Attorney who failed to file appeal then lied about conduct suspended

An attorney who failed to timely file an appellant’s brief for a client seeking an expungement then lied about his work on the case has been suspended from the practice of law in Indiana for at least 90 days.

South Bend attorney Marcus Ellison was a supervisor at a pro bono expungement clinic sponsored by Ivy Tech Community College, but had no experience in expungement appeals. Even so, Ellison agreed to represent a client in an appeal of the denial of her petition to expunge a misdemeanor theft conviction and filed notice of the appeal in September 2015.

Notice of the completion of the transcript was then filed in November 2015, but Ellison failed to subsequently file an appellant’s brief that was due the following December. The client began emailing Ellison to ask about the status of her appeal, and he falsely implied the brief had been filed in two of his replies.

Then in March 2016, the online appellate docket indicated the appeal would be dismissed for failure to file an appellant’s brief. When the client emailed Ellison demanding an explanation, he chose not to respond, but rather moved in the Indiana Court of Appeals for leave to file a belated brief, falsely claiming he had appended the brief to the transcript and notice of appeal, but apparently did not attach it.

Ellison emailed a copy of the tendered brief to his client, who was able to discern that it had not been accepted for filing. The appeal was then dismissed with prejudice, though Ellison failed to inform his client of the dismissal or of any available options.

The client eventually filed a grievance with the Indiana Supreme Court Disciplinary Commission, which Ellison responded to by giving knowingly false explanations of his conduct on two occasions. Based on the results of the grievance investigation, Ellison was found to have violated seven Indiana Professional Conduct Rules, including:

• Rule 1.1
• Rule 1.3
• Rule 1.4(a)(3)
• Rule 1.4(b)
• Rule 3.3(a)(1)
• Rule 8.1(a)
• Rule 8.4(c)

Though Ellison has no prior discipline, the Indiana Supreme Court wrote Wednesday his “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,” the court wrote in a Wednesday per curiam opinion. “Moreover, Respondent has not accepted responsibility for any wrongdoing or demonstrated any insight into his misconduct.”

Thus, the court imposed a 90-day suspension without automatic reinstatement, effective Jan. 31. Ellison can petition for reinstatement at the end of the 90 days if he has paid the costs of the proceedings, fulfilled the duties of a suspended attorney under Admission and Discipline Rule 23(26) and satisfied the requirements for reinstatement under Admission and Discipline Rule 23(18).