A Connersville attorney accused of using client funds to pay for her children’s school tuition and of repeatedly making false assertions to the Disciplinary Commission, among numerous other “criminal and dishonest” acts, has been disbarred.
Indiana Supreme Court justices unanimously agreed to disbar Nicole D. Fraley in a Tuesday per curiam decision.
According to the 10-page order in In the Matter of Nicole D. Fraley, 18S-DI-304, Fraley was the subject of a three-count disciplinary action filed by the Indiana Supreme Court Disciplinary Commission on June 6, 2018.
In the first count of the complaint, the disciplinary commission alleged that between 2014 and 2018, Fraley “engaged in pervasive financial misconduct, including multiple overdrafts of her trust account, commingling of personal and client funds, use of trust account funds to pay personal or business expenses, failing to deposit client funds into a trust account and conversion of client funds.”
Further, in Count 2, the commission alleged that during its investigation into Fraley’s trust account mismanagement, she knowingly made false statements of material fact to the commission and submitted a false and forged affidavit purportedly executed by her former paralegal.
Finally, in Count 3, the disciplinary commission alleged it initiated a noncooperation case against Fraley due to her failure to respond to requests for information, which was dismissed with costs after she belatedly complied. Fraley did not pay those costs in a timely manner, however, prompting the commission to send her a notice letter in advance of petitioning for a costs nonpayment suspension.
Fraley replied with a letter to the commission falsely stating she had paid her costs, the commission’s allegations continued. She attached to that letter a copy of a check purportedly drawn on her personal checking account, which she falsely represented that she had previously mailed to the commission.
The commission then requested a copy of the cancelled check and bank records from Fraley showing that the check was presented for payment. Fraley did not provide those items, the commission said, but instead provided a money order to “serve[ ] as a replacement for the original check,” which she claimed had not been returned to her office or cashed.
The commission and hearing officer ultimately charged Fraley with violating six Indiana Professional Conduct Rules, including Rules 1.15(a) and (c), 8.1(a), and 8.4(b), (c) and (d). It also asserted she violated Indiana Admission and Discipline Rules 23(29)(a)(4) and (5) (2016), 23(29)(a)(4) (2017), and 23(29)(c)(2), (4) and (5) (2017).
“In her petition for review, Respondent largely does not contest the accounting violations underlying Count 1, although she contends those violations did not result in conversion of client funds. Regarding Counts 2 and 3, Respondent essentially invites us to reweigh what she claims is conflicting evidence presented to the hearing officer,” the Supreme Court’s per curiam order reads.
But following its own de novo examination, the Supreme Court concluded Fraley’s arguments were “wholly unavailing,” noting in a footnote that its review has “revealed ample, and indeed overwhelming, support for the findings in the hearing officer’s report.”
First turning to the issue of converting client funds, the Supreme Court concluded Fraley’s admission to having improperly commingled client and personal funds in her trust account necessarily acknowledges the existence of client funds in that account. Likewise, it found ample direct and circumstantial evidence that she converted client funds for her own personal use.
“To cite just two of the more blatant examples, Respondent deposited a $300 retainer for one client and then promptly withdrew $323.89 as her ‘flat fee’ in that case, which Respondent acknowledged ‘doesn’t make any sense’ and left her in the negative with that client,” the per curiam order states.
“In a second client’s case, involving the handling of settlement proceeds that indisputably included client funds being processed through the trust account, Respondent claimed to have paid $1,112 to that client’s insurer when in fact Respondent had paid this amount to another client. Respondent also told the Commission that two checks totaling about $7,800 drawn from settlement proceeds in that case were written to a church’s building and scholarship funds pursuant to the terms of settlement, when in fact those checks were payments for Respondent’s children’s private school tuition,” the high court wrote.
Additionally, the court found overwhelming evidence to support the commission’s findings of Fraley’s pattern of deception in the forgery of an affidavit provided to the commission, a series of false statements made to the commission regarding an “extensive accounting” of her trust account allegedly performed by a bank manager at Fraley’s request, and numerous other false statements made regarding her accounting practices.
“In sum, we find sufficient support for the hearing officer’s findings and conclusions with regard to all three counts against Respondent, and we likewise find Respondent violated each of the rules set forth above,” the high court wrote.
“Respondent lied at innumerable junctures to the Commission and during sworn testimony, forged an affidavit containing false statements of material fact, falsified a personal check, and even invented a fictitious bank manager – all in an effort to extricate herself from various investigations and proceedings that began as simple overdraft inquiries,” the court concluded. “Put simply, the criminal and dishonest nature of Respondent’s pattern of misconduct demonstrates that she cannot be safely recommended to the public as a person fit to practice law.
“Further, Respondent’s total lack of insight during these proceedings into the wrongfulness of failing to account for client funds and using those funds to pay personal expenses, and her utterly inexplicable decisions during the progression of this case to double and even triple down on her demonstrably false statements, persuade us that her fitness to practice law is not capable of being restored.”
Fraley’s discipline is effective immediately, and the costs of the proceeding are assessed against her.