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Court split in public defender 'firm' issue

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In a disciplinary action released Wednesday by the Indiana Supreme Court, the justices disagreed as to whether two public defenders who worked part time in the same public defender office of Putnam County were "associated in a firm."

James R. Recker was charged by the Indiana Supreme Court Disciplinary Commission for violating Indiana Professional Conduct Rules 1.6(a), 1.8(b), and 1.8(k), which deal with revealing information relating to representation of a client without informed consent and prohibitions that apply to an attorney in one firm apply to all attorneys in the firm.

Recker and Laura Paul worked as part-time public defenders in Putnam County and shared office space provided by the county. Recker was appointed to represent A.B. in a CHINS proceeding, who was sharing a holding cell with X.Y., who Paul was appointed to represent. A.B. also had a private attorney, James Holder, for a criminal case. When Paul learned from the Putnam County prosecutor that her client would offer up some details in A.B.'s criminal case in exchange for a deal, she spoke with Recker about her situation because she hadn't experienced it before and mentioned A.B.'s name but not her client's name. She didn't know Recker was representing A.B.; Recker thought her client was a private client.

Recker then called Holder and told him A.B. was talking about his case. Paul's client was eventually removed from the shared cell and testified at A.B.'s murder trial.

In In the matter of James R. Recker, No. 49S00-0506-DI-302, the majority determined Recker didn't commit the charged attorney misconduct because he and Paul weren't members of a law firm while providing indigent defense services in the county. Because they weren't associated in the same firm, Recker didn't owe a duty to X.Y. when he told Holder the information he learned from Paul. The majority examined the definition of and comments related to "law firm" under the Professional Conduct Rules and its ruling in Matter of Sexson, 613 N.E.2d 841 (Ind. 1993), to support its decision. Although they shared common space, staff, letterhead, and a phone line, Recker and Paul didn't choose that situation as provided by the county and didn't hold themselves out for business to the public at the public defender office location.

The majority noted there is no uniform system of providing indigent defense among Indiana's counties, but under the Putnam County system, they aren't deemed to be members of a firm, "at least for the purpose of the rule that information acquired by one lawyer in a firm is attributed to another," the per curium opinion stated.

Justice Frank Sullivan dissented because he believed the majority employed an "overly technical" and "near-sighted" definition of "firm" and lost sight of the principal interest at stake: the inviolability of client confidences.

Under the majority's opinion, Sullivan argued that if Recker overheard a conversation between Paul and one of her clients, he would have no ethical obligation to keep the information confidential. The justice questioned how the hallmark of trust of the client-lawyer relationship can exist if the lawyer in the next cubicle can reveal that client's secrets simply because the lawyers aren't technically in the same "firm."

Sullivan believed that Recker had an ethical duty to keep confidential the client information disclosed to him by Paul and for that, he violated rules 1.6(a) and 1.8(k).

The Supreme Court expressed no opinion about whether Paul violated her duty to X.Y. because that issue wasn't before the court.

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  1. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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