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In re Everett E. Powell, II

Indiana Supreme Court
953 N.E.2d 1060 (2011)


Facts

T.G. obtained a settlement in a personal injury suit. Because T.G. had a history of substance abuse, was receiving public assistance, and was in an abusive relationship, she voluntarily had her attorney, Mark E. Ross, place $42,000 from the settlement in a special-needs trust in order to preserve her rights to public assistance and to prevent rapid depletion of the settlement. Ross agreed to act as the trustee. Soon after the creation of the trust, T.G. began demanding access to the money. Ross sent letters to T.G. reminding her of the purpose of the trust and stating that he was willing to resign as trustee if T.G. could find another qualified trustee. T.G. consulted with attorney Everett E. Powell (defendant) about the trust and her desire to access the settlement money. Powell agreed to take the case on a contingent basis. Powell prepared a contingent agreement under which he would provide legal services to remove Ross as the trustee in exchange for a fee of one-third of the money in the trust. The next day, Powell contacted Ross, and they agreed that Powell would take over as trustee. Powell, Ross, and T.G. signed an agreement making Powell the trustee the next day. Powell then created documents terminating the trust, and withdrew the funds from the trust account in his purported capacity as trustee. Powell retained almost $15,000 of the trust funds as his fee, with the rest of the money going to T.G. Powell’s was investigated by the Indiana Supreme Court Disciplinary Commission (plaintiff), which charged him with misconduct for collecting an unreasonable fee. The hearing officer found that Powell was unremorseful, failed to cooperate with the investigation, and had made misrepresentations during the matter.

Rule of Law

Issue

Holding and Reasoning (Per curiam)

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