion to revoke Respondent's probation, pursuant to Admission and Discipline Rule 23(16)(c), asserting Respondent violated the conditions of probation by virtue of her termination from JLAP due to her noncompliance with her monitoring agreement. Respondent filed no response. Her failure to file an answer to the Commission's motion is deemed to be an admission to the Commission's averments. See Admis. Disc. R. 23(16)(c)(2).
    Being duly advised, the Court GRANTS the motion and revokes Respondent's probation. Respondent shall be suspended from the practice of law for a period of not less than 90 days, without automatic reinstatement, effective immediately. Respondent already is under a suspension order for continuing legal education noncompliance and dues nonpayment. Respondent is ordered to fulfill the continuing 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). Reinstatement is discretionary and requires clear and convincing evidence of the attorney's remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(18)(b).
    The costs of this proceeding are assessed against Respondent.
   All Justices concur.


author: Per curiam.

text:
    In the MATTER OF Michael JEFFRIES, Respondent.
    Supreme Court Case No. 18S-DI-00094
    Supreme Court of Indiana.
    Filed August 21, 2018
    NO APPEARANCE FOR THE RESPONDENT
    ATTORNEYS FOR INDIANA SUPREME COURT DISCIPLINARY COMMISSION: G. Michael Witte, Executive Director, Aaron Johnson, Staff Attorney, Rachel B. Gallagher, Staff Attorney
    Attorney Discipline Action
   Per curiam.

We find that Respondent, Michael Jeffries, committed attorney misconduct by neglecting clients' cases, maintaining two websites with misleading information, mismanaging his trust account, making false statements to the Indiana Supreme Court Disciplinary Commission, and failing to cooperate in the disciplinary process. For this misconduct, we conclude that Respondent should be suspended for at least three years without automatic reinstatement.

The matter is now before us on the report of the hearing officer appointed by this Court to hear evidence on the Commission's verified disciplinary complaint. Respondent's 2000 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 "Verified Complaint for Disciplinary Action" against Respondent on February 14, 2018. 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 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. On June 30, 2014, Respondent initiated a lawsuit on behalf of "Client 1," alleging the defendants made false accusations that caused Client 1 to be terminated from his employment. Respondent failed to move the case forward, resulting in the court dismissing the case under Trial Rule 41(E). The court reinstated the case upon Respondent's request for relief.

Thereafter, Respondent failed to file witness and exhibit lists. The court granted the defendants' motion to exclude Client 1 from presenting witnesses and evidence. Based on this order, the defendants moved to dismiss the lawsuit. Respondent then filed a motion to dismiss the case voluntarily. The court dismissed the case, but reinstated it the next day on Client 1's motion, which alleged he had been unable to reach Respondent and that Respondent had dismissed the case without Client 1's knowledge.

At the pretrial conference following reinstatement of the case, Respondent claimed that from the outset Client 1 had agreed to dismiss the case if Respondent determined the defendants had no means to pay any damages. However, Respondent never informed Client 1 of the defendants' financial status or Respondent's intent to dismiss the case. Respondent told the court he was unaware of the order excluding witnesses and exhibits. After giving the parties an opportunity to present argument on whether Client 1 could prosecute his case given his inability to present evidence, the court dismissed the case.

Respondent paid Client 1 $3,000 in exchange for Client 1's agreement not to file a lawsuit or disciplinary action against Respondent. Respondent did not inform Client 1 in writing of his right to seek independent counsel to determine whether the $3,000 transaction was in Client 1's best interest.

Count 2. On August 5, 2015, "Clients 2," "Husband" and "Wife," paid Respondent a $1,000 retainer to pursue a breach of contract claim against the previous owner of their home. Respondent failed to provide Clients 2 with updates, and Wife's attempts to contact Respondent were often unsuccessful.

In May 2016, Respondent informed Clients 2 that the $1,000 retainer had been exhausted and there was an outstanding balance. He also requested an additional $700 retainer for future work, which Clients 2 paid.

In September 2016, Respondent represented that he would e-file a complaint. His legal assistant later advised Clients 2 that the office had computer problems and if they paid a filing fee a complaint could be filed "manually." (HO's Report at 9.) Wife dropped the filing fee off at Respondent's office. However, the clerk did not accept the complaint for filing because Respondent's trust account had insufficient funds to cover the filing fee. The legal assistant next told Wife that she and Husband needed to come into the office to sign the lawsuit so it could be e-filed. The legal assistant set up four appointments for Clients 2 to meet with Respondent, but Respondent failed to attend any of the meetings.

In October 2016, Respondent's legal assistant told Wife that the lawsuit had not been filed and they should hire another attorney. Wife requested a copy of their file. The legal assistant promised to have it ready. Wife went to the office and was reviewing her file when Respondent arrived, grabbed the papers from Wife's hand, and told her that he would mail her the file.

On October 25, 2016, by email, Clients 2 fired Respondent and requested a full refund of $2,580. That afternoon, Respondent replied by email that he would send Wife a copy of their file within ten days and would review the time he spent on the file regarding her refund request. That evening, Respondent sent Wife a second email stating ( [sic] throughout):

My contract allows me 10 business days to return your file and bill. I am glad I returned to my office as you were taking advantage of my new secretary.
Good luck in your endouver. BE AVISED THAT THIS EMAIL NOTICE: DO NOT RETURN TO MY OFFICE-TREASPASS-DON'T CALL OR EMAIL MY OFFICE HARASSSMENT AND IF I FIND SLANDER OR LIBEL I WILL TAKE APPROPRIATE ACTION! That includes you your husband or any releative. YOU ARE ON NOTICE!!

