Indy attorney on probation after court finds ‘neglect’ in cases

Editor’s note: This story has been updated to reflect that Small is on probation and not currently serving an active suspension.

An Indianapolis attorney who neglected several of his criminal and termination-of-parental-rights cases has begun a three-year probationary period for his misconduct.

The Indiana Supreme Court in a Thursday order imposed the discipline on Indianapolis attorney Mark Small for engaging in professional misconduct related to his cases. Justices said his one-year suspension begins May 20, with all of it stayed subject to completion of at least three years of probation.

Issues for Small revolve around his engagement in a pattern of neglect in numerous appeals, according to high court’s published order.

In In the Matter of: Mark Small, 19S-DI-647, the high court found that at least six appeals were dismissed due to Small’s neglect. In most other appeals, the high court noted that successor counsel was appointed or the Indiana Court of Appeals took other action to protect the clients’ appeals.

Small was determined to have violated the following Indiana Professional Conduct Rules:

• Rule 1.3
• Rule 1.16(a)
• Rule 8.4(d)

The Supreme Court found facts in aggravation include Small’s prior discipline and his pattern of misconduct at issue in the case at hand. Facts in mitigation, it found, include his cooperation, remorse, and engagement with the Judges & Lawyers Assistance Program to address factors contributing to his misconduct.

The terms and conditions of Small’s probation require that he remain under a long-term JLAP monitoring agreement for the duration of his probation, continue with mental health and supportive programming through JLAP, and follow all recommendations from medical professionals with respect to medication and/or mental health treatment, among other things.

If Small violates the terms of his probation, the stay of his suspension will be vacated and the balance of the stayed suspension shall be actively served without automatic reinstatement.

“Notwithstanding the expiration of the minimum term of probation set forth above, Respondent’s probation shall remain in effect until it is terminated pursuant to a petition to terminate probation filed under Admission and Discipline Rule 23(16),” Chief Justice Loretta Rush wrote for the court.

According to the Indiana Roll of Attorneys, Small was disciplined by the high court in 2004, when he was suspended for six months, stayed, and placed on probation for two years.

The costs of the proceedings are assessed against him.