Justices impose 3-year suspension on lawyer who took guardianship funds

A Warrick County attorney who was already suspended from the practice of law for failure to comply with court orders has been disciplined with an additional three-year suspension after he converted an elderly woman’s guardianship funds to himself.

As a court-appointed guardian of an incapacitated 88-year-old woman living in a Warrick County nursing home, Gene Emmons, a Booneville attorney, became a signatory on the woman’s PTSB and PNC bank accounts. The PTSB account was an attorney fiduciary account subject to overdraft reporting to the Supreme Court Disciplinary Commission.

Without authorization, Emmons wrote three checks to himself totaling $20,000 from the PTSB account, noting in the subject line that they checks were for “legal fees.” The court ordered Emmons to prepare a biennial accounting of his guardianship over the woman in 2015, which he failed to do, prompting his removal as her guardian. Emmons was then ordered to file a final accounting, which he also did not complete.

Emmons then failed to appear at a court-ordered hearing for his failure to comply with the accountings, and he did not respond to an investigation into his actions by the Disciplinary Commission.  Subsequent show cause proceedings resulted in Emmons’ indefinite suspension due to his noncooperation in 2016 in Matter of Emmons, 52 N.E.3d 797 (Ind. 2016).

Emmons was found to have violated Indiana Professional Conduct Rules 1.15(a), 3.4(c), 8.1(b) and 8.4(b), (c) and (d) as well as Rule 4(A)(2) of the Indiana Supreme Court Disciplinary Commission Rules Governing Attorney Trust Account Overdraft Reporting. The commission recommended that Emmons be suspended for at least three years without credit for his previous noncooperation suspension, and the Indiana Supreme Court agreed in the case of In the Matter of: Gene D. Emmons, 87S00-1604-DI-190.

In a per curiam opinion handed down Tuesday, the justices wrote that Emmons’ conversion of the guardianship funds and his attempts to conceal his actions were “among the most serious types of misconduct.” While the American Bar Association’s Standards for Imposing Lawyer Sanctions recommend disbarment for such conduct, the court noted that the commission had found Emmons’ inexperience as an attorney and lack of prior disciplinary actions as mitigating factors. Emmons was admitted to practice in 2008.

The court agreed to the recommendation of a three-year suspension without automatic reinstatement. If Emmons chooses to petition for reinstatement after the three-year period has expired, he will have to “prove his professional rehabilitation by clear and convincing evidence.” The costs of the proceedings were also assessed against him.

Justice Steven David voted to reject the conditional agreement proposed by the Disciplinary Commission and Emmons.