(HO's Report at 11.)

Clients 2 never received their complete file or the return of any unearned fees. Respondent contended he was generous in not charging Clients 2 for their numerous calls to his legal assistant.

Count 3. Respondent owned two websites on which he advertised that his firm was composed of multiple lawyers, which was not true. Respondent was a solo practitioner. He admitted to the Commission that his websites were in error and claimed his web designer had locked him out of the sites, preventing him from making changes. This was untrue. Respondent had the capacity to modify the websites at all times. He also informed the Commission he had deactivated both websites, but both remained active.

On July 31, 2017, the Commission sent Respondent a subpoena duces tecum requesting a copy of the files for Client 1 and Clients 2. After Respondent failed to respond, the Commission filed a Petition for Rule to Show Cause. We ordered Respondent to respond to the subpoena and the Rule to Show Cause petition. Respondent replied that he intended to comply with the subpoena but needed more time to verify that the files he previously sent to the Commission were complete. Respondent claimed he had sent the Commission a letter by certified mail on August 14, 2017, tracking number 7017 0530 0000 3528 7815, requesting a thirty-day extension. He did not include a green card that would indicate the delivery of certified mail. The tracking number Respondent provided does not exist in the United States Postal Service system. When the Commission sought to have Respondent prove the veracity of his statements, he never responded.

Count 4. Respondent has mismanaged his trust account. Checks for $8,269.28 and $500 were presented against insufficient funds on, respectively, December 16, 2013, and May 10, 2016.

Respondent used Square Inc. to allow clients to pay by credit card. On July 25, 2016, a $1,454.85 automated clearing house debit from Square, Inc. was presented against insufficient funds. Respondent admitted to having multiple issues with Square Inc. His continued use of Square Inc. failed to safeguard client funds in the trust account.

On September 9, 2016, the Commission requested from Respondent a schedule of client and non-client funds in his trust account, trust account journals of all receipts and disbursements, client ledgers, and periodic monthly statements. In response, Respondent claimed the motherboard on his computer "went out," his "billing software was lost," and without his "billing software records, the detailed accounting that was required of [him] was not possible." (HO's Report at 16.)

The Commission subpoenaed Respondent's trust account records from the bank. From 2013 through 2016, Respondent commingled either personal or business funds with the client funds in his trust account. On multiple occasions he withdrew funds from his trust account using online or electronic transfers. In June 2016, he made five improper online or electronic transfers from his trust account to his personal or business checking account. In both July and August 2016, Respondent made at least one online or electronic withdrawal from his trust account and placed the funds in his business or personal checking account. These transfers from the Respondent's trust account were neither wire transfers nor checks made payable to named payees and none were based on written withdrawal authorizations.

Discussion and Discipline

We concur in the hearing officer's findings of fact and conclude Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

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.
1.8(a)(2): Entering into a business transaction with a client unless the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction.
1.15(a): Commingling client and attorney funds and failing to safeguard property of a client.
3.2: Failing to expedite litigation consistent with the interests of a client.
7.1: Making a false or misleading communication about the lawyer or the lawyer's services.
8.1(b): Failing to respond in a timely manner to the Commission's legal demand for information.
8.4(c): Engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

In addition, we conclude the Respondent violated the following Indiana Admission and Discipline Rules:

23(29)(a)(2): Failing to maintain and preserve a clear record of the date, amount, source, and explanation for funds held in trust.
23(29)(a)(5): Making withdrawals from a trust account without written withdrawal authorization stating the amount and purpose of the withdrawal and the payee.

The hearing officer cited as aggravating factors Respondent's selfish motive, pattern of misconduct, refusal to cooperate with the Commission, deceptive practices during the disciplinary proceedings, and failure to acknowledge the wrongful nature of his conduct. In mitigation, the hearing officer found Respondent has no prior discipline, with the exception of his current suspension for lack of cooperation related to this disciplinary action. The hearing officer recommended that Respondent be suspended from the practice of law for three years.

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 Newman , 958 N.E.2d 792, 800 (Ind. 2011).

Respondent's dishonesty and neglect of clients' cases are troubling. He failed both to keep clients informed and to advance their cases. He maintained websites with misleading information. He had multiple violations relating to his trust account. He fabricated a story that he sent a certified letter to the Commission, falsely represented he was locked out of his websites, and failed to cooperate in the Commission's investigation. He has not accepted responsibility for his misconduct and elected not to participate in these proceedings.

Misconduct of a similar nature has resulted in a lengthy suspension or disbarment. See Matter of Pierce , 80 N.E.3d 888 (Ind. 2017) ; Matter of Denney , 983 N.E.2d 571 (Ind. 2013) ; Matter of Powell , 893 N.E.2d 729 (Ind. 2008). The Commission has not sought disbarment in this case. The hearing officer recommended that Respondent be suspended for at least three years. We agree with the hearing officer's recommendation. After the suspension period, Respondent may be reinstated only after proving by clear and convincing evidence his remorse, understanding of the standards imposed on members of the bar, and fitness to practice law. See Ind. Admission and Discipline Rule 23(18)(b).

Conclusion

Respondent already is under an order of suspension for failure to cooperate with the Commission's investigation into his misconduct in this case. For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than three years, without automatic reinstatement, effective from the date of this opinion. 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. The hearing officer appointed in this case is discharged.

All Justices concur.

      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.