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Attorney discipline process goes public

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Ohio attorney Derek Farmer watched in silence Oct. 24 as opposing lawyers described him to the Indiana Supreme Court as two starkly different people. Accused of the unauthorized practice of law in Indiana, he had asked for this.

The usually confidential proceedings of the Indiana Supreme Court Disciplinary Commission were on full display in this case, “the type of which we rarely see in this court,” Chief Justice Brent Dickson acknowledged at the outset of oral arguments granted at Farmer’s request in State of Indiana ex rel Indiana Supreme Court Disciplinary Commission v. Derek Farmer, 94S00-1103-MS-165.
 

farmer-derek-mug.jpg Farmer

Little is common about the matter or about Farmer. He’s courted controversy since being admitted to practice law in Ohio. He was convicted as a young accomplice in the 1974 murder of a civil-rights figure and a Dayton police officer. Farmer was 16 at the time and running with an 18-year-old relative who pulled the trigger in both killings after the pair robbed a jewelry store.

Farmer, who deferred comment to his attorney, Ice Miller LLP partner Mary Nold Larimore, used his 18 years in prison to study, and he committed to turning his life around. In 1999, he became the only attorney in Ohio admitted after a conviction in connection with a murder.

Before the Supreme Court, Larimore questioned why Indiana was trying to sanction Farmer for the same alleged violation that Ohio’s attorney discipline agency declined to pursue: accusations that he engaged in the unauthorized practice of law. “Indiana should respect the process in Ohio,” she said. The disciplinary commission began its investigation in March 2011.

Larimore said Farmer had been vouched for by prominent Ohio legal figures who attested to the quality of his work. Character testimony on his behalf was given to the Indiana Disciplinary Commission by Walter Herbert Rice, senior judge in the U.S. District Court for the Southern District of Ohio in Dayton; and by Dayton attorney David C. Greer.

“(Greer’s) belief is that many of the – I believe he called them ‘tin cans’ – that had been attached to Derek over the years are indeed as a consequence of his past and as a consequence of his race,” Larimore argued to the justices.

In a phone interview, Greer acknowledged saying as much to the commission. “I can’t think of any other legitimate reason for (Farmer’s case) to move forward,” he said.

‘Safe harbor’ at issue

Farmer is accused of violating Rule of Professional Conduct 5.5 that requires out-of-state attorneys to register in Indiana to practice in the state. At issue is what constitutes the practice of law and whether the location of that practice makes a difference.

“He has engaged in the unauthorized practice of law by representing an Indiana inmate on a post-conviction relief matter in Delaware County for a period of three to four years,” disciplinary commission attorney Angie Ordway told the justices in seeking an injunction against Farmer.

Ordway made the state’s case that Farmer represented convicted murderer John Ivy on a post-conviction relief matter beginning in 2002 without ever registering. Farmer reviewed Ivy’s case but never was retained and never filed a pleading or entered an appearance, according to evidence.

Justice Robert Rucker pressed Ordway. “The fact he interviewed an inmate, interviewed witnesses, interviewed them in Indiana, those are the unauthorized practice of law?”

“He’s trying to use the ‘safe-harbor’ provision to practice for three years without ever applying,” Ordway subsequently argued.

The safe-harbor provision in Rule 5.5(c) allows attorneys to practice in multistate jurisdictions “on a temporary basis” in some circumstances.

Dickson used the hypothetical case of an out-of-state attorney doing extensive background work on an Indiana case in which there is at least a tacit understanding that the attorney would represent the client in the future. “It would be difficult for me to say that’s not practicing law in the state of Indiana,” he said to Larimore.

“The agreement was to do post-conviction work,” she said. “What (Rule 5.5) says you may do is exactly what he did here – interview clients, conduct an investigation.”

She argued that “temporary” may apply to a matter that covers a number of years, and should be read as a limited practice in a state.

Intent to practice

Farmer’s past also includes a run-in with Ohio’s attorney discipline system.

He was suspended in 2006, after most of his involvement with Ivy had concluded, when the Ohio Supreme Court found that he was overpaid for doing minimal work for two convicted murderers seeking post-conviction relief, and that he failed to refund unearned fees. Farmer was reinstated in 2007. Larimore said Farmer notified Ivy and his other clients that he had been suspended.

Along with failing to register, Indiana also has charged that Farmer violated Rule 5.5 by failing to disclose his suspension to the state when he failed to apply for pro hac vice admission. He appears to have done little or nothing on Ivy’s case during the time he was suspended, but he apparently had made arrangements to drive to Indiana to interview a witness during his suspension before deciding otherwise.

“The Disciplinary Commission stipulated he did not travel to Indiana during the period of suspension,” Larimore said. “Before the Indiana Supreme Court, they’re trying to amend the charge and say he got in a car and intended in Ohio to come to Indiana. He never left the state. If there’s an issue, it’s an Ohio issue, and it’s their belief he meets Rule 5.5.” She said the rules in both states are identical.

Ordway said, “Simply working on an Indiana case is a practice of law in Indiana, regardless of where he’s located.”

Uncivil process?

During oral arguments, Dickson admonished the commission for the manner in which it had attempted to limit evidence in Farmer’s confidential case.

“Why file a motion to strike?” he asked Ordway.

“I’m particularly troubled because it’s done by our disciplinary commission, which is supposed to set the example for civil practice,” Dickson said. “It seems to be Exhibit A for questionable civility.”

Ordway responded that she believed it was the only way to object to a particular pleading.

Justice Mark Massa asked Larimore and Ordway if the court would be setting bad precedent if it granted the state’s request for an injunction against Farmer. He wondered whether it might have a chilling effect on groups such as the Innocence Project, for instance, that investigate cases that require voluminous research that might be conducted by attorneys from other states.

“I think it would be a significantly limiting factor,” Larimore said. “I think when Ohio says that (Farmer) meets Rule 5.5, that there should be some comity there.”

Ordway disagreed. “This is not a case with far-reaching consequences,” she said. “Most lawyers don’t have disciplinary issues.” Those who do should disclose it as the admission rules require, she said, “and let a trial court decide. Don’t subvert that process and never apply.”

She also said Ohio’s disclosure requirements differ from Indiana’s, and that the Indiana Supreme Court has jurisdiction over attorney discipline. “The Ohio letter (clearing Farmer) is inconsequential,” she said, adding that support for Farmer from fellow Ohioans carries little weight.

“There’s nothing in our application rules about filing affidavits from people who think you do a good job,” she said.

Greer, the Ohio attorney who testified for Farmer before the commission, said he’s known Farmer since he graduated law school. “My motivation to testify on his behalf was in hopes of seeing fairness and justice dispensed in the state of Indiana,” he said.

Disciplinary Commission Executive Director G. Michael Witte said Farmer’s case is the first attorney disciplinary matter granted oral argument during his tenure dating to June 2010. He said he could not comment about the matter prior to a decision from the Supreme Court.•

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  • A bit harsh perhaps
    It seems to me, with the limited facts mentioned in this article, that what he was doing was nothing more than what a typical paralegal does in the state of Indiana - without a license. If indeed, what he was doing was "interview clients, and conduct an investigation” then it would seem hypocritical to consider that the unauthorized practice of law while thousands of paralegals in our State do the exact same thing every day, under protection of law.

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  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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